UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
Chelsea GCA Realty, Inc.
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
163262
(CUSIP Number)
James M. Barkley
Simon DeBartolo Group, L.P.
115 Washington Street
Indianapolis, Indiana 46204-3464
(317) 636-1600
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
June 16, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box [ ].
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
<PAGE>
CUSIP No. 163262
(1) NAMES OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS
Simon DeBartolo Group, L.P.
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) [ ]
(b) [ ]
(3) SEC USE ONLY_____________________________________________________
(4) SOURCE OF FUNDS (SEE INSTRUCTIONS) WC
(5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE
<TABLE>
<CAPTION>
Number of (7) SOLE VOTING POWER 1,408,450
<S> <C> <C> <C>
Shares Beneficially (8) SHARED VOTING POWER -0-
Owned by Each (9) SOLE DISPOSITIVE POWER 1,408,450
Reporting Person (10) SHARED DISPOSITIVE POWER -0-
</TABLE>
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON 1,408,450
(12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS) [ ]
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.2% (SEE ITEM 5)
(14) TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
PN
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the common stock, $.01 par value
("Common Stock"), of Chelsea GCA Realty, Inc. ("Issuer"), a
Maryland corporation. Issuer's principal executive offices are
located at 103 Eisenhower Parkway, Roseland, New Jersey 07068.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 13D is filed on behalf of Simon DeBartolo Group,
L.P. (the "Operating Partnership"), a Delaware limited
partnership engaged primarily in the ownership, development, and
management of income-producing properties, primarily regional
malls and community shopping centers.
The Operating Partnership is a majority-owned subsidiary of Simon
DeBartolo Group, Inc. (the "Company"), a Maryland corporation
that is a self-managed and administered REIT. The Company is a
general partner of the Operating Partnership.
SD Property Group, Inc.("SD", and, together with the Company, the
"General Partners"), is also a general partner of the Operating
Partnership. SD is an Ohio corporation and is the managing
general partner of the Operating Partnership. SD is a 99.9%
owned subsidiary of the Company.
The Operating Partnership and the General Partners have their
principal business and office addresses at 115 West Washington
Street, Indianapolis, Indiana 46204. Information concerning the
executive officers and directors of the Company is attached as
Exhibit 99. The Company's directors and executive officers are
SD's directors and executive officers.
During the past five years, none of the Operating Partnership,
the General Partners, or (to the knowledge of the Operating
Partnership) the individuals listed on Exhibit 99 (which is
incorporated herein by reference) has (i) been convicted in any
criminal proceeding (excluding traffic violations or similar
misdemeanors), or (ii) been a party to any civil proceeding of a
judicial or administrative body of competent jurisdiction
resulting in any judgment, decree or final order against any of
them, enjoining any of them from engaging in future violations
of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On June 16, 1997, Issuer sold to the Operating Partnership
1,408,450 shares of Common Stock for an aggregate purchase price
of $49,999,975. The Operating Partnership funded the purchase of
the Common Stock from its working capital.
<PAGE>
ITEM 4. PURPOSE OF TRANSACTION.
The Operating Partnership acquired the Common Stock for
investment purposes. The Company and the Issuer have also
entered into a joint venture to develop or acquire manufacturers'
outlet shopping centers.
The Operating Partnership intends to review its holdings with
respect to Issuer on a continuing basis. Depending on the
Operating Partnership's evaluation of the Issuer's business and
prospects, compliance with the agreement between the Operating
Partnership and Issuer described in Item 6, the effects of any
change in ownership on the General Partners' qualifications as
REITs, and future developments (including, but not limited to,
market prices of the shares of Common Stock, the availability and
alternative uses of funds, conditions in the securities markets,
and general economic and industry conditions), the Operating
Partnership may acquire other securities of Issuer, sell all or a
portion of its shares of Common Stock or other securities of
Issuer now owned or hereafter acquired, or maintain its position
at current levels.
Other than as described herein, neither the Operating Partnership
nor the General Partners have present plans or proposals relating
to, or that would result in, any of the matters listed in
paragraphs (a)-(j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) As of June 16, 1997, the Operating Partnership owned of
record 1,408,450 shares of Common Stock.
Based upon the number of outstanding shares of Common Stock
reported in Issuer's report on Form 10-Q for the period
ended March 31, 1997, the Operating Partnership's shares
represent 9.2% of Issuer's outstanding Common Stock.
As the corporate parent and a general partner of the
Operating Partnership, the Company may be deemed the
beneficial owner of the Operating Partnership's shares of
Common Stock. As a general partner of the Operating
Partnership, SD may be deemed the beneficial owner of the
Operating Partnership's stock.
(b) The Operating Partnership has the power to direct the vote
and disposition of the Operating Partnership's 1,408,450
shares of Common Stock. As the corporate parent and a
general partner of the Operating Partnership, the Company
controls both voting and investment power over such shares.
As a general partner of the Operating Partnership, SD
controls both voting and investment power over such shares.
(c) Pursuant to a Stock Subscription Agreement dated as of May
16, 1997 between the Operating Partnership and Issuer (the
"Subscription Agreement"), the Operating Partnership agreed
to purchase 1,408,450 shares of Common Stock at $35.50 per
share for a total of $49,999,975. The purchase was
completed on June 16, 1997.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENT, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Pursuant to the Subscription Agreement, a copy of which is filed
as Exhibit 10.1 to this Schedule and incorporated by reference
herein, the Operating Partnership and Issuer have agreed to a
number of provisions relating to the Common Stock acquired by the
Operating Partnership, including (i) Issuer's agreement not to
reduce the number of outstanding shares of Common Stock if the
reduction would cause the Operating Partnership's ownership of
Common Stock to equal 10% or more; (ii) Issuer's agreement to
permit the Operating Partnership to purchase additional shares of
Common Stock in order to maintain its proportionate ownership of
Common Stock in the event of future sales of Common Stock for
cash; (iii) the Operating Partnership's agreement not to take the
following actions or permit an affiliate to take such actions,
subject to certain exceptions: (A) acquire additional voting
securities of Issuer; (B) solicit proxies to vote Issuer voting
securities or participate in an election contest involving
Issuer; (C) deposit any Issuer voting securities in voting trust;
(D) engage in a tender or exchange offer; (E) take any action to
acquire or change control of Issuer; or (F) sell, transfer or
pledge any Common Stock other than in a public offering or in
accordance with the volume restrictions of Rule 144 or to an
affiliate who agrees to be bound by the restrictions of the
agreement between the Operating Partnership and Issuer. The
restrictions in clause (iii) will terminate earlier if Issuer
enters into an agreement for a merger, consolidation, sale of
substantially all of its assets or an offer to purchase a
majority of the outstanding shares of Common Stock or if a person
or group of persons unaffiliated with the Operating Partnership
makes such an offer and the offer is not opposed by Issuer.
Issuer has also agreed that if the Operating Partnership acquires
Common Stock for an aggregate purchase price of $100 million, to
use its best efforts to cause a designee of the Operating
Partnership to be elected a director of Issuer.
Pursuant to the Registration Rights Agreement dated May 16, 1997,
a copy of which is filed as Exhibit 10.2 to this Schedule and
incorporated by reference herein, Issuer has agreed to provide
the Operating Partnership and transferees of Common Stock
acquired by the Operating Partnership with certain rights to
require Issuer to register such shares for resale under a
registration statement filed under the Securities Act of 1933, as
amended.
None of the Operating Partnership, the General Partners, or the
individuals listed on Exhibit 99 has entered contracts,
arrangements, understandings, or relationships other than as
disclosed herein with respect to any securities of the Issuer,
including, but not limited to, transfer or voting agreements,
finders fees, joint ventures, loan or option arrangements, puts
or calls, guarantees of profits, divisions of profit or loss, or
the giving or withholding of proxies.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
EXHIBIT TITLE
10.1 Stock Subscription Agreement dated as of May 16, 1997,
between the Operating Partnership and Issuer.
10.2 Registration Rights Agreement dated as of May 16, 1997,
between the Operating Partnership and Issuer.
99 Executive Officers and Directors of the Company, a
general partner of the Operating Partnership.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
SIMON DEBARTOLO GROUP, L.P.
By: SIMON DEBARTOLO GROUP, INC., a General Partner
By: /S/ JAMES M. BARKLEY
James M. Barkley,
General Counsel and Secretary
Dated: June 19, 1997
<PAGE>
EXHIBIT INDEX
EXHIBIT TITLE
10.1 Stock Subscription Agreement dated as of May 16, 1997, between
the Operating Partnership and Issuer.
10.2 Registration Rights Agreement dated as of May 16, 1997,
between the Operating Partnership and Issuer.
99 Executive Officers and Directors of the Company, a general
partner of the Operating Partnership.
EXHIBIT 10.1
STOCK SUBSCRIPTION AGREEMENT
AGREEMENT made this 16th day of May, 1997, by and between
Chelsea GCA Realty, Inc., a Maryland corporation (the "Company"),
and Simon DeBartolo Group, L.P. (the "Buyer").
W I T N E S S E T H :
WHEREAS, concurrently herewith Buyer and Chelsea GCA
Realty Partnership, L.P. are entering into a Limited Liability
Company Agreement of Simon/Chelsea Development Co., L.L.C. (the
"Venture Agreement"); and
WHEREAS, the Company, the general partner of Chelsea GCA
Realty Partnership, L.P., desires to issue and sell to Buyer
shares (the "Shares") of Common Stock of the Company, $.01 par
value per share (the "Common Stock"), and the Buyer desires to
purchase the Shares from the Company;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereby agree as
follows:
1. PURCHASE OF THE SHARES. The Company hereby agrees to
issue and sell to Buyer, and Buyer hereby agrees to
purchase from the Company, an aggregate of 1,408,450
Shares of the Company. The purchase price to be paid by
Buyer for the Shares is $35.50 per share, or an aggregate
of $49,999,975. The purchase price will be paid by the
delivery by Buyer to the Company of a certified or bank
cashier's check in such amount payable to the order of
the Company or by wire transfer to an account designated
by the Company. The purchase price will be payable
concurrently with the delivery of the Shares to Buyer,
which delivery shall occur as promptly as practicable
after such Shares have been listed on the New York Stock
Exchange.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to Buyer as follows:
2.1 The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Maryland.
2.2 All corporate and other proceedings required to be taken
by or on the part of the Company to authorize it to carry
out this Agreement have been duly and properly taken.
2.3 This Agreement has been duly and validly executed and
delivered by the Company and constitutes the valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms.
2.4 The Shares, when delivered pursuant to Section 1 hereof,
will be validly issued and outstanding, fully paid and
nonassessable. The Company agrees to cause the Shares to
be issued promptly after such Shares have been listed or
approved for listing on the New York Stock Exchange,
together with evidence of such listing to Buyer.
Promptly after the date hereof, the Company shall apply
for listing of the Shares on the New York Stock Exchange.
2.5 Neither the execution and delivery of this Agreement nor
the carrying out of the transactions contemplated hereby
will result in violation of, or be in conflict with, the
Articles of Incorporation or By-Laws of the Company or
any agreement or indenture of any kind binding upon the
Company.
2.6 The Company has filed with the Securities and Exchange
Commission and made available to Buyer its Annual Report
on Form 10-K for the fiscal year ended December 31, 1996
and its Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997 (collectively, the "SEC
Documents"). The SEC Documents, when filed (a) did not
contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading, and (b) complied in all material respects
with the applicable requirements of the Securities
Exchange Act of 1934. Since March 31, 1997, there has
not been any material adverse change in the financial
condition or operations of the Company.
2.7 The Company has qualified as a Real Estate Investment
Trust ("REIT") under the Internal Revenue Code of 1986,
as amended (the "Code"), for its taxable year ended
December 31, 1996, and the Company is organized and
operates in a manner that will enable it to continue to
qualify to be taxed as a REIT under the Code.
2.8 Without the Buyer's consent, the Company will not take
any action to reduce the number of outstanding shares of
Common Stock if such reduction would cause Buyer's
ownership of Common Stock to constitute 10% or more of
the outstanding Common Stock of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER. Buyer
hereby represents and warrants to the Company as follows:
3.1 All proceedings required to be taken by or on the part of
the Buyer to authorize it to carry out this Agreement
have been duly and properly taken.
3.2 This Agreement has been duly and validly executed and
delivered by Buyer and constitutes the valid and binding
obligation of Buyer enforceable against Buyer in
accordance with its terms.
3.3 Neither the execution and delivery of this Agreement nor
the carrying out of the transactions contemplated hereby
will result in violation of, or be in conflict with, the
Agreement of Limited Partnership of Buyer or any
agreement or indenture of any kind binding upon the
Buyer.
3.4 Buyer is acquiring the Shares for its own account for
investment without any intention of distribution thereof
within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"); Buyer will not sell,
transfer, assign or pledge any Shares (but may pledge
dividends or distributions thereon) except pursuant to an
effective registration statement or an exemption from
registration under the Securities Act and the rules and
regulations thereunder and understands that the
certificates for the Shares will bear a legend to such
effect. Buyer acknowledges that it is aware that the
Shares must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from
such registration is available; that although the Company
now makes publicly available the information required by
Rule 144 under the Securities Act, it may not be under an
obligation to do so in the future and that any routine
sales of any of the Shares made in reliance upon Rule 144
under the Securities Act may be made only in limited
quantities in accordance with the terms and conditions of
Rule 144.
3.5 Buyer has knowledge and experience in financial and
business matters, is capable of evaluating the merits and
risks of the investment in the Company and is able to
bear the economic risk of such investment. Buyer is an
accredited investor as defined under the Securities Act.
4. INVESTIGATION BY BUYER. Buyer has had and has availed
itself of the opportunity to conduct such examination of
the business and financial condition of the Company as
Buyer has deemed necessary in connection with Buyer's
investment in the Company and has had the opportunity to
acquire such additional information about the business
and financial condition of the Company as Buyer deems
appropriate.
5. SUBSEQUENT SHARES. If at any time and from time to time
while the Venture Agreement remains in full force and
effect, the Company sells for cash any equity securities
(or securities convertible into or exercisable or
exchangeable for equity securities) (the "Offered
Shares") in a public or private offering either
registered pursuant to the Securities Act or exempt from
registration under the Securities Act (the "Offering"),
then Buyer shall have the right to purchase concurrently
with the closing of, and on the same terms as, the
Offering a number of Offered Shares equal to the number
of Offered Shares multiplied by a fraction, the numerator
of which is the number of shares of Common Stock then
owned by Buyer and the denominator of which is the total
number of issued and outstanding shares of Common Stock
of the Company prior to the Offering. The Company shall
notify the Buyer of the proposed terms of the Offered
Shares (which may consist of the mechanism for
establishing the offering price) not less than 30 days
prior to the anticipated date of closing of the Offering.
If the Buyer desires to purchase any of the Offered
Shares, it shall notify the Company within 20 days after
receipt of the notice from the Company how many Offered
Shares it wishes to purchase. If the Buyer does not so
notify the Company, the Company may sell the Offered
Shares free from the Buyer's rights under this Section.
If at any time Buyer does not elect to purchase Offered
Shares in two consecutive Offerings or in a total of
three Offerings, the provisions of this Section shall be
terminated and of no further force or effect and Buyer
shall no longer have rights under this Section 5 to
purchase any equity securities in the future. The rights
granted to Buyer pursuant to this Section 5 shall not
apply to any equity securities (or securities convertible
into or exercisable or exchangeable for equity
securities) (a) issued pro rata to all holders of Common
Stock; (b) upon the conversion or exercise of options,
warrants or convertible securities; (c) issued to
employees, officers or directors of the Company pursuant
to stock option plans or other plans approved by the
Board of Directors of the Company; or (d) issued in
connection with the acquisition of any property or
acquisition (by merger, consolidation, purchase,
reorganization or otherwise) of all of the stock or other
equity securities of a company or all or substantially
all the assets of a business.
6. RESTRICTIONS ON CERTAIN ACTIONS. During the earlier of
(a) five years from the date of this Agreement or (b) two
years after the termination of the Venture Agreement,
except as permitted pursuant to Section 5 hereof, Buyer,
without the prior consent of the Company's Board of
Directors will not, nor will it permit any affiliate (as
such term is defined in Rule 12b-2 of Regulation 12B
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of Buyer to:
(a) acquire (other than through stock splits or stock
dividends), directly or indirectly or in conjunction with
or through any other person, by purchase or otherwise,
beneficial ownership of any additional shares of Common
Stock or any other securities of the Company entitled to
vote generally for the election of directors ("Voting
Securities");
(b) directly or indirectly or through any other person,
solicit proxies with respect to Voting Securities under
any circumstance; or become a "participant" in any
"election contest" relating to the election of directors
of the Company (as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act); provided,
however, that the foregoing shall not prohibit Buyer from
soliciting proxies for the purpose of opposing any
increase in the ownership limitation currently contained
in the Company's Articles of Incorporation.
(c) deposit any Voting Securities in a voting trust, or
subject any Voting Securities to a voting or similar
agreement;
(d) directly or indirectly or through or in conjunction with
any other person, engage in a tender or exchange offer
for the Company's Voting Securities made by any other
person or entity without the prior written approval of
the Company, or engage in any proxy solicitation with any
person or entity relating to the Company;
(e) take any action alone or in concert with any other person
to acquire or change the control of the Company or,
directly or indirectly, participate in any group seeking
to obtain or take control of the Company; or
(f) sell, transfer, pledge or otherwise dispose of or
encumber any Voting Securities except (i) as set forth in
Section 7 hereof, (ii) to an affiliate of the Buyer,
provided that the transferee agrees to be bound by all
the provisions of this Agreement, or (iii) pursuant to a
public offering of the Shares registered under the
Securities Act.
7. SALE OF VOTING SECURITIES. Except as otherwise provided
in Section 6(f) hereof, if, during the period set forth
in Section 6, Buyer desires to sell all or part of its
holdings of Voting Securities, such sale shall be made
only as follows. Buyer may sell all or part of its
holdings of Common Stock: (i) in a public offering
registered under the Securities Act or (ii) in accordance
with the volume limitations of Rule 144 under the
Securities Act or any successor rule. Buyer shall give
the Company at least five days' prior written notice of
any such proposed sale.
8. TERMINATION OF RESTRICTIONS. The restrictions contained
in Sections 6 and 7 hereof shall terminate in any of the
following events:
(a) the Company enters into an agreement calling for the
merger or consolidation of the Company with or into any
other corporation (other than a wholly-owned subsidiary
of the Company) in which the Company shall not be the
survivor or in which the Company's outstanding capital
stock shall be converted into cash or other property or
if the Company enters into an agreement to sell all or
substantially all of its assets to another corporation
(other than a wholly-owned subsidiary of the Company);
provided, however, that this provision shall not apply to
a merger, consolidation or sale in which the securities
received by the holders of Voting Securities of the
Company in such consolidation, merger or sale constitute
a majority of such other corporation's Voting Securities
immediately after the merger, consolidation or sale (in
which event the provisions of this Agreement shall apply
to the Voting Securities of such other corporation);
provided, further, however, that during the period set
forth in Section 6 the Company agrees to notify the Buyer
of any of the events described in this subparagraph (a)
or subparagraph (c) at least two business days prior to
entering into any such agreement;
(b) a person or group of persons unaffiliated with the Buyer
shall make an offer to purchase a number of shares of
Common Stock of the Company or other Voting Securities
which would entitle such person or persons to vote a
majority of the Voting Securities of the Company and a
majority of the members of the board of directors of the
Company does not oppose such offer or recommend against
acceptance thereof by the shareholders of the Company; or
(c) the Company shall enter into an agreement with any party
providing for an offer to be made to purchase at least a
majority of the shares of Common Stock of the Company and
a majority of the Board of Directors approves or
recommends acceptance of such tender offer.
9. RIGHT TO APPOINT DIRECTOR. If during the period set
forth in Section 6 Buyer acquires at any time or from
time to time equity securities (or securities convertible
into or exercisable or exchangeable for equity
securities) of the Company for an aggregate purchase
price of $100 million or more, then the Company shall use
its best efforts to cause a designee of Buyer to be
elected as a director of the Company and shall use its
best efforts to cause its officers and directors to enter
into an agreement promptly after the date hereof agreeing
to vote for Buyer's designee as a director.
10. LEGENDS AND STOP TRANSFER ORDER.
(a) Buyer agrees:
(i) to the placement of the following legends on each
certificate representing Voting Securities owned by
Buyer or any affiliate:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE
SUBJECT TO, AND MAY BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF ONLY UPON COMPLIANCE
WITH THE TERMS AND THE PROVISIONS OF A
CERTAIN AGREEMENT DATED MAY, __ 1997 BETWEEN
CHELSEA GCA REALTY, INC. AND SIMON DEBARTOLO
GROUP, L.P., A COPY OF WHICH AGREEMENT IS ON
FILE AND MAY BE EXAMINED AT THE OFFICE OF THE
SECRETARY OF CHELSEA GCA REALTY, INC.
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND MAY NOT BE TRANSFERRED OR SOLD
UNLESS (i) A REGISTRATION STATEMENT UNDER
SUCH ACT IS THEN IN EFFECT WITH RESPECT
THERETO, (ii) A WRITTEN OPINION FROM COUNSEL
FOR THE ISSUER, MESSRS. STROOCK & STROOCK &
LAVAN LLP, OR COUNSEL FOR THE HOLDER
REASONABLY ACCEPTABLE TO THE ISSUER HAS BEEN
OBTAINED TO THE EFFECT THAT NO SUCH
REGISTRATION IS REQUIRED OR (iii) A `NO
ACTION' LETTER OR ITS THEN EQUIVALENT HAS
BEEN ISSUED BY THE STAFF OF THE SECURITIES
AND EXCHANGE COMMISSION."
(ii) that the Company may give stop transfer orders to
its transfer agent with respect to the Shares.
(b) The transfer of any Voting Securities which are sold in
contravention of the provisions of this Agreement shall
not be registered on the books of the Company, and no
person to whom any such sale is made shall be recognized
as the holder of such Voting Securities or acquire any
voting, dividend or other rights in respect thereof.
11. SPECIFIC ENFORCEMENT. The parties hereto recognize and
agree that , in the event that any of the terms of
Sections 5, 6, 7 or 9 hereof were not performed in
accordance with their specific terms or were otherwise
breached, immediate irreparable injury would be caused,
for which there is no adequate remedy at law. It is
accordingly agreed that in the event of a failure by any
party to perform its obligations thereunder, any other
party shall be entitled to specific performance through
injunctive relief to prevent breaches of the terms of
such sections and to specifically enforce such sections
and the terms and provisions thereof in any action
instituted in any court of the United States or any state
thereof having subject matter jurisdiction, in addition
to any other remedy to which the party may be entitled,
at law or in equity.
12. MISCELLANEOUS.
12.1. Buyer, on the one hand, and the Company, on the other
hand, represent and warrant to each other that no
brokerage commission or finder's fees have been incurred
in connection with the sale of the Shares to the Buyer.
Buyer shall be responsible for, and shall hold the
Company harmless from and against, any fees or expenses
which Merrill Lynch, Pierce, Fenner & Smith Incorporated
may allege to be due and owing to it in connection with
this Agreement or the Venture Agreement or the
transactions contemplated by such agreements.
12.2. All fees and expenses incurred by any party in connection
with this Agreement will borne by such party.
12.3. This Agreement will be binding upon, inure to the benefit
of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that
without the consent of the other, neither Buyer nor the
Company shall assign its rights or delegate its
obligations hereunder to any other person.
12.4. This Agreement contains the entire understanding of the
parties and supersedes all prior agreements and
understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a
written instrument duly executed by both parties.
12.5. This Agreement may be executed simultaneously in
counterparts, each of which will be deemed to be an
original, but all of which together will constitute one
and the same instrument.
12.6. All notices hereunder shall be given as provided in the
Venture Agreement.
12.7. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the
State of Maryland.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
CHELSEA GCA REALTY, INC.
BY: /S/ DAVID C. BLOOM
ITS CHIEF EXECUTIVE OFFICER
SIMON DEBARTOLO GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
its General Partner
By: /S/ DAVID SIMON
ITS CHIEF EXECUTIVE OFFICER
EXHIBIT 10.2
Registration Rights Agreement
Registration Rights Agreement dated May 16, 1997 by and between
Chelsea GCA Realty, Inc., a Maryland corporation (the "Company"),
and Simon DeBartolo Group, L.P., a Delaware limited partnership
(the "Investor").
W I T N E S S E T H :
WHEREAS, the Company desires to grant to the Investor certain
registration rights with respect to Registrable Securities (as
hereinafter defined) owned by the Investor;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and for other good and valuable consideration
set forth herein, the parties hereto agree as follows:
1.CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the respective meanings set forth
below:
"Affiliate" means with respect to a person or entity, (i) any
person who directly or indirectly owns, controls or holds the
power to vote ten percent or more of the outstanding voting
securities of the person in question, (ii) any person directly or
indirectly controlling, controlled by or under common control
with the person in question or (iii) if the person in question is
a corporation, any executive officer, director or ten percent or
greater stockholder of such person.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of common stock, par value $.01 per
share, of the Company.
"Costs and Expenses" means all of the costs and expenses relating
to the Registration Statement involved, including, but not
limited to, internal expenses of the Company, blue-sky expenses,
printing expenses, Commission and other filing, registration and
listing fees and fees and disbursements of counsel and
independent public accountants for the Company; provided,
however, that Costs and Expenses shall not include (a)
underwriting discounts and commissions and reimbursable
underwriters' expenses, all of which shall be borne pro rata by
the Selling Investors and (b) fees and expenses of counsel for
the Selling Investors.
"Holders" means any person or entity who owns Registrable
Securities or has the right to acquire Registrable Securities,
whether or not such acquisition has actually been effected.
"Registrable Securities" means (a) any shares of Common Stock
issued to the Investor, (b) any shares of Common Stock issuable
to the Investor upon exchange of Units and (c) any securities
issued as a dividend on or other distribution with respect to, or
in exchange for or in replacement of, the shares of Common Stock
referred to in subsections (a) or (b) above; provided, however,
that a security is not a Registrable Security after (i) it has
been effectively registered and disposed of under the Securities
Act, (ii) it has been publicly sold pursuant to Rule 144 (or any
similar provisions then in force) under the Securities Act, or
(iii) it is capable of being disposed of without volume
restrictions pursuant to Rule 144(k) (or any similar provisions
then in force) under the Securities Act.
"Registration Statement" means any registration statement of the
Company relating to Registrable Securities which is filed
pursuant to this Agreement, including any prospectus included
therein and all amendments and supplements thereto.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal law then in force.
"Selling Investors" means Holders whose Registrable Securities
are included in a Registration Statement filed by the Company
pursuant to this Agreement.
"Units" means units of partnership interests in Chelsea GCA
Realty Partnership, L.P.
2.REGISTRATION RIGHTS.
2.1REQUIRED REGISTRATION. (a) At any time and from time to time
after the date hereof the Investor may give written notice to the
Company of the proposed disposition of Registrable Securities,
specifying the number of Registrable Securities so to be sold or
disposed of and requesting that the Company prepare and file a
Registration Statement under the Securities Act covering such
Registrable Securities. The Company shall, within 10 days
thereafter, give written notice to the other Holders of such
request and each of the other Holders shall have the option, for
a period of 20 days after receipt by it of such notice from the
Company, to include some or all of its Registrable Securities in
such Registration Statement. Upon the written request from
Holders of Registrable Securities stating that they wish to
dispose of an aggregate of at least the lesser of (i) 15% of such
Holder's Registrable Securities or (ii) $10 million of
Registrable Securities (based on their then market value) (the
"Minimum"), the Company shall use its best efforts to cause an
appropriate Registration Statement covering such Registrable
Securities to be filed with the Commission and to become
effective as soon as reasonably practicable and to remain
effective until the earlier to occur of (i) completion of the
distribution of the Registrable Securities to be offered or sold
or (ii) 120 days, which period shall be extended for any period
of time during which a current prospectus is not available. The
Company shall not be obligated to file more than one Registration
Statement for the Investor (including Affiliates of the Investor)
during any twelve month period of time pursuant to the provisions
of this Section 2.1 (but not Section 2.3); provided, however,
that the Investor shall have the right on one occasion to request
registration without the Minimum (but such request shall be
included for purposes of the Investor's right to one request
during each twelve month period of time). The Company's
obligations under this Section 2.1 shall be deemed satisfied (i)
when a Registration Statement shall have become effective or (ii)
upon the withdrawal by the Investor of the request for such
Registration Statement after such Registration Statement has been
filed with the Commission. The Company shall bear the Costs and
Expenses of each such Registration Statement. Notwithstanding
anything to the contrary contained herein, no request may be made
under this Section 2.1 within 180 days after the effective date
of a registration statement filed by the Company in which Holders
of Registrable Securities shall have been entitled to join
pursuant to this Section 2.1 or Section 2.3.
(b)The Company may include in the Registration Statement under
Section 2.1(a) any other shares of its Common Stock (including
issued and outstanding shares of Common Stock as to which the
holders thereof have contracted with the Company for "piggyback"
registration rights) so long as the inclusion in such
Registration Statement of such shares will not, in the opinion of
the managing underwriter, if any, interfere with the successful
marketing in accordance with the intended method of sale or other
disposition of all the Registrable Securities sought to be
registered pursuant to Section 2.1(a). If it is determined as
provided above that there will be such interference, the other
shares of Common Stock sought to be included shall be excluded on
a pro rata basis to the extent deemed appropriate by the managing
underwriter before any Registrable Securities are excluded from
such registration.
(c)Notwithstanding the foregoing, if the Company shall furnish to
the Holder of Registrable Securities requesting a Registration
Statement pursuant to Section 2.1(a), a certificate signed by the
Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would
be seriously detrimental to the Company and its shareholders for
such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the
Company shall have the right to defer such filing for a period of
not more than 120 days after receipt of the request for
registration.
(d)If the Holder requesting registration desires to sell
Registrable Securities in an underwritten offering, the
underwriter will be selected by such Holder, subject to the
reasonable approval of the Company.
2.2.PROCEDURE FOR REGISTRATION. In connection with the filing of
a Registration Statement pursuant to Section 2.1 hereof, and in
supplementation and not in limitation of the provisions hereof,
the Company shall:
(a)Notify the Selling Investors as to the filing of the
Registration Statement and of all amendments or supplements
thereto filed prior to the effective date of such Registration
Statement;
(b)Notify the Selling Investors, promptly after the Company shall
receive notice thereof, of the time when such Registration
Statement became effective or when any amendment or supplement to
any prospectus forming a part of such Registration Statement has
been filed;
(c)Notify the Selling Investors promptly of any request by the
Commission for the amending or supplementing of such Registration
Statement or prospectus or for additional information;
(d)Prepare and promptly file with the Commission and promptly
notify the Selling Investors of the filing of any amendments or
supplements to such Registration Statement or prospectus as may
be necessary to correct any statements or omissions if, at any
time when a prospectus relating to the Registrable Securities is
required to be delivered under the Securities Act, any event with
respect to the Company shall have occurred as a result of which
any such prospectus or any other prospectus as then in effect
would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein
not misleading; and, in addition, prepare and file with the
Commission, promptly upon the Selling Investors' written request,
any amendments or supplements to such Registration Statement or
prospectus which may be reasonably necessary or advisable in
connection with the distribution of the Registrable Securities;
(e)Prepare, promptly upon request of the Selling Investors or any
underwriters for the Selling Investors, such amendment or
amendments to such Registration Statement and such prospectus or
prospectuses as may be reasonably necessary to permit compliance
with the requirements of Section 10(a)(3) of the Securities Act;
(f)Advise the Selling Investors promptly after the Company shall
receive notice or obtain knowledge of the issuance of any stop
order by the Commission suspending the effectiveness of any such
Registration Statement or amendment thereto or of the initiation
or threatening of any proceeding for that purpose, and promptly
use its best efforts to prevent the issuance of any stop order or
obtain its withdrawal promptly if such stop order should be
issued;
(g)Use its best efforts to qualify, as soon as reasonably
practicable, the Registrable Securities for sale under the
securities or blue-sky laws of such states and jurisdictions
within the United States as shall be reasonably requested by the
Selling Investors; provided, that the Company shall not be
required in connection therewith or as a condition thereto to
qualify to do business, to become subject to taxation or to file
a consent to service of process generally in any of the aforesaid
states or jurisdictions;
(h)Furnish the Selling Investors, as soon as available, copies of
any Registration Statement and each preliminary or final
prospectus, or supplement or amendment required to be prepared
pursuant hereto, and all other documents referred to in Section
2.2, all in such quantities as the Selling Investors may, from
time to time, reasonably request; and
(i)If requested by the Selling Investors, enter into an agreement
with the underwriters of the Registrable Securities being
registered containing customary provisions and reflecting the
foregoing.
2.3INCIDENTAL REGISTRATION. If at any time and from time to time
the Company shall propose the filing of a Registration Statement
on an appropriate form under the Securities Act of any equity
securities of the Company, otherwise than pursuant to Section 2.1
hereof and other than a registration statement on Forms S-8 or S-
4 or any equivalent form then in effect, then the Company shall
give the Holders of Registrable Securities notice of such
proposed registration and shall include in any Registration
Statement relating to such securities all or a portion of the
Registrable Securities then owned by such Holders, which such
Holders shall request (such Holders to be considered Selling
Investors), by notice given by such Holders to the Company within
20 days after the giving of such notice by the Company, to be so
included. In the event of the inclusion of Registrable
Securities pursuant to this Section 2.3, the Company shall bear
the Costs and Expenses of such registration. In the event the
distribution of securities of the Company covered by a
Registration Statement referred to in this Section 2.3 is to be
underwritten, then the Company's obligation to include
Registrable Securities in such Registration Statement shall be
subject, at the option of the Company, to the following further
conditions:
(a)The distribution for the account of the Selling Investors
shall be underwritten by the same underwriters who are
underwriting the distribution of the securities for the account
of the Company and/or any other persons whose securities are
covered by such Registration Statement, and the Selling Investors
will enter into an agreement with such underwriters containing
customary provisions;
(b)If the underwriting agreement entered into with the aforesaid
underwriters contains restrictions upon the sale of securities of
the Company, other than the securities which are to be included
in the proposed distribution, during the period commencing 10
days prior to, and not exceeding 180 days from, the effective
date of the Registration Statement, then such restrictions will
be binding upon the Selling Investors and, if requested by the
Company, the Selling Investors will enter into a written
agreement to that effect;
(c)If the registration is an underwritten primary registration on
behalf of the Company and the managing underwriters of such
offering deliver a written opinion to the Holders of such
Registrable Securities that the aggregate amount of securities of
the Company which the Holders of Registrable Securities and the
Company propose to include in such Registration Statement would
materially and adversely affect the marketing of the securities
or the proceeds of the offering payable to the Company, the
Company will include in such registration, first the securities
which the Company proposes to sell, second, on a pro rata basis
Registrable Securities of the Holders and of the persons or
entities entitled to registration pursuant to the Registration
Rights Agreement dated November 2, 1993, and third, securities
held by any holders of other piggyback registration rights, if
any, which can be included therein without, in the good faith
judgment of the managing underwriters of such offering,
materially and adversely affecting the marketing of the
securities or the proceeds of the offering payable to the
Company, pro rata among the Holders of Registrable Securities
taken together, and next, if available, pro rata among other
holders of securities, taken together, in each case on the basis
of the relative number of securities of the Company requested to
be included in such registration by the Holders of Registrable
Securities and such other holders; and
(d)If the registration is in connection with an underwritten
secondary offering on behalf of any of the other security holders
of the Company and the managing underwriters of such offering
deliver a written opinion to the Holders of such Registrable
Securities that the aggregate amount of securities which the
Holders of Registrable Securities and such security holders
propose to include in such registration would materially and
adversely affect the marketing of the securities or the proceeds
of the offering payable to such other security holders of the
Company, the Company will include in such registration, first,
the securities to be sold for the account of any other holders
entitled to demand registration, second, the Registrable
Securities of the Holders and of the persons or entities entitled
to registration pursuant to the Registration Rights Agreement
dated November 2, 1993, and third, securities held by any holders
of other piggyback registration rights, if any, which can be
included in such offering without, in the good faith judgment of
the managing underwriters of such offering, materially and
adversely affecting the marketing of the securities or the
proceeds of the offering payable to such other security holders,
pro rata among all Holders of Registrable Securities taken
together and next, if available, pro rata among other holders of
securities, taken together, in each case on the basis of the
relative number of securities of the Company requested to be
included in such registration by the Holders of Registrable
Securities and such other holders. Registrable Securities
proposed to be registered and sold pursuant to an underwritten
offering for the account of the Holders of Registrable Securities
shall be sold to prospective underwriters selected or approved by
the Company and on the terms and subject to the conditions of one
or more underwriting agreements negotiated between the Company,
the Holders of Registrable Securities and any other holders
demanding registration and the prospective underwriters. The
Company may withdraw any Registration Statement initiated by the
Company pursuant to this Section 2.3 at any time before it
becomes effective, or postpone the offering of securities,
without obligation or liability to the Holders of Registrable
Securities.
2.4INDEMNIFICATION BY THE COMPANY. The Company will indemnify
and hold harmless each Selling Investor, any underwriter (as
defined in the Securities Act) for such Selling Investor, each
officer, director and partner of such Selling Investor, and each
person, if any, who controls such Selling Investor or such
underwriter within the meaning of the Securities Act (but, in the
case of an underwriter or a controlling person, only if such
underwriter or controlling person indemnifies the persons
mentioned in subdivision (b) of Section 2.5 hereof in the manner
set forth therein), against any losses, claims, damages or
liabilities, joint or several, to which such Selling Investor or
any such underwriter, officer, director, or controlling person
becomes subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) are caused by any untrue statement or alleged
untrue statement of any material fact contained in any
preliminary prospectus (if used prior to the effective date of
the Registration Statement), or contained, on the effective date
thereof, in any Registration Statement under which Registrable
Securities were registered under the Securities Act, the
prospectus contained therein, or any amendment or supplement
thereto, or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and the Company will reimburse such Selling Investor
and any such underwriter, officer, director, partner or
controlling person for any legal or other expenses reasonably
incurred by such Selling Investor, or any such underwriter,
officer, director, partner or controlling person in connection
with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not
be liable to any such persons in any such case to the extent that
any such loss, claim, damage, liability or action arises out of
or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in
conformity with information furnished to the Company in writing
by such person expressly for inclusion in any of the foregoing
documents.
2.5INDEMNIFICATION BY SELLING INVESTORS. Each Selling Investor
shall:
(a)Furnish in writing all information to the Company concerning
itself and its holdings of securities of the Company as shall be
required in connection with the preparation and filing of any
Registration Statement covering any Registrable Securities; and
(b)Indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed a Registration
Statement, each person, if any, who controls the Company within
the meaning of the Securities Act, each other Selling Investor
and any underwriter (as defined in the Securities Act) for the
Company, against any losses, claims, damages or liabilities to
which the Company or any such director, officer, controlling
person or underwriter may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) are caused by any
untrue or alleged untrue statement of any material fact contained
in any preliminary prospectus (if used prior to the effective
date of the Registration Statement) or contained on the effective
date thereof, in any Registration Statement under which
Registrable Securities were registered under the Securities Act,
the prospectus contained therein, or any amendment or supplement
thereto, or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading; in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with information furnished in writing to the Company
by such Selling Investor expressly for inclusion in any of the
foregoing documents, and such Selling Investor shall reimburse
the Company and any such underwriter, officer, director or
controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action.
2.6CONTRIBUTION. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any
case in which either (a) any Selling Investor or other person or
entity entitled to indemnification under this Agreement, makes a
claim for indemnification pursuant to Section 2.4 but it is
judicially determined (by the entry of a final judgment or decree
by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding
the fact that Section 2.4 provides for indemnification in such
case, or (b) contribution under the Securities Act may be
required on the part of any such Selling Investor or other person
in circumstances for which indemnification is provided under
Section 2.4; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (after contribution
from others) in such proportion so that such Selling Investor or
other person is responsible for the portion represented by the
percentage that the public offering price of its Registrable
Securities offered by the Registration Statement bears to the
public offering price of all securities offered in such
Registration Statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (i)
no such Selling Investor or other person will be required to
contribute any amount in excess of the public offering price of
all such Registrable Securities offered by it pursuant to such
Registration Statement; and (ii) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 12(f)
of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent
misrepresentation.
2.7NOTIFICATION BY SELLING INVESTORS. Each Selling Investor and
each other person indemnified pursuant to Section 2.4 hereof
will, in the event it receives notice of the commencement of any
action against it which is based upon an alleged act or omission
which, if proven, would result in the Company's having to
indemnify it pursuant to Section 2.4 hereof, promptly notify the
Company, in writing, of the commencement of such action and
permit the Company, if the Company so notifies such Selling
Investor within 10 days after receipt by the Company of notice of
the commencement of the action, to participate in and to assume
the defense of such action with counsel reasonably satisfactory
to such Selling Investor or such other indemnified person, as the
case may be; provided, however, that such Selling Investor shall
be entitled to retain its own counsel at the Company's expense if
it believes it has defenses available to it which are not
available to the Company or if such Selling Investor believes
there exists a potential for conflict of interest between the
Company and such Selling Investor. The omission to notify the
Company promptly of the commencement of any such action shall not
relieve the Company of any liability to indemnify such Selling
Investor or such other indemnified person, as the case may be,
under Section 2.4 hereof, except to the extent the Company shall
suffer any loss by reason of such failure to give notice and
shall not relieve the Company of any other liabilities which it
may have under this or any other agreement.
2.8NOTIFICATION BY COMPANY. The Company agrees that, in the
event it receives notice of the commencement of any action
against it which is based upon an alleged act or omission which,
if proven, would result in any Selling Investor having to
indemnify the Company pursuant to subdivision (b) of Section 2.5
hereof, the Company will promptly notify such Selling Investor in
writing of the commencement of such action and permit such
Selling Investor, if such Selling Investor so notifies the
Company within 10 days after receipt by it of notice of the
commencement of the action, to participate in and to assume the
defense of such action with counsel reasonably satisfactory to
the Company. The omission to notify such Selling Investor
promptly of the commencement of any such action will not relieve
such Selling Investor of liability to indemnify the Company under
subdivision (b) of Section 2.5 hereof, except to the extent that
such Selling Investor suffers any loss by reason of such failure
to give notice and shall not relieve such Selling Investor of any
other liabilities which it may have under this or any other
agreement.
3.MISCELLANEOUS.
3.1NOTICES. All notices, requests, demands and other
communications provided for by this Agreement shall be in writing
(including telecopier or similar writing) and shall be deemed to
have been given at the time when hand delivered, mailed in any
general or branch office of the United States Postal Service,
enclosed in a registered or certified postpaid envelope, or
received from Federal Express or other similar overnight courier
service, addressed to the address of the parties stated below or
to such changed address as such party may have fixed by notice
or, if given by telecopier, when such telecopy is transmitted and
the appropriate answerback is received.
If to the Company:Chelsea GCA Realty, Inc.
103 Eisenhower Parkway
Roseland, NJ 07068
Attention: Chief Executive
Officer
- - copy to -
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
Attention: Martin H. Neidell
If to the Investor:Simon DeBartolo Group L.P.
115 West Washington Street
Indianapolis, Indiana 46204
Attention:
3.2SUCCESSORS AND ASSIGNS. This Agreement is solely for the
benefit of the parties and their respective successors and
assigns. Nothing herein shall be construed to provide any rights
to any other entity or individual.
3.3COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
3.4HEADINGS. Section headings are for convenience only and do
not control or affect the meaning or interpretation of any terms
or provisions of this Agreement.
3.5GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
governing contracts to be made and performed therein without
giving effect to principles of conflicts of law, and, with
respect to any dispute arising out of this Agreement, each party
hereby consents to the exclusive jurisdiction of the courts
sitting in such State.
3.6SEVERABILITY. Should any part, term, condition or provision
hereof or the application thereof be declared illegal, invalid or
otherwise unenforceable or in conflict with any other law by a
court of competent jurisdiction, the validity of the remaining
parts, terms, conditions or provisions of this Agreement shall
not be affected thereby, and the illegal, invalid or
unenforceable portions of this Agreement shall be and hereby are
redrafted to conform with applicable law, while leaving the
remaining portions of this Agreement intact, except to the extent
necessary to conform to the redrafted portions hereof.
3.7ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the parties and supersedes
all proposals, commitments, writings, negotiations, discussions,
agreements and understandings, oral or written, of every kind and
nature between them concerning the subject matter hereof. This
Agreement may not be amended or otherwise modified and no
provision hereof may be waived, without the consent of the
Holders of a majority of the Registrable Securities. No
discharge of the terms hereof shall be deemed valid unless by
full performance by the parties or by a writing signed by the
parties. A waiver by any party of any breach or violation of any
provision of this Agreement shall not be deemed or construed as a
waiver of any other breach or violation hereof.
3.8OTHER REGISTRATION RIGHTS. From and after the date hereof and
so long as any of the registration rights under this Agreement
remain in effect, the Company shall not grant to any third party
any registration rights more favorable than those contained
herein.
3.9ARBITRATION. Mindful of the high cost of litigation, not only
in dollars but time and energy as well, the parties intend to and
do hereby establish a quick, final and binding out-of-court
dispute resolution procedure to be followed in the unlikely event
any controversy should arise out of or concerning the performance
of this Agreement. Accordingly, the parties do hereby covenant
and agree that any controversy, dispute or claim of whatever
nature arising out of, in connection with or in relation to the
interpretation, performance or breach of this Agreement,
including any claim based on contract, tort or statute, shall be
settled, at the request of any party to this Agreement, through
arbitration by a dispute resolution process administered by
Judicial Arbitration & Mediation Services, Inc. or any other
mutually agreed upon arbitration firm involving final and binding
arbitration conducted at a location determined by the arbitrator
in New York City administered by and in accordance with the then
existing rules of practice and procedure of such arbitration firm
and judgment upon any award rendered by the arbitrator may be
entered by any state or federal court having jurisdiction
thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
CHELSEA GCA REALTY, INC.
By: /S/ DAVID C. BLOOM
Name: DAVID C. BLOOM
Title: CHIEF EXECUTIVE OFFICER
SIMON DeBARTOLO GROUP, L.P.
By: Simon DeBartolo Group, Inc.,
General Partner
By: /S/ DAVID SIMON
Name: DAVID SIMON
Title: CHIEF EXECUTIVE OFFICER
Exhibit 99
EXECUTIVE OFFICERS AND DIRECTORS
OF SIMON DEBARTOLO GROUP, INC.,
A GENERAL PARTNER OF
SIMON DEBARTOLO GROUP, L.P.
Each person listed below is a United States citizen with a business address
of 115 Washington Street, Indianapolis, Indiana 46204. The table provides
each person's position with the Company, with additional occupation
information provided parenthetically.
<TABLE>
<CAPTION>
NAME PRESENT PRINCIPAL OCCUPATION
<S> <C>
Melvin Simon Co-Chairman of the Board
Herbert Simon Co-Chairman of the Board
David Simon Chief Executive Officer and Director
Richard S. Sokolov President, Chief Operating Officer, and Director
Randolph L. Foxworthy Executive Vice President - Corporate Development
William J. Garvey Executive Vice President - Property Development
James A. Napoli Executive Vice President - Leasing
John R. Neutzling Executive Vice President - Property Management
James M. Barkley General Counsel and Secretary
Stephen E. Sterret Treasurer
Birch Bayh Director (Senior Partner, Bayh, Connaughton, & Malone,
P.C.)
Edward J. DeBartolo, Jr. Director (President and Chief Executive Officer of
Edward J. DeBartolo Corporation ("EJDC"))
M. Denise DeBartolo York Director (Chairman of the Board of EJDC and DeBartolo,
Inc.)
William T. Dillard, II Director (President and Chief Operating Officer of
Dillard Department Stores, Inc.)
G. William Miller Director (Chairman of the Board and Chief Executive
Officer of G. William Miller & Co., Inc.)
Terry S. Prindiville Director
Fredrick W. Petri Director (Partner, Petrone, Petri & Company)
J. Albert Smith, Jr. Director (President, Bank One, Indianapolis, NA)
Philip J. Ward Director (Senior Managing Director, Head of Real Estate
Investments, CIGNA Investments, Inc.)
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