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EXHIBIT 10.54
ISSUANCE AGREEMENT dated as of
, 1998, between CORPORATE
PROPERTY INVESTORS, INC., a Delaware corporation
("C1"), and CORPORATE REALTY CONSULTANTS, INC.,
a Delaware corporation ("C2").
The parties hereto hereby agree as follows:
SECTION 1. Definitions. As used herein, the
following terms shall have the following meanings:
"C1 Common Equivalent" with respect to a share of a series of
C1 Special Preferred Stock at any date shall mean the number of shares of C1
Common Stock that would be issued to the holder of such share of C1 Special
Preferred Stock if all outstanding shares of such series were converted into C1
Common Stock on such date in accordance with their terms; provided, however,
that if such series shall not then be convertible, the "C1 Common Equivalent" of
such a share of C1 Special Preferred Stock shall be determined by the Board of
Directors of C1 in good faith so as to achieve, insofar as is possible, the
intents and purposes of this Agreement.
"C1 Common Stock" shall mean the Common Stock, par value $___
per share, of C1.
"C1 Special Preferred Stock" shall mean (i) the 6.5% Series A
Preferred Stock of C1 and (ii) any series of preferred stock, par value $___ per
share, of C1 convertible into C1 Common Stock, the terms of which expressly
provide that such stock shall be "Special Preferred Stock" of C1 for purposes of
this Agreement.
"C2 Common Stock" shall mean the Common Stock, par value $___
per share, of C2.
"C1 Proportionate Interest" shall mean (i) with respect to the
C1 Common Stock at any date, a fraction, the numerator of which shall be the
number of shares of C1 Common Stock outstanding at such date and the denominator
of which shall be the sum of such number of shares of C1 Common Stock and the
aggregate C1 Common Equivalents of all outstanding shares of C1 Special
Preferred Stock at such date, and (ii) with respect to any series of C1 Special
Preferred Stock, a fraction, the numerator of which shall be the C1 Common
Equivalent of the outstanding shares of such series at such date and the
denominator of which shall be the sum of the number of shares of C1 Common Stock
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outstanding at such date and the aggregate C1 Common Equivalents of all
outstanding shares of C1 Special Preferred Stock at that date.
"C2 Common Trust" shall mean the trust for the ratable benefit
of all or substantially all the holders of C1 Common Stock established pursuant
to that certain Trust Agreement dated as of October 30, 1979, among the
shareholders of Corporate Property Investors, a Massachusetts business trust,
whose executions appear at the foot thereof, C2 and Bank of Montreal Trust
Company, as successor trustee thereunder.
"C2 Permitted Preferred Stock" shall mean a series of
preferred stock of C2, (i) the dividends on which shall not be determined by
reference to the dividends on C2 Common Stock or to the financial performance of
C2 or any of its affiliates or any particular line of business of any of them
(other than to provide that such dividends shall be payable to the extent the
Board of Directors of C2 determines that sufficient surplus shall be available
to pay them), (ii) that does not carry any voting rights (other than the right
to vote on amendments to the terms thereof or the Certificate of Incorporation
of C2, if such amendments shall be materially prejudicial to the holders of such
series of preferred stock) and (iii) that is not convertible into C2 Common
Stock.
"C2 Preferred Trust" shall mean a trust for the ratable
benefit of all the holders of a single series of C1 Special Preferred Stock
under which C2 Common Shares are held by a corporate trustee on terms
substantially the same as those of the trust established pursuant to the Trust
Agreement dated as of August 26, 1994, among the holders of the 6.50% First
Series Preference Shares of Corporate Property Investors, a Massachusetts
business trust, whose executions appear at the foot thereof, C2 and Bank of
Montreal Trust Company, as trustee thereunder.
"C2 Trust" shall mean each of the C2 Common Trust and the C2
Preferred Trusts.
"C2 Proportionate Interest" for any C2 Trust at any date shall
mean a fraction, the numerator of which shall be the number of shares of C2
Common Stock held in such C2 Trust at such date and the denominator of which
shall be the number of shares of C2 Common Stock outstanding at such date.
Two numbers shall be "equal" if such numbers, when rounded to
the nearest 1/10,000th, are the same.
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A series of capital stock of C1 shall be "related" to a C2
Trust, and vice versa, if the C2 Common Stock held in such trust is
held for the ratable benefit of the holders of all or substantially all
the outstanding shares of such series of capital stock of C1.
SECTION 2. Establishment of C2 Trusts. C1 shall not issue any
shares of any series of C1 Special Preferred Stock unless either a C2 Trust
related to such series shall then exist or C1 shall contemporaneously cause such
a C2 Trust to be established and give C2 notice of such establishment, along
with the details thereof.
SECTION 3. Issuance of C2 Shares. (a) Whenever C1 shall issue
shares of C1 Common Stock or C1 Special Preferred Stock, C2 shall issue to the
C2 Trusts numbers of shares of C2 Common Stock such that, immediately after such
issuance of C2 Common Stock (giving effect to any transfers of shares of C2
Common Stock among the C2 Trusts pursuant to the terms of such trusts occurring
by reason of the issuance of such shares of stock by C1) the C2 Proportionate
Interest of each C2 Trust shall equal the C1 Proportionate Interest of the
series of capital stock of C1 related to such C2 Trust. The issuance of shares
of C1 Common Stock or C1 Special Preferred Stock in connection with a merger,
consolidation or similar transaction in which C1 shall be the survivor shall be
deemed to occur when the holders of the securities to be exchanged for such
shares surrender the Certificates evidencing such securities to C1 or an
exchange agent for exchange.
(b) C2 shall from time to time issue to the C2 Trusts, pro
rata in accordance with the number of shares of C2 Common Stock then held by
each such trust, a minimally sufficient number of shares of C2 Common Stock so
that the aggregate C2 Proportionate Interests of the C2 Trusts shall at all
times exceed 0.9999.
SECTION 4. Payment for C2 Shares Issued. Whenever C2 shall
issue shares of C2 Common Stock pursuant to Section 3, C1 shall simultaneously
pay to C2 an amount equal to the greater of (x) the aggregate par value of the
shares of C2 Common Stock issued and (y) the amount determined in good faith by
the Board of Directors of C2 to represent the fair market net asset value of the
shares of C2 Common Stock issued (less, in the case of this clause (y), the
aggregate consideration paid to C2 by parties other than C1 in connection with
such issuance of C2 Common Stock).
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SECTION 5. Limitation on Issuance; Reservation of Shares. (a)
C2 shall not (i) issue, or propose or contract to issue, any shares of any
series of capital stock other than C2 Common Stock and C2 Permitted Preferred
Stock, or (ii) increase the par value of the C2 Common Stock.
(b) All authorized shares of C2 Common Stock that are not
outstanding from time to time shall be reserved for issuance pursuant to the
terms of this Agreement.
SECTION 6. Third Party Beneficiaries. The only intended third
party beneficiaries hereof shall be the holders from time to time of the
outstanding shares of C1 Common Stock and C1 Special Preferred Stock; provided,
however, that this Agreement may be amended as set forth herein, and all such
third party beneficiaries shall be bound by the terms of any such amendment.
SECTION 7. Amendment. This Agreement and the rights of the
parties hereunder may not be waived, modified or otherwise amended other than by
a written amendment signed by the parties and either approved in writing by the
trustees of each C2 Trust then existing or approved by the affirmative vote of
the holders of 66.67% of the shares of C1 Common Stock then outstanding and the
affirmative vote of the holders of 66.67% of the shares of each series of C1
Special Preferred Stock then outstanding, each such series voting as a separate
class, at a stockholders' meeting duly called for the purpose thereof or by a
written consent in lieu thereof executed in accordance with Section 228 of the
General Corporation Law of the State of Delaware.
SECTION 8. Assignment. Neither this Agreement nor any rights
hereunder shall be assigned by any party hereto, whether voluntarily or
involuntarily, by operation of law or otherwise; provided, however, that a party
may assign this Agreement if it shall merge or consolidate with another entity
with such other entity being the surviving entity, so long as such entity
assumes in writing, by an instrument delivered to the other party and the
trustees of any C2 Trusts then in existence, all the assigning party's
obligations hereunder, and in such an event all references herein to such party,
its capital stock and its Board of Directors shall thereafter be deemed
references to such person, its capital stock and its Board of Directors, as
applicable.
SECTION 9. Termination. This Agreement shall remain in full
force and effect until there shall be no C2 Trusts in existence, whereupon it
shall immediately terminate.
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SECTION 10. Notices. (a) C2 shall give C1 prompt notice of any
issuance of C2 Common Stock and of the dissolution of any C2 Trust. C1 shall
give C2 prompt notice of any issuance of C1 Common Stock or C1 Special Preferred
Stock and of the entry by C1 into any agreement obligating C1 to make any such
issuance in the future.
(b) All notices hereunder shall be in writing; shall be hand
delivered, or mailed, postage prepaid, or sent by recognized overnight courier
to the address specified below (as the same may be changed by a party on notice
to the other party):
If to C1:
Corporate Property Investors, Inc.
305 East 47th Street
New York, New York 10017
Attn: Corporate Secretary; and
If to C2:
Corporate Realty Consultants, Inc.
305 East 47 Street
New York, New York 10017
Attn: Corporate Secretary;
and shall be deemed delivered when received.
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SECTION 11. Governing Law. This Agreement shall be construed
in accordance with, and governed by, the laws of the State of New York, without
regard to conflicts of laws principles.
IN WITNESS WHEREOF the undersigned have executed this Issuance
Agreement as of the date first written above.
CORPORATE PROPERTY INVESTORS,
INC.,
by
_______________________
Name:
Title:
CORPORATE REALTY CONSULTANTS,
INC.,
by
_______________________
Name:
Title: