EXHIBIT 10.46

    


    EXECUTION
COPY

    


    AMENDMENT NO. 2 TO THE
CONTRIBUTION AGREEMENT

     

    THIS AMENDMENT NO. 2 TO THE
CONTRIBUTION AGREEMENT, made this 28th day of June, 2010 (this “Amendment”), is made
by and among Simon Property Group, Inc., a Delaware corporation (“Parent REIT”), Simon
Property Group, L.P., a Delaware limited partnership (“Parent OP”), Marco
Capital Acquisition, LLC, a Delaware limited liability company and a wholly
owned subsidiary of Parent OP (“Parent Sub,” and
together with Parent REIT and Parent OP, the “Parent Parties”),
Lightstone Prime, LLC, a Delaware limited liability company (“Lightstone Prime”)
(solely in its capacity as the Representative), and Prime Outlets Acquisition
Company LLC, a Delaware limited liability company (the “Company”).  Except
as expressly set forth in this Amendment, all capitalized terms used herein
shall have the meanings ascribed to them in the Contribution
Agreement.

     

    WITNESSETH:

     

    WHEREAS, the parties hereto
and certain of their affiliates have entered into that certain Contribution
Agreement, dated as of December 8, 2009, and the parties hereto have entered
into Amendment No. 1 thereto dated as of May 13, 2010 (such Contribution
Agreement, including Amendment No. 1 thereto, as further amended from time to
time, the “Contribution
Agreement”);

     

    WHEREAS, the parties to the
Contribution Agreement wish that, following consummation of the transactions
contemplated by the Contribution Agreement, (i) LVP OP shall continue to own the
St. Augustine Land and all of the outstanding membership interests of St.
Augustine, (ii) Lightstone Prime, LVP OP and Pro-DFJV shall own all of the
ownership interests of Livermore Valley Holdings LLC, a Delaware limited
liability company, (iii) Lightstone Prime, LVP OP and Pro-DFJV shall own all of
the ownership interests of Prime Development Management Services Inc., a
Maryland corporation, and (iv) Lightstone Prime, LVP OP and Pro-DFJV shall own
all of the ownership interests of Grand Prairie Holdings LLC, a Delaware limited
liability company;

     

    WHEREAS, in accordance with
Section 9.3 of
the Contribution Agreement, which provides that, among other things, the
Contribution Agreement may be amended or modified by a written agreement
executed and delivered by duly authorized officers of Parent REIT, Parent OP,
Parent Sub, the Company and the Representative, the parties hereto desire to
enter into this Amendment to amend the Contribution Agreement; and

     

    WHEREAS, pursuant to Section 11.1 of the
Contribution Agreement, the Representative is authorized to execute this
Amendment on behalf of the Contributors, which Amendment will thereupon be
binding upon the Contributors.

     

    NOW, THEREFORE, in
consideration of the mutual promises and covenants contained herein, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    1.           Definitions.

     

    (a)         The
following definitions in Section 1.1 of the
Contribution Agreement are hereby amended and restated in their entirety to read
as set forth below:

     

    “Aggregate Consideration
Value” means (i) the Enterprise Value, increased by
(ii) the Net Working Capital Adjustment (if a positive number), decreased by (iii)
the absolute value of the Net Working Capital Adjustment (if a negative number),
decreased by
(iv) the amount of Closing Date Funded Indebtedness, decreased by
(v) the Company Transaction Expenses, decreased by (vi) the
Minority Cash Amount  For the avoidance of doubt, no item (or element
thereof) shall be included more than once in any of the foregoing clauses in the
calculation of the Aggregate Consideration Value.  For illustrative
purposes, attached as Schedule 1.1(A) is a
hypothetical calculation of the Aggregate Consideration Value.

     

    “Contemplated
Transactions” means the Contributions and the other transactions
contemplated by this Agreement and the other Transaction Documents (but not
including any of the Entity Distributions).

     

    “Enterprise Value”
means two billion, one hundred forty eight
million dollars ($2,148,000,000) (equal to (i) two billion, one hundred eighty
seven million dollars ($2,187,000,000) (the Enterprise Value in Amendment No. 1
to the Contribution Agreement) minus (ii) thirty
nine million dollars ($39,000,000) (the agreed upon aggregate reduction to the
Enterprise Value as a result of the entrance into the transactions contemplated
by Amendment No. 2)).

     

    “Estimated Aggregate
Consideration Value” means a good faith estimate of the Aggregate
Consideration Value prepared by the Company.  In connection with
determining the Estimated Aggregate Consideration Value, the Company (a) shall
use the actual Enterprise Value and the actual Minority Cash Amount and (b)
shall estimate the amount of (i) the Net Working Capital Adjustment, (ii)
Closing Date Funded Indebtedness, and (iii) Company Transaction
Expenses.

     

    “Group Companies”
means, collectively, the Company, Ewell, Mill Run and each of their respective
Subsidiaries (but excluding Livermore, Prime Development, Grand Prairie and each
of their respective Subsidiaries).

     

    “Other Group
Companies” means Ewell and Mill Run.

     

    “St. Augustine Land”
means the parcel of unimproved land described on Annex C (with all
structures, improvements and fixtures located thereon and all rights of way,
other rights, privileges, licenses, easements and appurtenances belonging or
appertaining thereto).

     

    “Transaction
Documents” means this Agreement, Amendment No. 1, Amendment No. 2, the
New Company Agreement, the LP Purchase Agreement, the Tax Matters Agreements,
the Escrow Agreement and the Mill Run Letter Agreement.


    
      
         


      

      
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    “Working Capital Escrow
Amount” means four million, six hundred nineteen thousand, three hundred
fifty five dollars ($4,619,355) (equal to the product of (i) $4,703,226 and (ii)
a fraction, the numerator of which is the Enterprise Value, as set forth in
Amendment No. 2, and the denominator of which is $2,187,000,000).

     

    (b)         Section 1.1 of the
Contribution Agreement is hereby amended by adding the following defined
terms:

     

    “Amendment No. 2”
means the Amendment No. 2 to this Agreement, dated as of June 28, 2010, by and
among the Parent Parties, Lightstone Prime and the Company.

     

    “Entity Distributions”
has the meaning set forth in Section
2.7.

     

    “Excluded Grand Prairie
Guarantee Liabilities” means any Loss, as such term is defined in Section 10.2(a),
incurred by Parent OP or its Affiliates (including the Group Companies) after
the Closing as a result of the exercise by the beneficiaries of the Grand
Prairie Guarantee of any rights thereunder.

     

    “Excluded Liabilities”
means any Loss, as such term is defined in Section 10.2(a),
incurred by Parent OP or its Affiliates (including the Group Companies) after
the Closing as a result of (i) the conduct of business by Grand Prairie,
Livermore, Prime Development or any of their respective Subsidiaries prior to
Closing, including construction, development and leasing activities and any debt
obligations, guarantees of debt or completion of construction guarantees of
Grand Prairie, Livermore, Prime Development or any of their respective
Subsidiaries; or (ii) the ownership by Grand Prairie, Livermore, Prime
Development or any of their respective Subsidiaries as of Closing of any real
property; provided, that
“Excluded Liabilities” shall not include (i) any Loss incurred by Parent OP or
its Affiliates (including the Group Companies) to the extent arising as a result
of any of the Entity Distributions or (ii) any Excluded Grand Prairie Guarantee
Liabilities.

     

    “Grand Prairie” means
Grand Prairie Holdings LLC, a Delaware limited liability company.

     

    “Grand Prairie
Distribution” has the meaning set forth in Section
2.7.

     

    “Grand Prairie
Guarantee” means the Continuing Guaranty, dated August 13, 2008, by the
Company, as guarantor, in favor of Amegy Bank National Association, as
lender.

     

    “Livermore” means
Livermore Valley Holdings LLC, a Delaware limited liability
company.

     

    “Livermore
Distribution” has the meaning set forth in Section
2.7.

     

    “Prime Development”
means Prime Development Management Services Inc., a Maryland
corporation.


    
      
         


      

      
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    “Prime Development
Distribution” has the meaning set forth in Section
2.7.

     

    (c)         The
definitions “GPT
Promissory Note,” “GPT Sale Agreement,”
“St. Augustine Cash
Amount” and “St. Augustine
Interests” in Section 1.1 of the
Contribution Agreement are hereby deleted in their entirety.

     

    2.           Amendment to the
Recitals.

     

    (a)         The
third recital in the Contribution Agreement, which currently reads as follows:
“WHEREAS, LVP OP owns
all of the outstanding membership interests of St. Augustine (the “St. Augustine
Interests”) and a related parcel of unimproved land described on Annex C (with all
structures, improvements and fixtures located thereon and all rights of way,
other rights, privileges, licenses, easements and appurtenances belonging or
appertaining thereto, the “St. Augustine
Land”);” is hereby deleted in its entirety.

     

    (b)         The
sixth recital in the Contribution Agreement, which currently reads as follows:
“WHEREAS, LVP OP has
agreed to enter into this Agreement to, subject to the terms and conditions
hereof, sell all of the St. Augustine Interests and the St. Augustine Land to
Parent Sub; and” is hereby deleted in its entirety.

     

    3.           Amendment to Section
2.2.  Section 2.2 of the
Contribution Agreement is hereby amended and restated in its entirety to read as
follows:

     

    “The
closing of the Contributions (the “Closing”) shall take
place at 9:00 a.m., New York time, on the fifth (5th)
Business Day after satisfaction (or valid waiver) of the conditions set forth in
Article 8
(other than any conditions that by their terms are to be satisfied at the
Closing, but subject to the satisfaction or valid waiver of such conditions at
the Closing in accordance with this Agreement) (the “Closing Date”), at
the offices of Paul Weiss, 1285 Avenue of the Americas, New York, New York
10019-6064, unless another time, date or place is agreed to in writing by Parent
OP and the Representative; provided that if on
the fifth (5th)
Business Day after satisfaction (or valid waiver) of the conditions set forth in
Article 8, a
Known Claim shall have been submitted to the Claim Arbitrator and the Claim
Arbitrator shall not have determined the aggregate value of such claim in
accordance with Section 2.3(f)(iii),
the Closing Date shall be extended until five (5) Business Days after the Known
Claim value shall have been determined by the Claim Arbitrator.

     

    4.           Amendment to Section
2.3(b).  The following sentence is hereby added to the end of
Section
2.3(b):

     

    “For the
avoidance of doubt, each of (i) the assets, liabilities and financial condition,
including working capital and debt, of Livermore, Prime Development, Grand
Prairie, St. Augustine, the St. Augustine Land and any Subsidiaries of
Livermore, Prime Development, Grand Prairie and St. Augustine and (ii) the
assets and liabilities of any Group Company related to or arising with respect
to Livermore, Prime Development, Grand Prairie, St. Augustine, the St. Augustine
Land, any Subsidiaries of Livermore, Prime Development, Grand Prairie or St.
Augustine, the Grand Prairie Guarantee or any of the Entity Distributions, shall
be excluded from the calculation of the Aggregate Consideration Value and the
Estimated Aggregate Consideration Value and any component thereof, including the
calculation of Net Working Capital, Net Working Capital Adjustment, and Funded
Indebtedness.”


    
      
         


      

      
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    5.           Amendment to Section
2.7.  Section 2.7 of the
Contribution Agreement is hereby amended and restated in its entirety to read as
follows:

     

    “Section
2.7        Distribution of Ownership
Interests in Livermore, Prime Development and Grand Prairie.

     

    Upon the
terms and subject to the conditions set forth in this Agreement, immediately
prior to the Closing, (a) the Company shall cause Prime Retail L.P. to
distribute to the Company all of the ownership interests owned by Prime Retail
L.P. in Livermore and the Company shall thereupon distribute pro rata to its
members all such ownership interests in Livermore (the “Livermore
Distribution”), (b) the Company shall distribute pro rata to its members
all of the ownership interests owned by the Company in Prime Development (the
“Prime Development
Distribution”) and (c) the Company shall cause Prime Retail L.P. to
distribute to the Company all of the ownership interests owned by Prime Retail
L.P. in Grand Prairie and the Company shall thereupon distribute pro rata to its
members all such ownership interests in Grand Prairie (the “Grand Prairie
Distribution” and together with the Livermore Distribution and the Prime
Development Distribution, the “Entity
Distributions”), so that following the Closing, none of the Parent
Parties and their Affiliates (including the Group Companies) shall have any
direct or indirect ownership interest in Livermore, Prime Development or Grand
Prairie.  The amount of any sales, use, transfer, conveyance,
recordation and filing fees, Taxes and assessments, including fees in connection
with the recordation of instruments related to the Entity Distributions and
other similar transaction Taxes however designated (but not including income,
franchise or gains Taxes), that are properly levied by any Taxing Authority and
are required by Law, applicable to, imposed upon or arising out of the
distribution of the ownership interests as contemplated by this Section 2.7 shall be
shared one-half by the Parent Parties and one-half by Lightstone Prime, LVP OP
and Pro-DFJV.”

     

    6.           Amendment to Article
III.  All references to “(including the St. Augustine Land)”
are hereby deleted in their entirety from Article III of the Contribution
Agreement.

     

    7.           Amendment to Section
3.16(b).  Section 3.16(b) of
the Contribution Agreement is hereby be amended and restated in its entirety to
read as follows:

     

    “(b)        Except
as listed in Schedule
3.16(b), each Group Company (i) owns fee simple title to each of the real
properties (or the applicable portion thereof) described on Schedule 3.16(b) as
being owned in fee by such Group Company and (ii) has a valid leasehold interest
in each of the real properties (or the applicable portion thereof) described on
Schedule
3.16(b) as being ground leased by such Group Company pursuant to those
certain ground leases (together with any amendments thereto, collectively, the
“Company Ground
Leases”) described on Schedule 3.16(b) (all
such owned and leased real property interests, together with all buildings,
structures and other improvements and fixtures located on or under such real
property and all easements, rights and other appurtenances to such real property
are referred to herein as collectively, the “Owned Real
Properties,”).  The interests of the Group Companies in the
Owned Real Properties are good, marketable and insurable and the same are owned
free and clear of all Liens except for Permitted Liens.”


    
      
         


      

      
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    8.           Amendment to Section
3.16(w).  Section 3.16(w) of
the Contribution Agreement is hereby deleted in its entirety.

     

    9.           Amendment to Section
3.21.  The following paragraph is hereby added at the end of
Section 3.21 of
the Contribution Agreement:

     

    “Except
as set forth in Section 3.23,
notwithstanding anything to the contrary in this Agreement, the Company makes no
representations or warranties, express or implied, with respect to St.
Augustine, Livermore, Prime Development, Grand Prairie, any of their respective
Subsidiaries, the St. Augustine Land, any of St. Augustine’s, Livermore’s, Prime
Development’s, Grand Prairie’s or their respective Subsidiaries’ respective
businesses, assets or liabilities or any of the Entity Distributions, to Parent
REIT, Parent OP or Parent Sub and hereby disclaims all liability and
responsibility for any such representation or warranty made, communicated, or
furnished to Parent REIT, Parent OP or Parent Sub.”

     

    10.         New Section
3.23.  The following new Section 3.23 is
hereby added to the Contribution Agreement:

     

    “The
Company hereby represents and warrants to Parent OP that the entry into
Amendment No. 2 does not and will not, except as set forth in the Company
Schedules, including Schedule 3.23, and
assuming the receipt of the Required Consents and repayment of the Floating Rate
Debt at Closing,  (i) result in a violation or breach of, or cause
acceleration, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration), or require any notice or consent under any of the terms,
conditions or provisions of any Contract to which any Group Company is a party
or by which it or any of their respective properties is bound or affected, (ii)
conflict with or violate any Law or Order applicable to any Group Company or any
of their respective properties or assets or (iii) except as expressly
contemplated by this Agreement and the other Transaction Documents, result in
the creation of any Lien upon any of the assets of any Group Company, the
Company Membership Interests or any membership or other equity interest of any
Group Company; provided, that no
representation or warranty is being made in this Section 3.23 with
respect to any of the Entity Distributions or any antitrust or competition Laws
(or any Orders or Contracts related thereto) that may be applicable to the
Contemplated Transactions or any of the Entity Distributions.  The
Company also hereby represents and warrants to Parent OP that the assets of
Prime Development are related solely to the operation of Livermore and its
Subsidiaries and to no other Subsidiaries of Prime Retail L.P. or the
Company.”


    
      
         


      

      
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    11.         Amendment to Section
4.8.  The following is hereby added at the end of Section 4.8 of the
Contribution Agreement:

     

    “Except
as set forth in Section 4.10,
notwithstanding anything to the contrary in this Agreement, the Contributors
make no representations or warranties, express or implied, with respect to St.
Augustine, Livermore, Prime Development, Grand Prairie, any of their respective
Subsidiaries, the St. Augustine Land, any of St. Augustine’s, Livermore’s, Prime
Development’s, Grand Prairie’s or their respective Subsidiaries’ respective
businesses, assets or liabilities or any of the Entity Distributions, to Parent
REIT, Parent OP or Parent Sub and hereby disclaim all liability and
responsibility for any such representation or warranty made, communicated, or
furnished to Parent REIT, Parent OP or Parent Sub.”

     

    12.         New Section
4.10.  The following new Section 4.10 is
hereby added to the Contribution Agreement:

     

    “Each
Contributor hereby, severally, and not jointly or jointly and severally,
represents and warrants to Parent OP that the entry into Amendment No. 2 does
not and will not, except as set forth in Schedule 3.23, (i)
conflict with or result in any breach of any provision of such Contributor’s
Governing Documents, (ii) result in a violation or breach of, or cause
acceleration, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation of any material agreement to which such Contributor is
a party, or (iii) violate any Law or Order applicable to such Contributor,
except in the case of clauses (ii) and (iii) above, for violations which would
not prevent or materially impair or delay the ability of such Contributor to
perform its respective obligations under this Agreement and provided, that no
representation or warranty is being made in this Section 4.10 with
respect to any of the Entity Distributions or any antitrust or competition Laws
(or any Orders or Contracts related thereto) that may be applicable to the
Contemplated Transactions or any of the Entity Distributions.”


    
      
         


      

      
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    13.         Amendment to Section
5.11.  The following is hereby added at the end of Section 5.11 of the
Contribution Agreement:

    


    “Except
as set forth in Section 3.23 and
Section 4.10,
each of Parent REIT, Parent OP and Parent Sub hereby acknowledges and agrees
that, (i) neither the Company nor any of the Contributors makes any
representations or warranties, express or implied, with respect to St.
Augustine, Livermore, Prime Development, Grand Prairie, any of their respective
Subsidiaries, the St. Augustine Land, any of St. Augustine’s, Livermore’s, Prime
Development’s, Grand Prairie’s or their respective Subsidiaries’ respective
businesses, assets or liabilities or any of the Entity Distributions and (ii) no
representation, warranty or covenant of the Company or any Contributor in this
Agreement or any other Transaction Document shall be deemed breached as a result
of the execution, delivery and performance of Amendment No. 2, or the
consummation of any of the Entity Distributions or transactions related
thereto.  In furtherance of the foregoing, to the extent any
representation, warranty or covenant (other than Section 2.7) of the
Company (including in Section 3.4(a) and
Section 3.4(b))
or any Contributor in any Transaction Document may apply to or otherwise
include, by reference to a schedule or otherwise, any information or obligation
regarding St. Augustine, Livermore, Prime Development, Grand Prairie, any of
their respective Subsidiaries, the St. Augustine Land, any of St. Augustine’s,
Livermore’s, Prime Development’s, Grand Prairie’s or their respective
Subsidiaries’ respective businesses, assets or liabilities or any of the Entity
Distributions, such representation, warranty or covenant shall be deemed
modified to exclude any application thereof to St. Augustine, Livermore, Prime
Development, Grand Prairie, any of their respective Subsidiaries, the St.
Augustine Land, any of St. Augustine’s, Livermore’s, Prime Development’s, Grand
Prairie’s or their respective Subsidiaries’ respective businesses, assets or
liabilities and the Entity Distributions, and such representation, warranty or
covenant, as so modified, shall not be deemed breached to the extent such
exclusion of St. Augustine, Livermore, Prime Development, Grand Prairie, any of
their respective Subsidiaries, the St. Augustine Land, any of St. Augustine’s,
Livermore’s, Prime Development’s, Grand Prairie’s or their respective
Subsidiaries’ respective businesses, assets or liabilities or any of the Entity
Distributions would otherwise result in a breach thereof.”

     

    14.         New Section
5.14.  The following new Section 5.14 is
hereby added to the Contribution Agreement:

     

    “Parent
REIT, Parent OP and Parent Sub hereby jointly and severally represent and
warrant to the Company and the Contributors that the entry into Amendment No. 2
does not and will not (i) conflict with or result in any breach of any provision
of such Person’s Governing Documents, (ii) result in a violation or breach of,
or cause acceleration, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation of any material agreement to which such Person is a
party, or (iii) violate any Law or Order applicable to such Person, except in
the case of clauses (ii) and (iii) above, for violations which would not prevent
or materially impair or delay the ability of such Person to perform its
respective obligations under this Agreement and provided, that no
representation or warranty is being made with respect to any antitrust or
competition Laws (or any Orders or Contracts related thereto) that may be
applicable to the Contemplated Transactions.”

     

    15.         New Section
6.17.  The following new Section 6.17 is
hereby added to the Contribution Agreement:

     

    “Section 6.17  Termination
of Grand Prairie Guarantee

     

    Subject
to Section 6.4,
the Company shall use its reasonable efforts to cause the Grand Prairie
Guarantee to be terminated in full at the Closing without any further liability
to the Company or any of the Parent Parties after the Closing.  If the
Grand Prairie Guarantee is not terminated in full at the Closing, each of
Lightstone Prime, LVP OP and Pro-DFJV shall, subject to Section 6.4, use its
reasonable efforts to cause the Grand Prairie Guarantee to be terminated in full
as soon as reasonably practicable after the Closing without any further
liability to the Company or any of the Parent Parties.”


    
      
         


      

      
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    16.         Amendment to Section
8.2(e).

     

    (a)         Clause
(iii) of Section
8.2(e) of the Contribution Agreement is hereby amended and restated to
read as follows:

     

    “(iii)       evidence
reasonably satisfactory to Parent REIT that the Entity Distributions described
in Section 2.7
shall have been completed.”

     

    (b)         Clause
(v) of Section
8.2(e) of the Contribution Agreement is hereby amended and restated to
read as follows:

     

    “(v)        Intentionally
Omitted.”

     

    17.         Amendment to Section
10.2(a).  Section 10.2(a) is
hereby amended and restated in its entirety as follows:

     

    “(a)         Subject
to the provisions of this Article 10 and the
Escrow Agreement, from and after the Closing, Parent REIT, Parent OP and Parent
OP’s Subsidiaries (including the Group Companies after the Closing) (each a
“Parent
Indemnitee”) shall be entitled, in accordance with the provisions of this
Article 10 and
the Escrow Agreement, to receive proceeds from the Escrow Account as
indemnification in respect of any damages, losses, liabilities, costs, expenses
or obligations of any kind (including, without limitation, reasonable attorneys’
fees and costs of investigation) (each a “Loss” and,
collectively, “Losses”) suffered or
paid, directly or indirectly, as a result of, in connection with, or arising out
of or relating to (i) any breach of any representation or warranty in Article 3 (other than
Section
3.4(a)(i) and, to the extent related to the 2008 Unaudited Financial
Statements, Section
3.4(b)) or in any certificate delivered by or on behalf of the Company
pursuant hereto (without regard to any Company Material Adverse Effect or
materiality qualifications contained in any Non-Excluded Representation and
without regard to any knowledge qualifications), (ii) any breach of any covenant
or agreement contained herein to be performed by the Company (including any
failure of a Group Company to take or refrain from taking any action
contemplated hereby) prior to the Closing (other than Section 6.11 and
Section 6.13),
(iii) the amount of any Severance, Employment and Shut-Down Costs incurred by
Parent REIT, Parent OP, Parent Sub or any of their Affiliates (including any
Group Company after the Closing) which are not paid prior to Closing or taken
into account in connection with the calculation of the Estimated Aggregate
Consideration Value and/or the Final Aggregate Consideration Value, (iv)(A) any
claims against a Group Company by any member or other equity holder of any Group
Company prior to the Closing arising from and relating to the Contemplated
Transactions or the management, operation or conduct of the Group Companies at
or prior to the Closing (collectively, “Minority Claims”) or
(B) in the event the transactions contemplated by the LP Purchase Agreement
shall not have been fully consummated in accordance with their terms at the
Closing (other than as a result of a breach of such Agreement by the Parent
Parties) (1) any out-of-pocket, costs or expenses (including reasonable
attorneys fees) incurred by the Parent Parties to enforce the LP Purchase
Agreement or to defend any claims made by the selling parties under the LP
Purchase Agreement and (2) any additional amounts paid by the Parent Parties in
excess of the purchase price specified in the LP Purchase Agreement (excluding,
for the avoidance of doubt, any amendments thereto after the Closing) for the
applicable securities not acquired at the Closing (including pursuant to any
judgment or settlement); provided, that the
additional costs or expenses incurred by the Parent Parties to acquire such
securities shall be subject to the consent of the Representative (such consent
not to be unreasonably withheld, conditioned or delayed), (v) the amount of any
Pre-Signing Allowances and Commissions incurred by Parent REIT, Parent OP,
Parent Sub or any of their Affiliates (including any Group Company after the
Closing) which are not taken into account in connection with the calculation of
the Estimated Aggregate Consideration Value and/or the Final Aggregate
Consideration Value, (vi) any breach of any representation or warranty in
Article 3 of the Barceloneta Contribution Agreement (without regard to any
Barceloneta Material Adverse Effect or materiality qualifications contained in
any Barceloneta Non-Excluded Representation and without regard to any knowledge
qualifications), (vii) the amount of any Barceloneta Severance, Employment and
Shut-Down Costs incurred by Parent REIT, Parent OP, Parent Sub or any of their
Affiliates (including Barceloneta after the Barceloneta Closing) which are not
paid prior to the Barceloneta Closing or taken into account in connection with
the calculation of the Barceloneta Estimated Aggregate Consideration Value
and/or the Barceloneta Final Aggregate Consideration Value, (viii) the amount of
any Barceloneta Pre-December 8 Allowances and Commissions incurred by Parent
REIT, Parent OP, Parent Sub or any of their Affiliates (including Barceloneta
after the Barceloneta Closing) which are not taken into account in connection
with the calculation of the Barceloneta Estimated Aggregate Consideration Value
and/or the Barceloneta Final Aggregate Consideration Value and (ix) any Excluded
Liabilities.  For the avoidance of any doubt, no Contributor,
Barceloneta Contributor or LVP REIT shall assert any objection to the
satisfaction of the indemnification obligations hereunder out of the Escrow
Account solely by reason of that Person not having made any representation,
warranty, covenant or agreement with respect to the matter giving rise to the
Loss, to the extent another such Party, the Company or Barceloneta shall have
made a representation, warranty, covenant or agreement with respect thereto in
this Agreement or in the Barceloneta Contribution Agreement.”


    
      
         


      

      
        9

        
          

        

      

      
         


      

    


    18.         Amendment to Section
10.2(b).  Section 10.2(b) is
hereby amended and restated in its entirety as follows:

     

    “(b)        Subject
to the provisions of this Article 10, from and
after Closing, each Contributor and LVP REIT shall severally, and not jointly or
jointly and severally, indemnify, defend and hold harmless, the Parent
Indemnitees from and against any Losses suffered or paid, directly or
indirectly, as a result of, in connection with, or arising out of or related to
(i) any breach of any representation or warranty of such Contributor in
Article 4 or,
in the case of LVP REIT, Section 4.3(b), as of
the Closing Date, as though such representation and warranty was made on the
Closing Date, (ii) any breach of any covenant or agreement contained herein
to be performed by such Contributor or, in the case of LVP REIT, Section 6.13, prior
to the Closing, (iii) any breach of any covenant or agreement contained herein
to be performed by such Contributor or, in the case of LVP REIT, Section 6.16 or Section 7.2(b), at or
after the Closing, and (iv), in the case of Lightstone Prime, LVP OP and
Pro-DFJV, any Excluded Grand Prairie Guarantee Liabilities.”


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    19.         Amendment to Section
10.2(f).  Section 10.2(f) is
hereby amended and restated in its entirety as follows:

     

    “(f)
Subject to the provisions of this Article 10, the
ability of any Parent Indemnitee to receive proceeds from the Escrow Account
pursuant to Section
10.2(a)(i), Section 10.2(a)(ii),
Section
10.2(a)(iii), Section 10.2(a)(iv),
Section
10.2(a)(v) or Section 10.2(a)(ix)
or indemnification pursuant to Section 10.2(b)(i) or
Section
10.2(b)(ii) and the ability of any Member Indemnitee to receive
indemnification pursuant to Section 10.2(d)(i) or
Section
10.2(d)(ii) shall survive the Closing and shall terminate on the date
that is the eighteen (18) month anniversary of the Closing Date (the “Survival Period Termination
Date”), in each case except to the extent such Parent Indemnitee or
Member Indemnitee, as applicable, shall have made, prior to the Survival Period
Termination Date, a claim in accordance with the terms of this Article 10, in which
case such claim, if then unresolved, shall not be extinguished at the Survival
Period Termination Date and shall survive the Survival Period Termination Date
until finally resolved in accordance with the provisions of this Article 10 and,
if applicable, the Escrow Agreement; provided, that the
right of a Parent Indemnitee to receive indemnification pursuant to Section 10.2(b)(i)
with respect to a breach of the representations and warranties in Section 4.2
(Authority) and Section 4.4 (Title)
shall survive indefinitely and the right of a Member Indemnitee to receive
indemnification pursuant to Section 10.2(d)(i)
with respect to a breach of the representations and warranties in Section 5.2
(Authority) shall survive indefinitely.  Subject to the provisions of
this Article
10, the ability of any Parent Indemnitee to receive proceeds from the
Escrow Account pursuant to Section 10.2(a)(vi),
Section
10.2(a)(vii) or Section 10.2(a)(viii)
or indemnification pursuant to Section 10.2(c)(i)
and the ability of any Barceloneta Member Indemnitee to receive indemnification
pursuant to Section
10.2(e)(i) shall survive the Closing and shall terminate on the date that
is the eighteen (18)-month anniversary of the Barceloneta Closing Date (the
“Barceloneta Survival
Period Termination Date”), in each case except to the extent such Parent
Indemnitee or Barceloneta Member Indemnitee, as applicable, shall have made,
prior to the Barceloneta Survival Period Termination Date, a claim in accordance
with the terms of this Article 10, in which
case such claim, if then unresolved, shall not be extinguished at the
Barceloneta Survival Period Termination Date and shall survive the Barceloneta
Survival Period Termination Date until finally resolved in accordance with the
provisions of this Article 10 and,
if applicable, the Escrow Agreement; provided, that the
right of a Parent Indemnitee to receive indemnification pursuant to Section 10.2(c)(i)
with respect to a breach of the representations and warranties in Section 4.2
(Authority) of the Barceloneta Contribution Agreement and Section 4.4 (Title)
of the Barceloneta Contribution Agreement shall survive indefinitely and the
right of a Barceloneta Member Indemnitee to receive indemnification pursuant to
Section
10.2(e)(i) with respect to a breach of the representations and warranties
in Section 5.2
(Authority) of the Barceloneta Contribution Agreement shall survive
indefinitely.  The right of a Parent Indemnitee to receive
indemnification pursuant to Section 10.2(b)(iii),
Section
10.2(b)(iv), or Section 10.2(c)(ii),
a Member Indemnitee to receive indemnification pursuant to Section 10.2(d)(iii)
or a Barceloneta Member Indemnitee to receive indemnification pursuant to Section 10.2(e)(ii)
shall survive indefinitely.”


    
      
         


      

      
        11

        
          

        

      

      
         


      

    


    20.         Amendments to Company
Schedules.  Notwithstanding anything to the contrary in the
Contribution Agreement or any other Transaction Document, following the
execution of this Amendment and prior to Closing, the Company shall have the
right, by providing notice to Parent OP in accordance with the Contribution
Agreement, to supplement or amend the Company Schedules if necessary or
advisable to reflect any matter reasonably contemplated by this Amendment, which
Company Schedules, if amended or supplemented, shall be effective for all
purposes of the Contribution Agreement.

     

    21.         No Other
Amendments.  Except as otherwise expressly amended or modified
hereby, all of the terms and conditions of the Contribution Agreement shall
continue in full force and effect.  Each reference to “hereof”,
“hereunder”, “herein” and “hereby” and each similar reference in the
Contribution Agreement shall refer to the Contribution Agreement as amended
hereby.

     

    22.         Entire Agreement;
Assignment.

     

    (a)         This
Amendment, the Contribution Agreement (including Amendment No. 1 thereto), the
Barceloneta Contribution Agreement and the other Transaction Documents contain
the entire agreement of the parties hereto respecting the subject matter hereof
and supersede all prior agreements among the parties hereto respecting the
same.  The parties hereto have voluntarily agreed to define their
rights, liabilities and obligations respecting the subject matter hereof
exclusively in contract pursuant to the express terms and provisions of this
Amendment, the Contribution Agreement (including Amendment No. 1 thereto), the
Barceloneta Contribution Agreement and the other Transaction Documents and the
parties hereto expressly disclaim that they are owed any duties or are entitled
to any remedies not expressly set forth in this Amendment, the Contribution
Agreement (including Amendment No. 1 thereto), the Barceloneta Contribution
Agreement or the other Transaction Documents.  Furthermore, the
parties hereto each hereby acknowledges that this Amendment embodies the
justifiable expectations of sophisticated parties derived from arm’s-length
negotiations; all parties to this Amendment specifically acknowledge that no
party has any special relationship with another party that would justify any
expectation beyond that of ordinary parties in an arm’s-length
transaction.  The sole and exclusive remedies for any breach of the
terms and provisions of this Amendment, the Contribution Agreement (including
Amendment No. 1 thereto), the Barceloneta Contribution Agreement or the other
Transaction Documents (including any representations and warranties set forth
herein, the Contribution Agreement (including Amendment No. 1 thereto), the
Barceloneta Contribution Agreement or the other Transaction Documents, made in
connection herewith, the Contribution Agreement (including Amendment No. 1
thereto), the Barceloneta Contribution Agreement or the other Transaction
Documents or as an inducement to enter into this Amendment, the Contribution
Agreement (including Amendment No. 1 thereto), the Barceloneta Contribution
Agreement or the other Transaction Documents) or any claim or cause of action
otherwise arising out of or related to the Contemplated Transactions shall be
those remedies available at law or in equity for breach of contract only (as
such contractual remedies have been further limited or excluded pursuant to the
express terms of the Contribution Agreement (including Amendment No. 1 thereto),
the Barceloneta Contribution Agreement or the other Transaction Documents); and
each party hereto hereby agrees that no party hereto shall have any remedies or
cause of action (whether in contract or in tort) for any statements,
communications, disclosures, failures to disclose, representations or warranties
not set forth in this Amendment, the Contribution Agreement (including Amendment
No. 1 thereto), the Barceloneta Contribution Agreement or the other Transaction
Documents.  Notwithstanding the foregoing, claims by any Parent Party
against any Contributor, to the extent arising from the Fraud of such
Contributor, shall not be prohibited by this Section
22.


    
      
         


      

      
        12

        
          

        

      

      
         


      

    


    (b)         This
Amendment may not be assigned by any party (whether by operation of law or
otherwise) without the prior written consent of Parent REIT, Parent OP, the
Company and the Representative.  Any attempted assignment of this
Amendment not in accordance with the terms of this Section 22 shall be
void; provided,
however, that
so long as such assignment would not prevent or materially impair or delay the
Closing of the Contemplated Transactions, Parent REIT, Parent OP or Parent Sub
may assign this Amendment and any of their rights under this Amendment to one or
more Affiliates of Parent REIT, Parent OP or Parent Sub; provided, that any
such assignment shall not relieve Parent REIT, Parent OP or Parent Sub of any of
their obligations hereunder.

     

    23.         Governing
Law.  This Amendment, and all claims or causes of action
(whether in contract or tort) that may be based upon, arise out of or relate to
this Amendment, or the negotiation, execution or performance of this Amendment
(including any claim or cause of action based upon, arising out of or related to
any representation or warranty made in or in connection with this Amendment or
as an inducement to enter into this Amendment), shall be governed by the
internal laws of the State of Delaware as applicable to agreements made and to
be performed entirely within the State of Delaware, without regard to conflict
of law principles or rules.

     

    24.         Fees and
Expenses.  Except as otherwise expressly set forth in this
Amendment, the Contribution Agreement or Annex E thereof, whether or not the
Closing is consummated, all fees and expenses incurred in connection with this
Amendment, the Contribution Agreement and the Contemplated Transactions,
including, without limitation, the fees and disbursements of counsel, financial
advisors and accountants, shall be paid by the party incurring such fees or
expenses.

     

    25.         Construction;
Interpretation.  The term “this Amendment” means this Amendment
together with all schedules, exhibits and annexes hereto, as the same may from
time to time be amended, modified, supplemented or restated in accordance with
the terms hereof.  The headings contained in this Amendment are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment.  No party, nor its respective
counsel, shall be deemed the drafter of this Amendment for purposes of
construing the provisions hereof, and all provisions of this Amendment shall be
construed according to their fair meaning and not strictly for or against any
party hereto.  Unless otherwise indicated to the contrary herein by
the context or use thereof: (i) the words, “herein”, “hereto”, “hereof” and
words of similar import refer to this Amendment as a whole, including, without
limitation, the Schedules, exhibits and annexes, and not to any particular
section, subsection, paragraph, subparagraph or clause contained in this
Amendment; (ii) masculine gender shall also include the feminine and neutral
genders, and vice versa; and (iii) words importing the singular shall also
include the plural, and vice versa.


    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    26.         Exhibits, Annexes and
Schedules.  All exhibits, annexes and Schedules, or documents
expressly incorporated into this Amendment, are hereby incorporated into this
Amendment and are hereby made a part hereof as if set out in full in this
Amendment.  The specification of any dollar amount in this Amendment
or the inclusion of any specific item in any Schedule is not intended to imply
that such amounts, or higher or lower amounts or the items so included or other
items, are or are not material, and no party shall use the fact of the setting
of such amounts or the inclusion of any such item in any dispute or controversy
as to whether any obligation, items or matter not described herein or included
in a Schedule is or is not material for purposes of this Amendment.

     

    27.         Severability.  If
any term or other provision of this Amendment is invalid, illegal or
unenforceable, all other provisions of this Amendment shall remain in full force
and effect so long as the economic or legal substance of the Contemplated
Transactions (as amended hereby) is not affected in any manner materially
adverse to any party.

     

    28.         Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement.  Delivery of an executed counterpart of a signature page to
this Amendment by facsimile or scanned pages shall be effective as delivery of a
manually executed counterpart to this Amendment.

     

    29.         Waiver of Jury
Trial.  Each party hereto hereby waives, to the fullest extent
permitted by law, any right to trial by jury of any claim, demand, action, or
cause of action (i) arising under this Amendment or (ii) in any way connected
with or related or incidental to the dealings of the parties in respect of this
Amendment or any of the transactions related hereto, in each case, whether now
existing or hereafter arising, and whether in contract, tort, equity, or
otherwise.  Each party hereto hereby further agrees and consents that
any such claim, demand, action, or cause of action shall be decided by court
trial without a jury and that the parties hereto may file a copy of this
Amendment with any court as written evidence of the consent of the parties
hereto to the waiver of their right to trial by jury.

     

    30.         Jurisdiction and
Venue.  Each of the parties hereto (i) submits to the exclusive
jurisdiction of any state or federal court sitting in Delaware, in any action or
proceeding (whether in contract or tort) arising out of or relating to this
Amendment, or the negotiation, execution or performance of this Amendment
(including any claim or cause of action based upon, arising out of or related to
any representation or warranty made in or in connection with this Amendment or
as an inducement to enter into this Amendment), (ii) agrees that all such claims
in respect of such action or proceeding shall be heard and determined in any
such court and (iii) agrees not to bring any such action or proceeding in any
other court.  Each of the parties hereto waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety or other security that might be required of any other
parties hereto with respect thereto.  Each of the parties hereto
agrees that service of summons and complaint or any other process that might be
served in any action or proceeding may be made on such party by sending or
delivering a copy of the process to the party to be served at the address of the
party and in the manner provided for the giving of notices in Section 12.2 of the
Contribution Agreement.  Nothing in this Section 30, however,
shall affect the right of any party hereto to serve legal process in any other
manner permitted by Law.  Each party hereto agrees that a final,
non-appealable judgment in any action or proceeding so brought shall be
conclusive and may be enforced by suit on the judgment or in any other manner
provided by Law.

    


    [Remainder
of page intentionally left blank.]


    
      
         


      

      
        14

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed on the date first written above.

     

    
      
        
          	 	
                  SIMON
      PROPERTY GROUP, INC.

                
	 	 
      
	 	
                  By: 

                	
                  /s/ David Simon

                
	 	 
      	
                  Name:
      David Simon

                
	 	 
      	
                  Title:
      Chairman of the Board and Chief Executive

                  Officer

                
	 	 
      	 
      
	 	
                  SIMON
      PROPERTY GROUP, L.P.

                
	 	
                  By:

                	
                  Simon
      Property Group, Inc. a Delaware corporation

                
	 	 
      	
                  its
      General Partner

                
	 	 
      
	 	
                  By:

                	
                  /s/ David Simon

                
	 	 
      	
                  Name:
      David Simon

                
	 	 
      	
                  Title:
      Chairman of the Board and Chief Executive

                  Officer

                
	 	 
      	 
      
	 	
                  MARCO
      CAPITAL ACQUISITION, LLC

                
	 	 
      
	 	
                  By:

                	
                  /s/ Stephen E. Sterrett

                
	 	 
      	
                  Name:
      Stephen E. Sterrett

                
	 	 
      	
                  Title:
      Executive Vice President and Chief Financial

                  Officer

                
	 	 
      	 
      
	 	
                  PRIME
      OUTLETS ACQUISITION COMPANY LLC

                
	 	 
      
	 	
                  By:

                	
                  /s/ Joseph E. Teichman

                
	 	 
      	
                  Name:
      Joseph E. Teichman

                
	 	 
      	
                  Title:
      Authorized Signatory

                
	 	 
      	 
      
	 	
                  LIGHTSTONE
      PRIME, LLC

                
	 	
                  Solely
      in its capacity as the Representative

                
	 	 
      
	 	
                  By:

                	
                  /s/ Joseph E. Teichman

                
	 	 
      	
                  Name:
      Joseph E. Teichman

                
	 	 
      	
                  Title:
      Authorized Signatory

                


        

      

    

     

    
      Signature
Page to Amendment No. 2 to the Contribution Agreement


    

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        
          
            
              
                	
                        Annex
      D

                      	 
	
                        Applicable Percentage
    Interests

                      	 
	 	 
	 
      	 	
                        Percentage

                      	 
	
                        Entity

                      	 	
                        Interest

                      	 
	 
      	 	 	 
	
                        Lightstone
      Prime LLC

                      	 	 	39.828	%
	
                        Pro-DFJV
      Holdings LLC

                      	 	 	14.913	 
	
                        BRM,
      LLC

                      	 	 	16.776	 
	
                        Lightstone
      Value Plus REIT LP

                      	 	 	27.069	 
	
                        Lightstone
      Holdings

                      	 	 	1.414	 
	 
      	 	 	 	 
	
                        Total
      Percentage Interests

                      	 	 	100.000	%


              

            

          

        

      

    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    

     


    
      
        
          
            
              
                
                  	
                          Annex
      G

                        	 
	
                          Escrow Unit Allocation
      Percentages

                        	 
	 	 
	 
      	 	
                          Percentage

                        	 
	
                          Entity

                        	 	
                          Interest

                        	 
	 
      	 	 	 
	
                          Lightstone
      Prime LLC

                        	 	 	44.086	%
	
                          Pro-DFJV
      Holdings LLC

                        	 	 	13.472	 
	
                          BRM,
      LLC

                        	 	 	17.035	 
	
                          Lightstone
      Value Plus REIT LP

                        	 	 	23.871	 
	
                          Lightstone
      Holdings

                        	 	 	1.536	 
	 
      	 	 	 	 
	
                          Total
      Percentage Interests

                        	 	 	100.000	%