ITEM 10(mmm)
REDEMPTION RIGHTS AGREEMENT (COMMON UNITS)
Redemption Rights Agreement, dated November 27, 2002, among GGP Limited
Partnership, a Delaware limited partnership (together with its successors and
assigns, the "Partnership"), General Growth Properties, Inc., a Delaware
corporation (together with its successors and assigns, the "General Partner"),
and JSG, LLC, a Delaware limited liability company (together with its successors
and assigns, the "Contributing Party").
R E C I T A L S
WHEREAS, the General Partner is the general partner of the Partnership;
WHEREAS, shares of common stock, $.10 par value per share, of the
General Partner (the "Common Stock") are listed on the New York Stock Exchange;
WHEREAS, pursuant to that certain Contribution and Sale Agreement dated
as of October 18, 2002 (as the same has been amended and may be further amended
from time to time, the "Purchase Agreement"), among the Partnership,
Contributing Partner and the other parties thereto, the Contributing Party is
being admitted as a limited partner of the Partnership and the Partnership is
issuing to it 7% Series C Cumulative Convertible Preferred Units of limited
partnership in the Partnership (such units that are being issued pursuant to the
Purchase Agreement or any other securities issued in substitution therefor
pursuant to the Series C Preferred Unit Designation, the "Series C Preferred
Units");
WHEREAS, pursuant to the Partnership Agreement (as defined below), the
Series C Preferred Units may be converted into common units of limited
partnership in the Partnership (such units into which Series C Preferred Units
have been converted or any other securities issued in substitution therefor
(other than pursuant to this Agreement), the "Common Units"); and
WHEREAS, the parties desire to set forth herein the terms and
conditions upon which the Contributing Party may cause the Partnership to redeem
its Common Units.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
"Acts" shall mean the Securities Act and the Exchange Act,
collectively.
"Affiliates" shall mean "affiliates" as defined pursuant to the
Securities Act and the regulations promulgated thereunder.
"Business Day" shall mean any day upon which commercial banks are open
for business in Chicago, Illinois.
"Cash Purchase Price" shall mean, with respect to any redeemed or
purchased Common Units, an amount of cash equal to the value of the Share
Purchase Price (computed as of the
Computation Date and equal to the Current Per Share Market Price on such
Computation Date multiplied by the number of Shares included in the Share
Purchase Price) that would be payable with respect to such Common Units assuming
the Share Purchase Price were paid in full satisfaction of the Purchase Price
for such Common Units. In the event that the Share Purchase Price includes
securities and/or other property other than Shares, then the value of such other
securities and/or property shall be determined by the General Partner acting in
good faith on the basis of the closing prices of securities if listed on a
nationally recognized exchange and otherwise on the basis of such quotations and
other information as the General Partner considers, in its reasonable judgment,
appropriate.
"Certificate of Incorporation" shall mean the Certificate of
Incorporation of the General Partner, as the same may be amended from time to
time.
"Claims" shall have the meaning set forth in Section 4.1(c).
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
successor code.
"Common Stock" shall have the meaning set forth in the recitals.
"Common Units" shall have the meaning set forth in the recitals.
"Computation Date" shall mean the date on which the applicable Notice
is received by the Partnership or, if such date is not a Business Day, the first
Business Day thereafter.
"Conversion Factor" shall mean 100%, provided that such factor shall be
adjusted in accordance with Section 6(a).
"Current Per Share Market Price" shall have the meaning set forth in
the Partnership Agreement.
"Demand Notice" shall have the meaning set forth in Section 4.1(c).
"Demand Resale Registration Statement" shall have the meaning set forth
in Section 4.1(c).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Exchange Act Reporting Company" shall mean any corporation or other
entity which is subject to the reporting requirements of the Exchange Act.
"Issuance Registration Statement" shall have the meaning set forth in
Section 4.1(a).
"Liens" shall mean liens, pledges, security interests, mortgages,
encumbrances and other claims of any type or kind.
-2-
"Major Transaction Event" shall mean, with respect to the General
Partner, (a) a reclassification, capital reorganization or other similar change
regarding or affecting outstanding Shares (other than a change addressed in
Section 6(a)); (b) a merger or consolidation of the General Partner with one or
more other corporations or entities, other than a merger pursuant to which the
General Partner is the surviving corporation and the outstanding Shares are not
affected, (c) a sale, lease or exchange of all or substantially all of the
General Partner's assets or (d) the liquidation, dissolution or winding up of
the General Partner.
"Notice" shall have the meaning set forth in Section 3.2.
"Partnership Agreement" shall mean that certain Second Amended and
Restated Agreement of Limited Partnership of the Partnership dated April 1,
1998, as previously amended and as the same may be further amended from time to
time.
"Person" shall mean any natural person, corporation, partnership,
association, limited liability company, trust or other entity.
"Preferred Units" shall mean preferred units of limited partnership in
the Partnership that have been issued prior hereto or are issued hereafter.
"Prospectus" shall mean, with respect to any Registration Statement,
the prospectus constituting a part thereof, as amended or supplemented.
"Purchase Agreement" shall have the meaning set forth in the recitals.
"Purchase Price" shall mean the Cash Purchase Price or the Share
Purchase Price, or a combination thereof.
"Redemption Rights" shall have the meaning set forth in Section 2.
"Registration Statements" shall have the meaning set forth in Section
4.1(g).
"REIT" shall mean real estate investment trust as such term is defined
under the Code.
"REIT Requirements" shall have the meaning set forth in the Partnership
Agreement, as the same may change from time to time.
"Resale Registration Statement" shall have the meaning set forth in
Section 4.1(c).
"Rights" shall have the meaning set forth in Section 6(b).
"SEC" shall mean the Securities and Exchange Commission.
"Section 4.1(b) Resale Registration Statement" shall have the meaning
set forth in Section 4.1(b).
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor statute.
-3-
"Series C Preferred Units" shall have the meaning set forth in the
recitals.
"Series C Preferred Unit Designation" shall mean Schedule A to the
amendment to the Partnership Agreement that is being executed and delivered
concurrently herewith.
"Series C Preferred Units Redemption Rights Agreement" shall mean that
certain Redemption Rights Agreement (Series C Preferred Units) dated the date
hereof, among the parties hereto.
"Share Purchase Price" shall mean, with respect to the exercise of any
Redemption Rights and subject to the provisions of Section 6(c), a number of
Shares equal to the product of (a) the number of Common Units being redeemed or
purchased multiplied by (b) the Conversion Factor; provided, however, that, in
the event the General Partner, after the date of this Agreement, issues to all
holders of Shares rights, options, warrants or convertible or exchangeable
securities entitling the stockholders to subscribe for or purchase Shares (other
than Rights referred to in Section 6(b) that have been issued pursuant thereto)
or any other securities or property (other than distributions paid in cash),
then the Share Purchase Price also shall include such rights, options, warrants
or convertible or exchangeable securities or other securities or property that a
holder of that number of Shares would have been entitled to receive had such
holder held such Shares immediately prior to the time holders of Shares became
entitled thereto (except to the extent that provision otherwise has been made
for such holder to receive such rights, options, warrants or convertible or
exchangeable securities or other securities or property or similar rights,
options, warrants or convertible or exchangeable securities in respect of Common
Units or adjustment otherwise has been made in respect thereof).
"Shares" shall mean shares of the Common Stock.
"Specified Partnership Agreement Provisions" shall mean (a) Article
VIII of the Partnership Agreement and (b) restrictions with respect to Preferred
Units of the types contained in Sections 5 and/or 6 of the Series C Preferred
Unit Designation.
"Window Period" shall mean the period consisting of the fourteen
calendar days immediately preceding the first anniversary of the date hereof and
the fourteen calendar days immediately following such first anniversary.
2. Grant of Redemption Rights.
(a) Upon the terms and subject to the conditions contained herein, the
Partnership does hereby grant to the Contributing Party, and the Contributing
Party does hereby accept, the right, but without obligation on the part of the
Contributing Party, to require the Partnership to redeem from time to time part
or all of the Common Units of the Contributing Party for the Cash Purchase Price
with respect to such Common Units ("Redemption Rights").
(b) Notwithstanding the provisions of Section 2(a), the General Partner
may, in its sole and absolute discretion, assume and satisfy the obligation of
the Partnership with respect to the Contributing Party's exercise of a
Redemption Right by paying to the Contributing Party, at the General Partner's
election (which may be exercised in the General Partner's sole discretion),
either the Cash Purchase Price or the Share Purchase Price (or a combination
thereof) with
-4-
respect to the Common Units for which the Contributing Party exercised its
Redemption Rights. If the General Partner assumes such obligations with respect
to the exercise by the Contributing Party of a Redemption Right as to certain
Common Units and makes the required payment of the Share Purchase Price, the
Cash Purchase Price or any combination thereof, then the Partnership shall have
no obligation to pay any amount to the Contributing Party with respect to the
exercise of a Redemption Right for such Common Units, and any Common Units
purchased shall be owned by the General Partner for all purposes.
(c) If the General Partner shall assume and satisfy the obligations of
the Partnership with respect to the exercise of a Redemption Right by the
Contributing Party, the Partnership, the Contributing Party and the General
Partner each shall treat the transaction between the General Partner and the
Contributing Party as a sale of the Contributing Party's Common Units (or a
portion thereof) to the General Partner for federal income tax purposes.
(d) Upon the redemption or purchase of part or all of the Contributing
Party's Common Units and the payment of the Purchase Price with respect thereto,
such Person shall be deemed withdrawn as a Partner in the Partnership to the
extent of the Common Units redeemed or purchased and shall have no further
rights or obligations under this Agreement with respect to such redeemed or
purchased Common Units; provided, however, that the Contributing Party's rights
under this Agreement with regard to any other Common Units will continue in full
force and effect.
(e) No fractional Shares shall be issued hereunder. In lieu of
fractional Shares, the General Partner shall pay cash based on the Current Per
Share Market Price on the relevant Computation Date.
3. Exercise of Redemption Rights.
3.1 Time for Exercise of Redemption Rights. The Contributing Party may
exercise its Redemption Rights in whole or in part and at any time and from time
to time on or after the first anniversary of the date hereof; provided, however,
that the Redemption Rights may not be exercised at any one time by the
Contributing Party with respect to less than 1,000 Common Units (or all the
Common Units then owned by the Contributing Party if the Contributing Party owns
less than 1,000 Common Units) or in the event that such exercise of Redemption
Rights (or the assignment of Common Units or delivery of either the Cash
Purchase Price or the Share Purchase Price with respect thereto) violates the
Specified Partnership Agreement Provisions or applicable law. Once given, a
Notice shall be irrevocable subject to the payment of the Purchase Price for the
Common Units specified therein in accordance with the terms hereof.
3.2 Method of Exercise. The Redemption Rights shall be exercised by
delivery to the Partnership of (a) written notice (the "Notice") in the form of
Exhibit A specifying the number of the Common Units to be redeemed and the name
or names (with address) in which any Shares issuable upon such exercise shall be
registered if different than the Contributing Party and (b) the certificates, if
any, representing such Common Units. Notwithstanding anything to the contrary
contained herein, in the event that the exercise of the Redemption Rights with
respect to all of the Common Units of any deceased Person or the Common Units of
any partnership, limited liability company or pass-through entity that are
allocable to a deceased partner, member or other
-5-
Person as of the date of death shall not result in the recognition of gain for
federal income tax purposes by any party, the Partnership shall have the right
to require the Contributing Party (or its legal representative) or partnership,
limited liability company or other pass-through entity to exercise the
Redemption Rights as to all of such Common Units and to take any and all
necessary action hereunder to effect such exercise (but, in the event of any
exercise described in this sentence, the General Partner must assume and satisfy
the obligations of the Partnership with respect thereto as provided in Section
2(b) and deliver the Share Purchase Price with respect thereto).
3.3 Closing. The closing of the redemption or purchase and sale
pursuant to an exercise of the Redemption Rights by the Contributing Party shall
occur within 30 days following the giving of the Notice. The Contributing Party
shall execute such other documents as the General Partner may reasonably require
in connection with the closing of such redemption or purchase and sale.
3.4 Payment of Cash or Issuance of Shares. At the closing of the
redemption or purchase and sale of Common Units pursuant to an exercise of
Redemption Rights by the Contributing Party, the Partnership shall deliver to
the Contributing Party the Cash Purchase Price by check or, in the event that
the General Partner has assumed the obligations of the Partnership with respect
to such exercise of Redemption Rights, the General Partner shall deliver to the
Contributing Party, at the election of the General Partner (which may be
exercised in the General Partner's sole discretion) either (a) the Cash Purchase
Price by check or (b) certificates representing the Shares and any other
securities and/or other property constituting the Share Purchase Price, together
with cash in lieu of the issuance of any fraction of a Share as provided in
Section 2(e), or a combination thereof.
4. Matters Relating to Shares.
4.1 Registration.
(a) The General Partner shall (i) prepare, file and use reasonable best
efforts to cause to become effective as soon as practicable thereafter a
registration statement (the "Issuance Registration Statement"), which may be on
Form S-3, under the Securities Act relating to the Shares issuable by the
General Partner upon exercise of the Redemption Rights assuming full conversion
of the Series C Preferred Units into Common Units and full satisfaction of the
Redemption Rights by delivery of Shares and (ii) prepare and file with the SEC
such amendments and supplements to the Issuance Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the Issuance
Registration Statement effective and to comply with the provisions of the
Securities Act. The General Partner shall file the Issuance Registration
Statement during the Window Period.
(b) In the event that, for any reason, the General Partner (i) is
unable to cause the Issuance Registration Statement to be declared effective by
the SEC within ninety (90) days following the filing date thereof or (ii)
otherwise determines that it will be unable to cause the Issuance Registration
Statement to be declared effective by the SEC within such ninety (90) day period
or that it will be unable or impracticable to keep the Issuance Registration
Statement continuously effective, the General Partner shall file with the SEC,
within thirty (30) days after
-6-
the earlier of such ninetieth day and the date of such determination, a
registration statement on Form S-3 or other appropriate registration form with
the SEC covering the resale by Contributing Party of such Shares and shall use
its reasonable best efforts to cause such registration statement (the "Section
4.1(b) Resale Registration Statement") to become effective as soon as
practicable thereafter. Following the effective date of the Section 4.1(b)
Resale Registration Statement and until the Shares covered by the Section 4.1(b)
Resale Registration Statement have been sold or are eligible for resale under
Rule 144(k) promulgated under the Securities Act, the General Partner shall keep
the Section 4.1(b) Resale Registration Statement current, effective and
available for the resale by Contributing Party of the Shares delivered to it
pursuant hereto.
(c) If the Issuance Registration Statement is not effective for any
reason, Shares are issued to the Contributing Party without registration under
the Securities Act and a Section 4.1(b) Resale Registration Statement covering
the resale of such Shares is not effective, the General Partner shall, upon the
written request of any Contributing Party (a "Demand Notice"), cause to be filed
as soon as practicable after the date of such request by such Contributing Party
a registration statement (a "Demand Resale Registration Statement" and each of a
Demand Resale Registration Statement and a Section 4.1(b) Resale Registration
Statement is hereinafter sometimes referred to as a "Resale Registration
Statement") in accordance with Rule 415 under the Securities Act (or such other
rule as is applicable to the proposed sale) relating to the sale by such
Contributing Party of all or a portion of the Shares held by such Contributing
Party in accordance with the terms hereof, and shall use reasonable best efforts
to cause such Demand Resale Registration Statement to be declared effective by
the SEC as soon as practicable thereafter. The General Partner agrees to use its
reasonable best efforts to keep the Demand Resale Registration Statement
continuously effective, after its date of effectiveness, with respect to the
Shares of the requesting Contributing Party until the earlier of (a) the date on
which all of the Shares covered by the Demand Resale Registration Statement have
been sold and (b) the date on which all of the Shares held by such Contributing
Party have become eligible for sale pursuant to Rule 144(k) (or any successor
provision).
(d) During the time period when a Resale Registration Statement is
required to be current, effective and available under this Section 4.1, the
General Partner also shall:
(i) promptly prepare and file with the SEC such
amendments and supplements to such Resale Registration Statement and
the Prospectus relating thereto, as may be necessary to keep such
Resale Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the sale of the Shares
covered by such Resale Registration Statement whenever Contributing
Party shall desire to sell or otherwise dispose of the same but in no
event beyond the period in which the Registration Statement is required
to be kept in effect. Upon ten (10) business days' notice, the General
Partner shall file any supplement or post-effective amendment to such
Resale Registration Statement with respect to the plan of distribution
or a Contributing Party's ownership interests in its Shares that is
reasonably necessary to permit the sale of such Contributing Party's
Shares pursuant to such Resale Registration Statement;
(ii) furnish to Contributing Party, without charge,
such number of authorized copies of the Prospectus relating thereto,
and any amendments or supplements to such Prospectus, in conformity
with the requirements of the Securities Act, and such
-7-
other documents as Contributing Party may reasonably request in order
to facilitate the public sale or other disposition of the Shares owned
by Contributing Party;
(iii) register or qualify the securities covered by
such Resale Registration Statement under state securities or blue sky
laws of such jurisdictions as are reasonably required to effect a sale
thereof and do any and all other acts and things which may be necessary
or appropriate under such state securities or blue sky laws to enable
Contributing Party to consummate the public sale or other disposition
in such jurisdictions of such securities;
(iv) before filing any amendments or supplements to
such Resale Registration Statement or the Prospectus relating thereto,
furnish copies of all such documents proposed to be filed to the
Contributing Party, who shall be afforded a reasonable opportunity to
review and comment thereon; provided, however, that all such documents
shall be subject to the approval of the Contributing Party insofar as
they relate to information concerning the Contributing Party
(including, without limitation, the proposed method of distribution of
Contributing Party's securities);
(v) notify Contributing Party promptly (A) when such
Resale Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (B)
of any request by the SEC or any state securities authority for
amendments and supplements to such Resale Registration Statement and
the Prospectus relating thereto or for additional information, and (C)
of the happening of any event during the period such Resale
Registration Statement is effective which in the judgment of the
General Partner makes any statement made in such Resale Registration
Statement or such Prospectus untrue in any material respect or which
requires the making of any changes in such Resale Registration
Statement or such Prospectus in order to make the statements therein
not misleading;
(vi) cooperate with Contributing Party to facilitate
the timely preparation and delivery of certificates representing Shares
being sold, which certificates shall not bear any restrictive legends
provided the Shares evidenced thereby have been sold in a manner
permitted by the Prospectus relating to such Resale Registration
Statement;
(vii) upon the occurrence of any event contemplated
by clause (v)(C) above, promptly prepare and file a supplement or
post-effective amendment to such Resale Registration Statement or the
Prospectus relating thereto or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Shares, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein in light of the
circumstances under which they were made, not misleading; provided,
however, that the obligation to prepare and file any such supplement or
post-effective amendment shall be suspended if the General Partner,
relying upon advice of counsel, determines that disclosure of any
information required to be included therein would be adverse to its
interests, but such suspension (A) shall not
-8-
extend beyond sixty (60) days with respect to any such specified event
and (B) shall not occur more than twice during any period of twelve
(12) consecutive months; and
(viii) promptly notify each Contributing Party of,
and confirm in writing, (A) the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of
such Resale Registration Statement or the initiation of any proceedings
for that purpose, or (ii) if, between the effective date of any such
Resale Registration Statement and the sale of the Shares to which it
relates, the General Partner receives any notification with respect to
the suspension of the qualification of the Shares or initiation of any
proceeding for such purpose. The General Partner shall use its
reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of such a Registration Statement at the
earliest practicable time.
(e) The General Partner hereby agrees to indemnify and hold harmless
Contributing Party and each person, if any, who controls Contributing Party
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) from and against any and all losses, claims, damages, costs
and expenses (including reasonable attorneys' fees) ("Claims") to which
Contributing Party or such controlling person may become subject, under the
Securities Act or otherwise, caused by any untrue statement or alleged untrue
statement of a material fact contained in any Resale Registration Statement or
the Prospectus relating thereto or any amendment or supplement thereto, or
caused by any 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 shall reimburse such Contributing Party and each such
controlling person for any legal or other expenses reasonably incurred by such
Contributing Party in connection with investigating or defending any such loss
as such expenses are incurred; provided, however, that the General Partner shall
not be liable insofar as any such losses, claims, damages, costs and expenses
(including reasonable attorneys' fees) are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished in writing to the General Partner by any Contributing Party expressly
for use therein. Each Contributing Party agrees to indemnify and hold harmless
the General Partner and each person, if any, who controls the General Partner
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) from and against any and all Claims to which the General
Partner or such controlling person may become subject, under the Securities Act
or otherwise, caused by any untrue statement or omission or alleged untrue
statement or omission based upon such information furnished in writing to the
General Partner by such Contributing Party.
(f) Each Contributing Party agrees that, upon receipt of any notice
from the General Partner of the happening of any event of the kind described in
clause (d)(v)(C) above and without waiving any rights under clause (d)(vii)
above, such Contributing Party will forthwith discontinue disposition of
securities pursuant to any Resale Registration Statement until Contributing
Party's receipt of the copies of the supplemented or amended Prospectus
contemplated by clause (d)(vii) above.
(g) The General Partner shall bear all expenses relating to filing the
Issuance Registration Statement and each Resale Registration Statement
(collectively, the "Registration Statements") and keeping the Registration
Statements current, effective and available; provided,
-9-
however, that the General Partner shall not be responsible for any brokerage
fees or underwriting commissions due and payable in connection with the sale of
Shares.
(h) The General Partner shall use reasonable best efforts to cause all
Shares to be listed or otherwise eligible for full trading privileges on the
principal national securities exchange (currently the New York Stock Exchange)
on which shares of Common Stock are then listed on or before the date on which a
Registration Statement covering the Shares becomes effective or the Shares are
issued by the General Partner to a Contributing Party, whichever is later. The
General Partner will use reasonable best efforts to continue the listing or
trading privilege for all Shares on the exchange on which shares of Common Stock
are then listed. The General Partner will promptly notify the Contributing Party
of, and confirm in writing, the delisting of the Shares.
(i) Notwithstanding anything to the contrary contained herein, the
General Partner shall have no obligation to keep any Registration Statement
effective if the status of the General Partner (or its successor) as an Exchange
Act Reporting Company is terminated.
4.2 Reservation of Shares. At all times while the Redemption Rights are
outstanding, the General Partner shall reserve for issuance such number of
Shares as may be necessary to enable the General Partner to issue Shares in full
satisfaction of all Redemption Rights which are from time to time outstanding
(assuming that there are no limitations as to the ownership of such Shares under
the Certificate of Incorporation which relate to compliance with the REIT
Requirements, that all Series C Preferred Units have been converted into Common
Units and that the General Partner elected to pay the Share Purchase Price with
respect to all such Redemption Rights).
4.3 Fully Paid and Non-Assessable. All Shares which may be issued upon
exercise of the Redemption Rights shall be duly and validly issued and fully
paid and non-assessable.
5. Transfer and Similar Taxes. The General Partner shall pay any and
all documentary stamp or similar issue or transfer taxes payable in respect of
the issue or delivery of shares of Common Stock or other securities or property
pursuant hereto; provided, however, that the General Partner shall not be
required to pay any tax that may be payable in respect of any transfer involved
in the issue or delivery of shares of Common Stock or other securities or
property in a name other than that of the holder of the Common Units to be
exchanged, and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the General Partner the
amount of any such tax or established, to the reasonable satisfaction of the
General Partner, that such tax has been paid.
6. Anti-Dilution and Adjustment Provisions.
(a) The Conversion Factor shall be adjusted in the event that the
General Partner (i) declares or pays a dividend or distribution on its
outstanding Shares in Shares or makes a distribution to all holders of its
outstanding Shares in Shares, (ii) subdivides its outstanding Shares, or (iii)
combines its outstanding Shares into a smaller number of Shares. In such event,
the Conversion Factor shall be adjusted by multiplying the Conversion Factor by
a fraction, the numerator of which shall be the number of Shares issued and
outstanding on the record date for
-10-
such dividend, distribution, subdivision or combination (assuming for such
purposes that such dividend, distribution, subdivision or combination has
occurred as of such time) and the denominator of which shall be the actual
number of Shares (determined without the above assumption) issued and
outstanding on the record date for such dividend, distribution, subdivision or
combination. Any adjustment to the Conversion Factor pursuant to the immediately
preceding sentence shall become effective immediately after the effective date
of such event retroactive to the opening of business on the day next following
the record date, if any, for such event. In addition, the Conversion Factor
shall be adjusted in the event that the Partnership (i) declares or pays a
dividend or distribution on its outstanding Common Units in Common Units, (ii)
subdivides its outstanding Common Units, or (iii) combines its outstanding
Common Units into a smaller number of Common Units. In such event, the
Conversion Factor shall be adjusted by multiplying the Conversion Factor by a
fraction, the numerator of which shall be the actual number of Common Units
issued and outstanding on the record date for such dividend, distribution,
subdivision or combination (determined without the below assumption) and the
denominator of which shall be the number of Common Units issued and outstanding
on such record date (assuming for such purposes that such dividend,
distribution, subdivision or combination has occurred as of such time). Any
adjustment to the Conversion Factor pursuant to the immediately preceding
sentence shall become effective on the effective date of such event retroactive
to the record date, if any, for such event.
(b) If at any time the holders of Common Stock are entitled to any
right (a "Right") to subscribe pro rata for additional securities of the General
Partner, whether Common Stock or other classifications, or for any other
securities or interests that the Contributing Party would have been entitled to
subscribe for if, immediately prior to such grant, the Contributing Party had
exercised its Redemption Rights and received the Share Purchase Price in payment
thereof, in lieu of any adjustment under any other subsection of this Section 6
or other provision of this Agreement and except to the extent that provision
otherwise has been made for the Contributing Party to receive such Right or a
similar right in respect of the Common Units or adjustment otherwise has been
made in respect thereof, the Contributing Party also shall receive from the
General Partner, prior to or concurrent with the time such Right becomes
exercisable, the same Right that the Contributing Party would have been entitled
to if the Contributing Party had exercised its Redemption Rights in full and
received the Share Purchase Price in satisfaction thereof immediately prior to
the time holders of Common Stock became entitled to such Right.
(c) Upon the occurrence of a Major Transaction Event, the General
Partner shall cause effective provision to be made so that, upon full conversion
of the Series C Preferred Units of the Contributing Party into Common Units,
exercise of the Redemption Rights by the Contributing Party in respect thereof
and the election of the General Partner to pay the Purchase Price at any time
following such Major Transaction Event by means of the Share Purchase Price, the
Contributing Party shall have the right to acquire, in lieu of the Shares which
otherwise would have been issued to the Contributing Party, the kind and amount
of shares of stock and other securities and property (and the provisions
contained in Section 4.1 shall apply anew to the extent that such securities are
of a class of securities of the General Partner or its successor that are
registered under the Exchange Act) and interests as would be issued or payable
with respect to or in exchange for the number of Shares constituting the Share
Purchase Price as if all Series C Preferred Units of the Contributing Party had
been converted into Common Units, such Redemption Rights had been exercised and
the General Partner had satisfied the Redemption
-11-
Rights by delivery of the Share Purchase Price immediately before such Major
Transaction Event.
(d) The Partnership shall give written notice to the Contributing Party
of any Major Transaction Event promptly after such Major Transaction Event is
announced to the public.
(e) Notwithstanding anything to the contrary contained herein, the
adjustment provisions contained in this Agreement shall be applied so that there
is no duplication of adjustments made pursuant to any other document. The
provisions of this Section 6 shall apply to successive events that may occur
from time to time but only shall apply to a particular event if it occurs prior
to the exercise in full of the Redemption Rights or the liquidation of the
Partnership. Nothing contained herein shall prevent or otherwise limit the
liquidation of the Partnership pursuant to the Partnership Agreement, as amended
from time to time.
(f) Whenever the Conversion Factor is adjusted as herein provided, the
General Partner shall compute the adjusted Conversion Factor in accordance with
this Section 6 and shall prepare a certificate signed by the chief financial
officer of the General Partner setting forth the adjusted Conversion Factor and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed at the offices of the General Partner.
(g) Notwithstanding anything to the contrary contained herein (but
subject to the first sentence of Section 6(e) hereof), the General Partner and
the Partnership agree that they will apply the provisions of this Section 6, the
definition of Share Purchase Price and any related provisions as if the Common
Units were issued and outstanding as of the date hereof. Thus, for example, if
an event were to occur on December 31, 2002 that would adjust the number of
Shares into which the Common Units would be exchangeable had such Common Units
been outstanding as of such date, but the Common Units were not actually issued
until December 31, 2003, then such adjustment would be applied so that, upon
such issuance (but subject to further adjustment for subsequent events), the
Common Units would be immediately exchangeable for the number of Shares for
which the Common Units would have been exchangeable had such Common Units been
outstanding on December 31, 2002.
7. Miscellaneous Provisions.
7.1 Notices. All notices or other communications given pursuant to this
Agreement, including without limitation any Notice, shall be sent to the party
to whom or to which such notice is being sent, by certified or registered mail,
return receipt requested, commercial overnight delivery service, facsimile or
delivered by hand with receipt acknowledged in writing and otherwise as set
forth in this Section 7.1. All notices (a) shall be deemed given when received
or, if mailed as described above, after 5 Business Days or, if sent by
facsimile, upon receipt of confirmed answerback and (b) may be given either by a
party or by such party's attorneys. For purposes of this Section 7.1, the
addresses of the parties shall be, in the case of the Partnership and the
General Partner, 000 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, facsimile number
(000) 000-0000, Attention: Xxxxxxx Xxxxxxxx (with a copy to Xxxx, Xxxxxx &
Xxxxxxxxx, Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn:
Xxxxxxxx X. Xxxxxxxxx, facsimile number (000) 000-0000), and, in the case of the
Contributing Party, as set forth on the
-12-
records of the Partnership. The address of any party may be changed by a notice
in writing given in accordance with the provisions hereof.
7.2 Assignment. The rights of the Contributing Party hereunder
(including the Redemption Rights) shall automatically devolve upon any Person to
the extent that such Person holds Common Units or Series C Preferred Units, and
becomes a substituted partner with respect to such Common Units or Series C
Preferred Units, in accordance with the Partnership Agreement and delivers to
the Partnership a written instrument, in form reasonably satisfactory to the
Partnership, pursuant to which such Person agrees to be bound by the terms
hereof (but the rights of the Contributing Party hereunder are not otherwise
assignable). All references herein to Contributing Party shall be deemed to be
references to each assignee pursuant to this paragraph. Subject to the
provisions of Section 6, the General Partner may assign this Agreement in
connection with any Major Transaction Event without the consent of the
Contributing Party, provided that no such assignment shall relieve the General
Partner of its obligations under this Agreement.
7.3 Binding Effect. Except as otherwise set forth herein, this
Agreement shall be binding upon, and inure to the benefit of, the parties and
their successors and permitted assigns.
7.4 Amendments. The provisions of this Agreement may be amended only
with the written consent of the Partnership, the General Partner and the holders
of at least a majority of the issued and outstanding Common Units (assuming that
all of the issued and outstanding Series C Preferred Units were converted into
Common Units in accordance with the Partnership Agreement immediately prior to
the execution of such amendment).
7.5 Governing Law. This Agreement shall be governed by the laws of the
State of Delaware (without regard to its conflicts of law principles).
7.6 Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which shall constitute one document.
7.7 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes any
prior written or oral understandings and/or agreements among them with respect
thereto.
7.8 Pronouns; Headings; Etc. As used herein, all pronouns shall include
the masculine, feminine and neuter, and all terms shall include the singular and
plural thereof wherever the context and facts require such construction. The
headings herein are inserted for convenience of reference only and are to be
ignored in any construction of the provisions hereof. Any references in this
Agreement to a "Section" or "Exhibit" shall refer to a Section or Exhibit of
this Agreement unless otherwise specified.
7.9 Survival. The representations, warranties and covenants contained
herein or made pursuant hereto shall survive the execution and delivery of this
Agreement and the closing of any redemption or purchase and sale pursuant to an
exercise of Redemption Rights hereunder.
-13-
7.10 Further Assurances. Each of the parties shall hereafter execute
and deliver such other instruments and documents and do such further acts and
things as may be required or useful to carry out the purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
CONTRIBUTING PARTY:
JSG, LLC, a Delaware limited liability company
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxx, Managing Member
PARTNERSHIP:
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: General Growth Properties, Inc., a Delaware
corporation, its general partner
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx, Executive Vice
President
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxx, Executive Vice President
-15-
EXHIBIT A
Notice of Redemption
The undersigned hereby irrevocably (i) exercises its Redemption Rights
as to ___________ Common Units (the "Transferred Units") in GGP Limited
Partnership (the "Partnership") in accordance with the terms of that certain
Redemption Rights Agreement (Common Units), dated November 27, 2002 (the
"Agreement"), among the Partnership, General Growth Properties, Inc. (the
"General Partner"), and JSG, LLC, (ii) transfers and surrenders such Transferred
Units and all right, title and interest of the undersigned therein to the party,
which shall be either the Partnership or the General Partner, that shall
purchase or redeem such Transferred Units pursuant to the Agreement, and (iii)
directs that the Cash Purchase Price or Share Purchase Price payable upon
exercise of the Redemption Right be delivered to the address specified below
and, if the Share Purchase Price is to be delivered, the Shares shall be
registered or placed in the name(s) and at the address(es) specified below.
Attached hereto are the certificates, if any, representing the Transferred
Units.
The undersigned hereby represents, warrants and certifies that, as of
the date hereof and as of the closing of the purchase or redemption of the
Transferred Units pursuant to the exercise of Redemption Rights effected hereby,
(i) that the undersigned has good and marketable title to the Transferred Units,
free and clear of all Liens, (ii) that the undersigned has the full right, power
and authority to transfer and surrender the Transferred Units as provided herein
and such transfer and surrender has been authorized by all necessary action and
(iii) that the undersigned has obtained the consent or approval of all persons
or entities, if any, having the right to consent to or approve such transfer and
surrender.
Capitalized terms used but not defined herein shall have the meanings
set forth in the Agreement.
Dated: ____________________
[NAME OF PERSON]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
----------------------------------------
(Street Address)
----------------------------------------
(City, State, Zip Code)
Signature Guaranteed By:
----------------------------------------
If Shares are to be issued, issue to:
Please insert social security or identifying number:
-2-
