EXHIBIT 10.16
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF
GGPLP L.L.C.
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF
GGPLP L.L.C. (this "Second Amendment") is made and entered into on the 13th day
of May, 2002, by and among the undersigned parties.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, a Delaware limited liability company known as GGPLP L.L.C.
(the "Company") exists pursuant to the Delaware Limited Liability Company Act
and that certain Second Amended and Restated Operating Agreement dated April 17,
2002, as amended by that certain First Amendment thereto dated April 23, 2002
(the "Restated Agreement"), among GGP Limited Partnership, a Delaware limited
partnership, GGP American Properties Inc., a Delaware corporation, Caledonian
Holding Company, Inc., a Delaware corporation, GSEP 2000 Realty Corp., a
Delaware corporation, GS 2002 Realty Corp., a Delaware corporation, and General
Growth Properties, Inc., a Delaware corporation ("GGPI");
WHEREAS, concurrently herewith, DA Retail Investments, LLC, a Delaware
limited liability company ("DAI"), is contributing $5,000,000 to the capital of
the Company and, in exchange therefor, the Company is issuing to DAI Series C
Preferred Units (as defined in the Restated Agreement, as amended hereby); and
WHEREAS, the parties hereto, constituting a Majority-In-Interest of the
Common Units (as defined in the Restated Agreement) and DAI, desire to amend the
Restated Agreement to reflect such capital contribution and the establishment
and issuance of Series C Preferred Units and to set forth certain other
understandings.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the definitions assigned to such terms in the Restated Agreement, as
amended hereby.
2. AMENDMENT TO SECTION 1.1.
(a) Section 1.1 of the Restated Agreement is hereby amended by deleting
the last sentence of the definition of "Units" and inserting the following in
its place and stead:
"The number and designation of all Units held by each Member as of May
13, 2002 is set forth opposite such Member's name on Schedule A."
(b) Section 1.1 of the Restated Agreement is hereby amended by deleting
the definition of "Closing Price" and inserting the following in its place and
stead:
"`Closing Price' shall mean, with respect to any Common Shares
on any date, the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system if the Common Shares are
listed or admitted to trading on the New York Stock Exchange or, if the
Common Shares are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Common Shares are listed or
admitted to trading or, if the Common Shares are not listed or admitted
to trading on any national securities exchange, the last quoted price,
or if not so quoted, the average of the high bid and low asked prices
in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System or, if such
system is no longer in use, the principal other automated quotations
system that may then be in use or, if the Common Shares are not quoted
by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in
the Common Shares as such person is selected from time to time by the
Board of Directors of GGPI."
(c) Section 1.1 of the Restated Agreement is hereby amended by deleting
the definition of "Gross Asset Value" and inserting the following in its place
and stead:
"Gross Asset Value" shall mean, with respect to any asset of
the Company, such asset's adjusted basis for Federal income tax
purposes, except as follows:
(a) the initial Gross Asset Value of (i) the assets
contributed by each Member to the Company prior to the date hereof is
the gross fair market value of such contributed assets as indicated in
the books and records of the Company as of the date hereof, and (ii)
any asset hereafter contributed by a Member (including the Managing
Member), other than money, is the gross fair market value thereof as
reasonably determined by the Managing Member using such reasonable
method of valuation as the Managing Member may adopt;
(b) if the Managing Member reasonably determines that an
adjustment is necessary or appropriate to reflect the relative economic
interests of the Members, the Gross Asset Values of all Company assets
shall be adjusted to equal their respective gross fair market values,
as reasonably determined by the Managing Member, as of the following
times:
(i) a Capital Contribution (other than a de minimis
Capital Contribution) to the Company by a new or existing
Member as consideration for Units; and
(ii) the distribution by the Company to a Member of
more than a de minimis amount of Company property as
consideration for the redemption of Units; and
2
(c) the Gross Asset Values of all Company assets shall
be adjusted to equal their respective gross fair market values, as
reasonably determined by the Managing Member, upon the liquidation of
the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations;
(d) the Gross Asset Values of Company assets distributed
to any Member shall be the gross fair market values of such assets
(taking Section 7701(g) of the Code into account) as reasonably
determined by the Managing Member as of the date of distribution; and
(e) the Gross Asset Values of Company assets shall be
increased (or decreased) to reflect any adjustments to the adjusted
basis of such assets pursuant to Sections 734(b) or 743(b) of the Code,
but only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m)
of the Regulations (See Exhibit A); provided, however, that Gross Asset
Values shall not be adjusted pursuant to this paragraph to the extent
that the Managing Member reasonably determines that an adjustment
pursuant to paragraph (b) above is necessary or appropriate in
connection with a transaction that would otherwise result in an
adjustment pursuant to this paragraph (e).
At all times, Gross Asset Values shall be adjusted by any Depreciation
taken into account with respect to the Company's assets for purposes of
computing Net Income and Net Loss. Any adjustment to the Gross Asset
Values of Company property shall require an adjustment to the Members'
Capital Accounts; as for the manner in which such adjustments are
allocated to the Capital Accounts, see paragraph (c) of the definition
of Net Income and Net Loss in the case of adjustment by Depreciation,
and paragraph (e) of said definition in all other cases.
(d) Section 1.1 of the Restated Agreement is hereby
amended by inserting the following new defined terms in appropriate
alphabetical order in such section:
"DAI" shall mean DA Retail Investments, LLC, a Delaware
limited liability company.
"DAI Contribution Obligation" shall mean the obligation of DAI
to make a Capital Contribution pursuant to Section 7.8 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended."
"Exculpatory Liabilities" shall mean Company liabilities with
respect to which both of the following conditions are met: (i) the
creditor's right to repayment is not limited to specified assets of the
Company (i.e., the liability constitutes a recourse obligation of the
Company), and (ii) no Member or related person bears the economic risk
of loss for such liability (as determined pursuant to Section 1.752-2
of the Regulations, except that for this purpose the DAI Contribution
Obligation shall be disregarded).
3
"Gross Asset Value Available to Pay Recourse Liabilities and
Exculpatory Liabilities" shall be determined upon liquidation of the
Company and shall mean the excess of (i) the aggregate Gross Asset
Value of all Company assets (not including the DAI Contribution
Obligation or any similar capital contribution obligation or capital
account restoration obligation of any other Member), except that for
this purpose Code Section 7701(g) shall not be applied in determining
the fair market value of an asset solely because it is subject to or
available to satisfy one or more Exculpatory Liabilities, over (ii) the
aggregate amount of all Nonrecourse Liabilities other than Exculpatory
Liabilities.
"Recourse Liabilities" shall mean Company liabilities with
respect to which a Member or related person bears the economic risk of
loss (as determined pursuant to Section 1.752-2 of the Regulations,
except that for this purpose the DAI Contribution Obligation shall be
disregarded).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
3. NEW SECTION 4.8. Article IV of the Restated Agreement is hereby
amended by adding the following new section at the end thereof:
"4.8 ESTABLISHMENT OF SERIES C PREFERRED UNITS. A new series
of Preferred Units designated as the "8.25% Series C Cumulative
Preferred Units" (the "Series C Preferred Units") is hereby established
and shall have such rights, preferences, limitations and qualifications
as are described on Schedule C, attached hereto and by this reference
made a part hereof (in addition to the rights, preferences, limitations
and qualifications contained elsewhere in this Agreement, to the extent
applicable). The maximum number of Series C Preferred Units which may
be issued by the Company from time to time shall be 20,000."
4. ISSUANCE OF SERIES C PREFERRED UNITS. Concurrently herewith, the
Company is issuing to DAI 20,000 Series C Preferred Units in exchange for a
Capital Contribution by DAI of $5,000,000. DAI is hereby admitted as a Member in
respect of the Series C Preferred Units issued to it, and DAI hereby agrees to
be bound by the provisions of the Restated Agreement, as the same is amended
hereby and as the same may be amended from time to time, with respect to such
Series C Preferred Units. Series C Preferred Units shall not have any relative,
participating, optional or other special rights and powers other than as set
forth in the Restated Agreement, as the same is amended hereby. Series C
Preferred Units that are redeemed or purchased by the Company shall be cancelled
and may not be reissued.
5. AMENDMENT TO SECTION 7. Section 7 of the Restated Agreement is
hereby amended by adding the following new Section 7.8 at the end thereof:
"7.8 DAI CONTRIBUTION OBLIGATION. Notwithstanding any other
provision of this Agreement (including Schedule C to this Agreement):
(a) Upon liquidation of the Company, in the event that the
Gross Asset Value Available to Pay Recourse Liabilities and Exculpatory
Liabilities is less than One Hundred Million Dollars ($100,000,000),
DAI shall make a Capital
4
Contribution to the Company of cash in immediately available funds
equal to the least of (i) One Hundred Million Dollars ($100,000,000),
(ii) the amount by which One Hundred Million Dollars ($100,000,000)
exceeds the Gross Asset Value Available to Pay Recourse Liabilities and
Exculpatory Liabilities and (iii) the aggregate amount of Recourse
Liabilities and Exculpatory Liabilities outstanding immediately prior
to the liquidation of the Company. Such amount shall be used to pay
Recourse Liabilities and/or Exculpatory Liabilities or shall be
distributed to Members other than DAI in accordance with their positive
Capital Account balances.
(b) DAI shall make any Capital Contribution required to be
made by it pursuant to this Section 7.8 no later than the later to
occur of (i) the last day of the taxable year of the Company in which
such liquidation occurs or (ii) 90 days after the date of such
liquidation.
(c) Any Capital Contribution made by DAI pursuant to this
Section 7.8 and the associated Capital Account credit shall be taken
into account in allocating Net Income and Net Loss and other items of
income, gain, loss and deduction for the taxable year of liquidation.
(d) DAI shall not be subrogated to the rights of any creditor
or other person receiving the proceeds of the Capital Contribution made
by DAI pursuant to this Section 7.8 against the Managing Member, the
Company, another Member or any person. DAI hereby waives any right to
reimbursement, contribution or similar right to which DAI might
otherwise be entitled as a result of the performance of its obligations
under this Section 7.8.
(e) Section 4.4 and Section 4.6 hereof shall not apply with
respect to DAI's obligations pursuant to this Section 7.8.
(f) The parties intend that DAI shall bear the economic risk
of loss within the meaning of Section 1.752-2(a) of the Regulations
with respect to an amount of Exculpatory Liabilities and/or Recourse
Liabilities equal to the lesser of One Hundred Million Dollars
($100,000,000) and the aggregate amount of Recourse Liabilities and
Exculpatory Liabilities, and this Section 7.8 and other relevant
provisions of this Agreement shall be interpreted and applied in a
manner consistent therewith.
(g) Notwithstanding any other provision of this Agreement, at
any time on or after June 1, 2005, DAI may terminate the DAI
Contribution Obligation by providing twelve (12) months' prior written
notice to the Company, provided however that the DAI Contribution
Obligation shall not terminate if during the twelve (12) month period
following such notice there has been:
(i) An entry of a decree or order for relief in respect
of the Company by a court having jurisdiction over a substantial part
of the Company's assets, or the appointment of a receiver, liquidator,
assignee,
5
custodian, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the
winding up or liquidation of the Company's affairs, in an involuntary
case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law; or
(ii) The commencement against the Company of an
involuntary case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law; or
(iii) The commencement by the Company of a voluntary
case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or the consent by it to the entry of
an order for relief in an involuntary case under any such law or the
consent by it to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by it of a general assignment for the benefit
of creditors, or the failure of Company generally to pay its debts as
such debts become due or the taking of any action in furtherance of any
of the foregoing;
provided that, after the passage of such 12 months, DAI shall cease to
be liable for the DAI Contribution Obligation, at the first time, if
any, that the appointment, case or proceeding referred to in Section
7.8(g)(i) through (iii) above has terminated.
(h) As a result of the transfer of all or a portion of the
Series C Preferred Units to a Permitted DAI Transferee pursuant to
Section 7 of Schedule C, the transferor shall continue to be obligated
for the entire amount of the DAI Contribution Obligation except to the
extent that such Permitted DAI Transferee agrees to assume all or a
portion of such transferor's obligation under the DAI Contribution
Obligation. In the event of such a transfer to and assumption by the
Permitted DAI Transferee, (1) the transferor and the Permitted DAI
Transferee assuming the obligation under the DAI Contribution
Obligation shall notify the Company that the Permitted DAI Transferee
has assumed all or a portion of the DAI Contribution Obligation in
connection with such transfer, and (2) this Agreement shall be amended
to reflect such Permitted DAI Transferee's assumption of all or a
portion of the DAI Contribution Obligation. Except to the extent that
the Permitted DAI Transferee assumes all or a portion of the obligation
under the DAI Contribution Obligation in accordance with this Section
7.8(h), the transferor shall not be relieved of such obligation and
shall continue to be obligated under the DAI Contribution Obligation
notwithstanding the transfer and to the same extent as if the transfer
had not occurred. Following the transfer of Series C Preferred Units to
GGPI or the Managing Member pursuant to Section 6 of Schedule C, the
transferor shall continue to be obligated for the entire amount
6
of the DAI Contribution Obligation in accordance with its terms and
neither GGPI nor the Managing Member shall have any liability
therefor."
6. NEW SCHEDULE A. Schedule A to the Restated Agreement, identifying
the Members and the number and type hereby inserted in its place and stead.
7. NEW SCHEDULE C. Schedule C in the form attached hereto, fixing the
powers, preferences, rights, qualifications, limitations and restrictions of the
Series C Preferred Units, is hereby added to the Restated Agreement and inserted
after Schedule B thereto.
8. OTHER PROVISIONS UNAFFECTED. Except as expressly amended hereby, the
Restated Agreement shall remain in full force and effect in accordance with its
terms.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, each of the parties hereto has executed this Second
Amendment (and GGPI has executed this Second Amendment solely for the purpose of
binding itself under Section 6 of Schedule C to the Restated Agreement, as
amended hereby) on the day and year first above written.
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation, its general partner
By: /s/ Bernard Freibaum
---------------------------------------
Name: Bernard Freibaum
----------------------------------
Title: Executive Vice President
----------------------------------
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
Facsimile No.: 312-960-5463
DA RETAIL INVESTMENTS, LLC
By: SAMUEL ZELL/ROBERT LURIE
GENERAL PARTNERS, INC.
a Delaware corporation,
its managing member
By: /s/ Philip Tinkler
---------------------------------------
Name: Philip Tinkler
----------------------------------
Title: Treasurer
----------------------------------
c/o Equity Group Investment, LLC
Two North Riverside Plaza, Suite 600
Chicago, Illinois 60606
Attention: Donald J. Liebentritt
Facsimile No.: 312-575-7024
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By: /s/ Bernard Freibaum
-------------------------------------------
Name: Bernard Freibaum
--------------------------------------
Title: Executive Vice President
--------------------------------------
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
Facsimile No.: 312-960-5463
8
SCHEDULE A
MEMBERS
Member Common Units Preferred Units
------ ------------ ---------------
GGP Limited Partnership 911,000 0
Caledonian Holding Company, Inc. 29,600 0
GGP American Properties Inc. 58,500 0
GSEP 2000 Realty Corp. 0 700,000 Series A Preferred Units
GSEP 2002 Realty Corp. 0 240,000 Series B Preferred Units
DA Retail Investments, LLC 0 20,000 Series C Preferred Units
A-1
SCHEDULE C
TO THE
SECOND AMENDED AND RESTATED OPERATING AGREEMENT
OF
GGPLP L.L.C.
DESIGNATION, PREFERENCES AND RIGHTS OF SERIES C PREFERRED UNITS
1. DESIGNATION AND NUMBER; ETC. The Series C Preferred Units have been
established and shall have such rights, preferences, limitations and
qualifications as are described herein (in addition to the rights, preferences,
limitations and qualifications contained in the Agreement to the extent
applicable). The authorized number of Series C Preferred Units shall be 20,000.
Notwithstanding anything to the contrary contained herein, in the event of a
conflict between the provisions of this Schedule C and any other provision of
the Agreement, the provisions of this Schedule C shall control. Series C
Preferred Units shall not have any relative, participating, optional or other
special rights and powers other than as set forth herein.
2. RANK OF THE SERIES C PREFERRED UNITS. The Series C Preferred Units
shall, with respect to distribution rights and rights upon liquidation,
dissolution or winding up of the Company, rank as follows:
(a) senior to all classes or series of Common Units and all series of
Preferred Units that are not referred to in Section 2(b) or (c) of this Schedule
C (the Common Units and the Preferred Units ranking junior to the Series C
Preferred Units with respect to distribution rights and rights upon liquidation,
dissolution and winding up, collectively, "Series C Junior Units");
(b) on parity with the Series A Preferred Units, the Series B Preferred
Units and each other series of Preferred Units that is hereafter created and
that provides by its express terms that it ranks on parity with the Series C
Preferred Units as to distribution rights and rights upon liquidation,
dissolution and winding-up of the Company (the "Series C Parity Units"); and
(c) junior to any class or series of Preferred Units that is hereafter
established, that provides by its express terms that it ranks senior to the
Series C Preferred Units and that is approved in accordance with the provisions
of Section 3 of this Schedule C.
3. VOTING. The Company shall not, without the affirmative vote or consent
of the holders of at least fifty-one percent (51%) of the Series C Preferred
Units outstanding at such time, (a) reclassify any Common Units into Preferred
Units ranking senior to or on parity with the Series C Preferred Units with
respect to the payment of distributions or distribution of assets upon
liquidation, dissolution or winding-up of the Company, (b) issue additional
Series C Preferred Units or (c) amend, alter or repeal this Section 3 or any
other provisions of this Schedule C or the Agreement, whether by merger,
consolidation or otherwise (a "Series C Event"), so as to negate the provisions
of clause (a) or (b) of this paragraph or materially and adversely affect any
special right, preference, privilege or voting power of the holders of the
Series C Preferred Units. Notwithstanding anything to the contrary contained
herein, each of the following shall be deemed not to materially and adversely
affect such rights, preferences, privileges or voting power and shall not
require the vote or consent of the holders of the Series C
C-1
Preferred Units: (A) the occurrence of any of the Series C Events set forth in
clause (c) of this paragraph so long as Series C Preferred Units remain
outstanding with the terms thereof materially unchanged (taking into account
that, upon the occurrence of such Series C Event, the Company may not be the
surviving entity) and the surviving entity is a Qualified Entity, (B) the
authorization or creation of, or the increase in the authorized or issued amount
of, the Common Units or any other series of Preferred Units, whether ranking
senior or junior to or on parity with the Series C Preferred Units (and any
amendments to the Agreement to effect such increase, creation or issuance),
provided that no such action alters the parity of the Series C Preferred Units
with the Series A Preferred Units and the Series B Preferred Units, and (C) the
liquidation, dissolution and winding-up of the Company. In addition, the Company
shall not, without the affirmative vote or consent of the holders of at least
fifty-one percent (51%) of the Series A Preferred Units, Series B Preferred
Units and Series C Preferred Units outstanding at such time (voting together as
a single class), authorize or create, or increase the authorized or issued
amount of, any class or series of Units ranking senior to the Series C Preferred
Units with respect to payments of distributions or rights upon liquidation,
dissolution or winding up of the Company (but the provisions of this sentence
only shall apply with respect to any such authorization, creation or increase if
there are Series A Preferred Units and/or Series B Preferred Units outstanding
at the time of such authorization, creation or issuance).
For purposes of the provisions of this Section 3, each Series C
Preferred Unit (and for purposes of the last sentence of the immediately
preceding paragraph, the Series A Preferred Units and Series B Preferred Units)
shall have one (1) vote.
Notwithstanding anything to the contrary contained herein, the
foregoing voting provisions shall not apply if, prior to the time when the act
with respect to which such vote would otherwise be required shall be effected,
all outstanding Series C Preferred Units shall have been exchanged or redeemed.
Except as provided herein, the holders of Series C Preferred Units
shall have no voting or consent rights or other rights to participate in the
management of the Company or to receive notices of meetings.
4. DISTRIBUTIONS.
(a) Payment of Distributions. Each holder of Series C Preferred Units will
be entitled to receive, when, as and if declared by the Managing Member, out of
Net Operating Cash Flow and subject to the right to payment of the holders of
Preferred Units ranking senior to or on parity with the Series C Preferred
Units, cumulative preferential cash distributions per Series C Preferred Unit at
the rate per annum of 8.25% of the $250 base liquidation preference thereof (or
$5.15625 per quarter) (the "Series C Preferred Unit Distribution"). Series C
Preferred Unit Distributions with respect to any Series C Preferred Units shall
be cumulative, shall accrue from the date of the issuance of such Series C
Preferred Units and will be payable (i) quarterly when, as and if authorized and
declared by the Managing Member, in arrears, on the 15th day of January, April,
July and October of each year and (ii) in the event of an exchange or redemption
of Series C Preferred Units, on the exchange or redemption date, as applicable
(each a "Series C Preferred Unit Distribution Payment Date"), commencing on the
first of such payment dates to occur following their original date of issuance.
The amount of distribution per Series C
C-2
Preferred Unit accruing in each full quarterly distribution period shall be
computed by dividing the annual distribution rate by four. The amount of
distributions payable for the initial distribution period or any other period
shorter or longer than a full quarterly distribution period on the Series C
Preferred Units will be computed on the basis of twelve 30-day months and a
360-day year and the actual number of days elapsed in such a thirty (30) day
month. If any Series C Preferred Unit Distribution Payment Date is not a
Business Day, then payment of the Series C Preferred Unit Distribution to be
made on such date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (without any deduction),
in each case with the same force and effect as if made on such date. Series C
Preferred Unit Distributions will be made to the holders of Series C Preferred
Units of record on the relevant record dates, which will be fifteen (15) days
prior to the relevant Series C Preferred Unit Distribution Payment Date.
(b) Distributions Cumulative. Notwithstanding the foregoing, Series C
Preferred Unit Distributions will accrue whether or not the terms and provisions
of the Agreement or any other agreement of the Company at any time prohibit the
current payment of distributions, whether or not the Company has revenues,
whether or not there are funds legally available for the payment of such
distributions and whether or not such distributions are authorized. Accrued but
unpaid Series C Preferred Unit Distributions will accumulate as of the Series C
Preferred Unit Distribution Payment Date on which they first become payable. Any
accrued but unpaid Series C Preferred Unit Distributions that are not paid on or
prior to the date that they first become payable are hereinafter referred to as
"Series C Accumulated Preferred Unit Distributions." No interest or sum of money
in lieu of interest will be payable in respect of any Series C Accumulated
Preferred Unit Distributions. Series C Accumulated Preferred Unit Distributions
may be declared and paid at any time, without reference to any regular Series C
Preferred Unit Distribution Payment Date.
(c) Priority as to Distributions.
(i) So long as any Series C Preferred Units are outstanding, no
distribution of cash or other property shall be authorized, declared, paid
or set apart for payment on or with respect to any Series C Parity Units,
nor shall any cash or other property be set aside for or applied to the
purchase, redemption or other acquisition for consideration of any Series C
Parity Units, unless, in each case, all Series C Accumulated Preferred Unit
Distributions have been paid in full (or have been declared and a sum
sufficient for such payment has been set aside therefor) or when Series C
Accumulated Preferred Unit Distributions are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all
distributions declared upon Series C Preferred Units and all distributions
declared upon any other series or class or classes of Series C Parity Units
shall be declared ratably in proportion to the respective amounts of
distributions accumulated and unpaid on the Series C Preferred Units and
such Series C Parity Units.
(ii) So long as any Series C Preferred Units are outstanding, no
distribution of cash or other property (other than distributions paid
solely in Series C Junior Units or options, warrants or other rights to
subscribe for or purchase Series C Junior Units) shall
C-3
be authorized, declared, paid or set apart for payment on or with respect
to any class or series of Series C Junior Units nor shall any cash or other
property be set aside for or applied to the purchase, redemption or other
acquisition for consideration of any Series C Junior Units (other than
consideration paid solely in Series C Junior Units or options, warrants or
other rights to subscribe for or purchase Series C Junior Units) unless, in
each case, all Series C Accumulated Preferred Unit Distributions have been
paid in full or have been declared and a sum sufficient for payment thereof
has been set aside therefor.
(iii) So long as there are Series C Accumulated Preferred Unit
Distributions (and a sum sufficient for full payment of Series C
Accumulated Preferred Unit Distributions is not so set apart), all future
Series C Preferred Unit Distributions shall be authorized and declared so
that the amount of Series C Preferred Unit Distributions per Series C
Preferred Unit shall in all cases bear to each other the same ratio that
Series C Accumulated Preferred Unit Distributions per Series C Preferred
Unit bear to each other.
(iv) Notwithstanding anything to the contrary set forth herein,
distributions on Units held by the Managing Member ranking junior to or on
parity with the Series C Preferred Units may be made, without preserving
the priority of distributions described in Sections 4(c)(i) and (ii) of
this Schedule C, but only to the extent such distributions are required to
preserve the REIT status of GGPI.
(d) No Further Rights. Except as provided in Section 5 hereof, holders of
Series C Preferred Units shall not be entitled to any distributions, whether
payable in cash, other property or otherwise, in excess of the Series C
Preferred Unit Distributions (and any Series C Accumulated Preferred Unit
Distributions) described herein.
5. LIQUIDATION PREFERENCE.
(a) Payment to Holders of Series C Preferred Units. In the event of any
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, and subject to the right to payment of holders of Preferred Units
ranking senior to or on parity with the Series C Preferred Units, before any
payment or distribution of the assets of the Company shall be made to or set
apart for the holders of Series C Junior Units, each holder of the Series C
Preferred Units shall be entitled to receive an amount equal to such holder's
Capital Account in respect of its Series C Preferred Units, but the holders of
Series C Preferred Units shall not be entitled to any further payment in respect
of their Series C Preferred Units. If, upon any such liquidation, dissolution or
winding up of the Company, the assets of the Company, or proceeds thereof,
distributable to the holders of Series C Preferred Units shall be insufficient
to pay in full the preferential amount aforesaid and liquidating payments on any
other Series C Parity Units, then such assets, or the proceeds thereof, shall be
distributed among the holders of the Series C Preferred Units and the holders of
any such other Series C Parity Units ratably in accordance with the respective
amounts that would be payable on such Series C Preferred Units and any such
other Series C Parity Units if all amounts payable thereon were paid in full.
For the purposes of this Section 5, none of a consolidation or merger of the
Company with or into one or more entities, a merger of an entity with or into
the Company, a statutory share exchange by the Company or a sale, lease or
conveyance of all or substantially all of the Company's assets shall
C-4
be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Company.
(b) Payments to Holders of Series C Junior Units. Subject to the rights of
the holders of Series C Parity Units, after payment shall have been made in full
to the holders of the Series C Preferred Units as provided in this Section 5,
any series or class or classes of Series C Junior Units shall, subject to any
respective terms and provisions applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the holders of the Series C
Preferred Units shall not be entitled to share therein.
6. EXCHANGE RIGHTS.
(a) Right to Exchange.
(i) Subject to the other terms and conditions of this Section 6,
Series C Preferred Units will be exchangeable in whole but not in part with
GGPI at any time on or after June 1, 2012, at the option of the holders of
at least fifty-one percent (51%) of all outstanding Series C Preferred
Units, for authorized but previously unissued Common Shares (and in the
event such option is exercised, such exercise and the Series C Exchange
Notice (as defined below) given in connection therewith shall be deemed to
apply to all issued and outstanding Series C Preferred Units and the
holders thereof). Each holder of Series C Preferred Units will be entitled
to receive for each Series C Preferred Unit held by it a number of Common
Shares equal to the quotient of the Capital Account relating to such Series
C Preferred Unit (adjusted and booked up or down to reflect fair market
value of Company assets through the exchange closing date) (the amount of
such Capital Account, the "Series C Exchange Price") divided by the Current
Per Share Market Price as of the Trading Day immediately preceding the
exchange closing date. This exchange right is only exercisable if, at the
time of exercise, the fair market value of the Company's assets exceeds the
Company's liabilities (and any preferred security claims senior to the
Series C Preferred Units) by an amount at least equal to twice the sum of
(1) the aggregate Capital Accounts of all holders of Series C Preferred
Units plus (2) the aggregate Capital Accounts of all holders of Series C
Parity Units.
(ii) Notwithstanding anything to the contrary set forth in Section
6(a)(i) of this Schedule C, if a Series C Exchange Notice has been
delivered to the Managing Member and GGPI, then the Managing Member or GGPI
may at its option, within ten (10) Business Days after receipt of the
Series C Exchange Notice, elect to purchase or cause the Company to redeem
all or a portion of the outstanding Series C Preferred Units for cash at
the Series C Exchange Price per Series C Preferred Unit. If such election
by GGPI is made with respect to fewer than all of the outstanding Series C
Preferred Units, the number of Series C Preferred Units held by each holder
of Series C Preferred Units to be redeemed or purchased shall equal such
holder's pro rata share (based on the percentage of the aggregate number of
outstanding Series C Preferred Units that the total number of Series C
Preferred Units held by such holder of Series C Preferred Units represents)
of the aggregate number of Series C Preferred Units being redeemed or
purchased. An election by the Managing Member or GGPI under this Section
shall be
C-5
effected by delivering notice thereof to the holders identified in the
Series C Exchange Notice.
(iii) If an exchange of all Series C Preferred Units pursuant to
Section 6(a)(i) of this Schedule C would violate the provisions on
ownership limitation of GGPI set forth in its Charter and such ownership
limitation is not waived by GGPI, each holder of Series C Preferred Units
shall be entitled to exchange the maximum number of Series C Preferred
Units which would comply with the provisions on the ownership limitation of
GGPI, and any Series C Preferred Units not so exchanged shall be purchased
by GGPI or redeemed by the Company for cash in an amount determined in the
manner set forth in subsection (ii) of this Section 6(a).
(iv) If an exchange of all Series C Preferred Units pursuant to
Section 6(a)(i) of this Schedule C is prohibited by virtue of the holder of
the Series C Preferred Units being unable to make such customary
representations and warranties as may be reasonably necessary for the
Managing Member or GGPI to establish that the issuance of Common Shares
pursuant to the exchange shall not be required to be registered under the
Securities Act or any applicable state securities laws pursuant to Section
6(b)(i) below, any Series C Preferred Units not so exchanged shall be
purchased by GGPI or redeemed by the Company for cash in an amount
determined in the manner set forth in subsection (ii) of this Section 6(a).
(b) Procedure for Exchange and/or Redemption of Series C Preferred Units.
(i) The exchange right only may be exercised pursuant to a written
notice of exchange (the "Series C Exchange Notice") delivered to the
Managing Member and GGPI by holders of Series C Preferred Units owning at
least fifty-one percent (51%) of the outstanding Series C Preferred Units
by fax and certified mail postage prepaid. The closing of the exchange,
purchase and/or redemption pursuant to this Section 6 shall occur within
fifteen (15) Business Days following the giving of the Series C Exchange
Notice. At the closing, the exchanging holder(s) shall deliver such
instruments of transfer and other documents as GGPI or the Managing Member
may reasonably request, and GGPI and/or the Company shall deliver to the
exchanging holder(s) certificates representing the Common Shares and/or the
cash redemption and/or purchase price. Notwithstanding anything to the
contrary contained herein, any and all Series C Preferred Units to be
exchanged for Common Shares pursuant to this Section shall be so exchanged
in a single transaction at one time. As a condition to the exercise of the
rights contained in this Section 6, each holder of Series C Preferred Units
shall make such customary representations and warranties as may be
reasonably necessary for the Managing Member or GGPI to establish that the
issuance of Common Shares pursuant to the exchange shall not be required to
be registered under the Securities Act or any applicable state securities
laws, including without limitation representations and warranties that such
holder is an accredited investor as such term is defined in Rule 501 of
Regulation D promulgated pursuant to the Securities Act and that such
holder is acquiring such Common Shares for investment, solely for its own
account and not with a view to or for the resale or distribution thereof
(other than pursuant to the Registration Statement, as defined below);
provided, however, that in the event a holder is unable to make such
representations, the
C-6
condition shall be deemed satisfied with respect to such holder by virtue
of Section 6(a)(iv). Any Common Shares issued pursuant to this Section to a
holder of Series C Preferred Units shall be delivered as shares which are
duly authorized, validly issued, fully paid and nonassessable, free of any
pledge, lien, encumbrance or restriction other than those provided in the
Charter or the by-laws of GGPI, the Securities Act or relevant state
securities or blue sky laws or created by, through or under such holder,
and any Series C Preferred Units as to which the exchange right has been
exercised shall be free of any pledge, lien, encumbrance or restriction
other than those provided in the Agreement, the Securities Act and relevant
state securities or blue sky laws (and the parties shall make
representations and warranties to the other to such effect). Subject to the
provisions of Section 6(c) of this Schedule C, the certificates
representing the Common Shares issued upon exchange of the Series C
Preferred Units shall, in addition to any legend required by the Charter,
contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR (B) IF THE CORPORATION HAS BEEN FURNISHED WITH A
SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER OF THE SHARES
REPRESENTED HEREBY, OR OTHER EVIDENCE SATISFACTORY TO THE
CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS
OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS THEREUNDER.
(ii) In the event of an exchange of Series C Preferred Units, an
amount equal to the Series C Accumulated Preferred Unit Distributions to
the date of exchange on any Series C Preferred Units tendered for exchange
shall continue to accrue on such Series C Preferred Units, which remain
outstanding following such exchange, with the Managing Member as the holder
of such Series C Preferred Units (GGPI having contributed the Series C
Preferred Units to the Managing Member). Fractional Common Shares are not
to be issued upon exchange but, in lieu thereof, the Managing Member will
pay a cash adjustment based upon the Current Per Share Market Price as of
the exchange closing date.
(iii) During the thirty day period ending on the closing of any
exchange, purchase and/or redemption pursuant to this Section 6, the
holders of Series C Preferred Units shall not, directly or indirectly, buy
or sell (including without limitation short-sell) any Common Shares,
whether in the open market or in a negotiated transaction.
(c) Registration of Common Shares.
C-7
(i) As soon as practicable following the issuance of Common Shares
pursuant to this Section 6 (but, subject to the provisions of the last
sentence of Section 6(c)(ii) of this Schedule C, in no event more than 90
days following such issuance), GGPI shall file a Registration Statement on
Form S-3 or other appropriate registration form (the "Registration
Statement") with the SEC covering the resale by the initial holders of such
Common Shares (the "Initial Holders") and shall use its reasonable best
efforts to cause the Registration Statement to become effective as soon as
practicable thereafter. Following the effective date of the Registration
Statement and until the Common Shares covered by the Registration Statement
have been sold or are eligible for resale under Rule 144(k) promulgated
under the Securities Act, GGPI shall keep the Registration Statement
current, effective and available for the resale by the Initial Holders of
the Common Shares delivered to them pursuant to this Section 6. GGPI shall
bear all expenses relating to filing such Registration Statement and
keeping such Registration Statement current, effective and available;
provided, however, that GGPI shall not be responsible for any brokerage
fees or underwriting commissions due and payable by any holder of such
Common Shares.
(ii) During the time period when the Registration Statement is
required to be current, effective and available under Section 6(c)(i) of
this Schedule C, GGPI also shall:
(1) prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus constituting a part
thereof, as amended or supplemented (the "Prospectus"), as may be
necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the sale of
the Common Shares covered by such Registration Statement whenever any
Initial Holder 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 under Section 6(c)(i) of this
Schedule C;
(2) furnish to each Initial Holder, without charge, such number
of authorized copies of the Prospectus, and any amendments or
supplements to the Prospectus, in conformity with the requirements of
the Securities Act, and such other documents as any Initial Holder may
reasonably request in order to facilitate the public sale or other
disposition of the Common Shares owned by the Initial Holders.
(3) register or qualify the securities covered by the
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 the
Initial Holders to consummate the public sale or other disposition in
such jurisdictions of such securities;
(4) before filing any amendments or supplements to the
Registration Statement or the Prospectus, furnish copies of all such
documents proposed to be filed to the Initial Holders who shall be
afforded a reasonable
C-8
opportunity to review and comment thereon; provided, however, that all
such documents shall be subject to the approval of the Initial Holders
insofar as they relate to information concerning the Initial Holders
(including, without limitation, the proposed method of distribution of
any Initial Holder's securities);
(5) notify the Initial Holders promptly (A) when any such
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 Registration Statement and the
Prospectus or for additional information, (C) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of any such Registration Statement or the initiation of
any proceedings for the purpose, (D) if, between the effective date of
any such Registration Statement and the sale of the Common Shares to
which it relates, GGPI receives any notification with respect to the
suspension of the qualification of the Common Shares or initiation of
any proceeding for such purpose, and (E) of the happening of any event
during the period such Registration Statement is effective which in
the judgment of GGPI makes any statement made in the Registration
Statement or the Prospectus untrue in any material respect or which
requires the making of any changes in the Registration Statement or
the Prospectus in order to make the statements therein not misleading;
(6) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest practicable time;
(7) cooperate with each Initial Holder to facilitate the timely
preparation and delivery of certificates representing Common Shares
being sold, which certificates shall not bear any restrictive legends,
provided the Common Shares evidenced thereby have been sold in a
manner permitted by the Prospectus; and
(8) upon the occurrence of any event contemplated by Section
6(c)(ii)(5)(E) hereof, promptly prepare and file a supplement or
post-effective amendment to the Registration Statement or the
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Common Shares, the 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.
Notwithstanding anything to the contrary contained herein, the obligation to
prepare and file the Registration Statement or any supplement or post-effective
amendment thereto and any other obligations of GGPI hereunder shall be suspended
if GGPI, 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 shall not extend beyond 120 days with respect to any such
specified event.
C-9
(iii) GGPI hereby agrees to indemnify and hold harmless each Initial
Holder and each person, if any, who controls such Initial Holder (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
such Initial Holder 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 the Registration Statement
or the Prospectus 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 Initial Holder and each such
controlling person for any legal or other expenses reasonably incurred by
such Initial Holder in connection with investigating or defending any such
loss as such expenses are incurred; provided, however, that GGPI 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 GGPI by any Initial Holder expressly
for use therein. Each Initial Holder agrees to indemnify and hold harmless
GGPI and each person, if any, who controls GGPI (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 GGPI 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 GGPI by such Initial
Holder.
(iv) Each Initial Holder agrees that, upon receipt of any notice from
GGPI of the happening of any event of the kind described in Section
6(c)(ii)(5)(E), such Initial Holder will forthwith discontinue disposition
of securities pursuant to the Registration Statement until such Initial
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(ii)(8).
(d) NO OTHER EXCHANGE RIGHTS. The Series C Preferred Units are not
convertible into or redeemable or exchangeable for any other property or
securities of GGPI, the Managing Member, the Company or any other Person at the
option of any holder of Series C Preferred Units except as expressly provided in
this Section 6 or in that certain Debt Maintenance Agreement by and between the
Company and DAI of even date herewith.
7. TRANSFERS. Notwithstanding anything to the contrary contained in the
Agreement, DAI, and any Permitted DAI Transferee (hereinafter defined) pursuant
to this Section 7, may sell, assign or otherwise transfer all but not part of
its Series C Preferred Units to a single Permitted DAI Transferee, without the
consent of the Managing Member; provided, however, that (i) no such sale,
conveyance or other transfer may be made unless the requirements of Section 8.3
of the Agreement (other than Section 8.3(b) thereof) and the second and fourth
sentences of Section 8.2 of the Agreement are satisfied with respect to such
sale, conveyance or other transfer, (ii) such Series C Preferred Units are held
by one person for purposes of Treasury Regulation ss. 1.7704-1(h)(1)(ii), taking
into account the "look-through" rules of Treas. Reg.ss. 1.7704-1(h)(3), (iii)
the transferor and transferee provide the Company with representations and
covenants reasonably satisfactory to the Company to assure the Company that the
requirements
C-10
described in (ii) above will be satisfied immediately after the transfer and at
all times thereafter and (iv) the organizational documents of the proposed
transferee prohibit the issuance or the transfer of any membership or other
equity interests in such transferee if such transferee would thereafter be
treated as owned by more than 14 persons under Treas. Reg.ss. 1.7704-1(h)(1),
taking into account the look through rules of Treas. Reg.ss. 1.7704-1(h)(3). For
this purpose, a "Permitted DAI Transferee" shall mean a transferee pursuant to
this Section 7 that is any Person or Entity that is an Affiliate of DAI or a
transferee pursuant to this Section 7 that is any Person or Entity that is an
Affiliate of a Permitted DAI Transferee who was the transferee of Series C
Preferred Units pursuant to this Section 7 by virtue of having itself
constituted an Affiliate of DAI. In addition, DAI and each Permitted DAI
Transferee respectively covenants on behalf of themselves and their respective
direct or indirect equity owners that no issuances of membership or equity
interests or transfers of membership or equity interests in DAI or any DAI
Permitted Transferee or any Person owning a direct or indirect equity interest
in either shall be made or effective if the Series C Preferred Units held by DAI
or the DAI Permitted Transferee would thereafter be treated as owned by more
than 14 persons under Treas. Reg.ss. 1.7704-1(h)(1), taking into account the
look through rules of Treas. Reg.ss.1.7704-1(h)(3).
C-11