EXHIBIT -4.15
REDEMPTION RIGHTS AGREEMENT
Redemption Rights Agreement, dated March 5, 2004, 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 Koury Corporation, a North Carolina corporation (together with its
successors and assigns, the "Contributing Party").
RECITALS
WHEREAS, the General Partner is the general partner of the Partnership;
WHEREAS, shares of common stock of the General Partner (the "Common Stock")
are listed on the New York Stock Exchange;
WHEREAS, pursuant to that certain Amended and Restated Contribution
Agreement dated as of March 5, 2004 (as the same has been amended and may be
further amended from time to time, the "Contribution 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 E Cumulative Convertible Preferred
Units of limited partnership in the Partnership (such units that are being
issued pursuant to the Contribution Agreement or any other securities issued in
substitution therefor pursuant to the Series E Preferred Unit Designation, the
"Series E Preferred Units");
WHEREAS, pursuant to the Series E Preferred Unit Designation (as defined
below), the Series E Preferred Units may be converted into Common Units (as
defined below) (the Common Units into which Series E Preferred Units have been
converted or any other securities issued in substitution therefor (other than
pursuant to this Agreement), the "Subject 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
Subject 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
Subject 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 Subject Common Units assuming the
Share Purchase Price were paid in full satisfaction of the Purchase Price for
such Subject 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 mean common units of limited partnership in the
Partnership.
"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.
"Contribution Agreement" shall have the meaning set forth in the recitals.
"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.
"Entity" shall mean any corporation, partnership, association, limited
liability company, trust or other entity.
"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.
"Liens" shall mean liens, pledges, security interests, mortgages,
encumbrances and other claims of any type or kind.
"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
-2-
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 or 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 the Resale Registration Statement,
the prospectus constituting a part thereof, as amended or supplemented.
"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.
"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.
"Resale Registration Statement" shall have the meaning set forth in Section
4.1(a).
"Rights" shall have the meaning set forth in Section 6(b).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor statute.
"Series E Preferred Units" shall have the meaning set forth in the
recitals.
"Series E Preferred Unit Designation" shall mean Schedule A to the
amendment to the Partnership Agreement that is being executed and delivered
concurrently herewith.
"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 Subject 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
-3-
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 Subject Common Units or adjustment otherwise has been
made in respect thereof).
"Shares" shall mean shares of the Common Stock.
"Subject Common Units" shall have the meaning set forth in the recitals.
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 Subject Common Units of the Contributing Party for the Cash
Purchase Price with respect to such Subject 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 respect to the Subject Common Units for which the Contributing
Party exercised its Redemption Rights; provided, however, that if at the time of
the satisfaction of such obligation the General Partner is not an Exchange Act
Reporting Company or the Resale Registration Statement is not then current and
effective and the General Partner is ineligible to file a registration statement
with the SEC on Form S-3 (or any successor form), then notwithstanding anything
to the contrary contained herein, if the General Partner elects to satisfy such
obligation, then it shall be required to deliver the full Cash Purchase Price to
the Contributing Party in accordance with the terms hereof. If the General
Partner duly assumes such obligations with respect to the exercise by the
Contributing Party of a Redemption Right as to certain Subject Common Units and
makes the required payment of the Share Purchase Price, the Cash Purchase Price
or any combination thereof, as applicable, 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 Subject Common Units, and any Subject
Common Units purchased shall be owned by the General Partner for all purposes;
provided, however, that until the General Partner makes such payment of the
Share Purchase Price, the Cash Purchase Price or any combination thereof in
accordance with the terms hereof, the Partnership shall remain liable to the
Contributing Party for the Cash Purchase Price.
(c) If the General Partner shall duly 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 Subject Common Units
(or a portion thereof) to the General Partner for federal income tax purposes.
-4-
(d) Upon the redemption or purchase of part or all of the Contributing
Party's Subject 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 Subject Common Units redeemed or purchased and shall have
no further rights or obligations under this Agreement with respect to such
redeemed or purchased Subject Common Units; provided, however, that the
Contributing Party's rights under this Agreement with regard to any other
Subject 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 3,000 Subject Common Units (or all
the Common Units then owned by the Contributing Party if the Contributing Party
owns less than 3,000 Subject Common Units) or in the event that such exercise of
Redemption Rights (or the assignment of Subject Common Units or delivery of
either the Cash Purchase Price or the Share Purchase Price with respect thereto)
violates the Partnership Agreement or applicable law. Once given, a Notice shall
be irrevocable subject to the payment of the Purchase Price for the Subject
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 Subject 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 Subject Common Units.
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 Subject 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 in immediately available funds
or, in the event that the General Partner has duly assumed the obligations of
the Partnership with respect to such exercise of Redemption Rights, the General
Partner shall, subject to Section 2(b) hereof, 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 in
immediately available funds or (b) certificates representing the Shares and any
other securities and/or other property constituting the Share Purchase Price,
-5-
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) Within 15 days after the first issuance of any Shares pursuant hereto,
the General Partner shall file with the SEC 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 all other Shares issuable by the General
Partner upon exercise of the Redemption Rights assuming full conversion of the
Series E Preferred Units and full satisfaction of the Redemption Rights by
delivery of Shares and shall use its reasonable best efforts to cause such
registration statement (the "Resale Registration Statement") to become effective
as soon as practicable thereafter. Following the effective date of the Resale
Registration Statement and until the Shares covered by the 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 Resale
Registration Statement current, effective and available for the resale by
Contributing Party of the Shares delivered to it pursuant hereto.
(b) During the time period when the 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 the Resale Registration Statement and the Prospectus
relating thereto, as may be necessary to keep the Resale Registration
Statement effective and to comply with the provisions of the Securities Act
with respect to the sale of the Shares covered by the 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 the 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 the 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 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 the 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;
-6-
(iv) before filing any amendments or supplements to the 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 the 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
the Resale Registration Statement and the Prospectus relating thereto or
for additional information, and (C) of the happening of any event during
the period the Resale Registration Statement is effective which in the
judgment of the General Partner makes any statement made in the Resale
Registration Statement or such Prospectus untrue in any material respect or
which requires the making of any changes in the 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 the 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 the 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 in good faith that
disclosure of any information required to be included therein would be
adverse to its interests; provided further, however, that such suspension
(A) shall not 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 the Resale Registration
Statement or the initiation of any proceedings for that purpose, or (ii)
if, between the effective date of any the 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
-7-
efforts to obtain the withdrawal of any order suspending the effectiveness
of the Resale Registration Statement at the earliest practicable time.
(c) 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 the 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 Claims 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 such untrue statement or omission or such alleged
untrue statement or omission based upon such information furnished in writing to
the General Partner by such Contributing Party.
(d) 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 (b)(v)(C) above and without waiving any rights under clause (b)(vii)
above, such Contributing Party will forthwith discontinue disposition of
securities pursuant to the Resale Registration Statement until Contributing
Party's receipt of the copies of the supplemented or amended Prospectus
contemplated by clause (b)(vii) above.
(e) The General Partner shall bear all expenses relating to filing the
Resale Registration Statement and keeping the Resale Registration Statement
current, effective and available; provided, 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 or any legal fees of
Contributing Party.
(f) 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
the Resale 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
-8-
General Partner will promptly notify the Contributing Party of, and confirm in
writing, the delisting of the Shares.
(g) Notwithstanding anything to the contrary contained herein, the General
Partner shall have no obligation to keep the Resale 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; Etc. 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 E Preferred Units have been converted into Subject
Common Units and that the General Partner elected to pay the Share Purchase
Price with respect to all such Redemption Rights). Without the written consent
of the holders of at least a majority of the issued and outstanding Subject
Common Units (assuming that all of the issued and outstanding Series E Preferred
Units were converted into Subject Common Units in accordance with the
Partnership Agreement immediately prior to the execution of such consent), the
Partnership Agreement may not be amended to materially adversely affect the
right of the holders of the Subject Common Units to transfer the Subject Common
Units if such amendment does not apply to the other holders of Common Units
(including Common Units that may be issued upon conversion of Preferred Units
other than the Series E Preferred Units) in the same manner on a Common
Unit-for-Common Unit basis. Upon the request of Contributing Party, the
Partnership agrees to provide Contributing Party with such information as is
reasonably available to the Partnership regarding the sum of the percentage
interests in the Partnership's capital or profits that is represented by
interests in the Partnership that have been sold or otherwise disposed of during
the taxable year in which the request is made by Contributing Party, for
purposes of the "lack of actual trading" safe harbor from the definition of
"publicly traded partnership".
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 Subject 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.
-9-
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 (or, if none, the effective date) for 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 (or, if none, the effective date) for such dividend, distribution,
subdivision or combination. 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 (or, if none, the effective 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)
or effective date.
(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 Subject 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 E Preferred Units of the Contributing Party into Subject 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
-10-
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 E Preferred Units of the Contributing
Party had been converted into Subject Common Units, such Redemption Rights had
been exercised and the General Partner had satisfied the Redemption 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 or other
section hereof. 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 or other transaction
described in clause (Z) of Section 4(b) of the Series E Preferred Unit
Designation.
(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
and a copy thereof shall be promptly sent to the Contributing Party. Any
adjustment to the Conversion Factor pursuant to Section 6(a) with respect to any
event shall become effective at such time as is necessary to prevent dilution or
expansion of the Redemption Rights on account of such event.
(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 Subject
Common Units were issued and outstanding as of the date hereof. Thus, for
example, if an event were to occur on December 31, 2004 that would adjust the
number of Shares into which the Subject Common Units would be exchangeable had
such Subject Common Units been outstanding as of such date, but the Subject
Common Units were not actually issued until December 31, 2005, then such
adjustment would be applied so that, upon such issuance (but subject to further
adjustment for subsequent events), the Subject Common Units would be
exchangeable in accordance with the other terms hereof for the number of Shares
for which the Subject Common Units would have been exchangeable had such Subject
Common Units been outstanding on December 31, 2004.
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, or delivered by
hand with receipt acknowledged in writing and
-11-
otherwise as set forth in this Section 7.1. All notices and other communications
(a) shall be deemed given when received 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, 110 N.
Wacker Drive, Chicago, Illinois 60606, facsimile number (312) 960-5463,
Attention: Bernard Freibaum (with a copy to Neal, Gerber & Eisenberg, Two North
LaSalle Street, Suite 2200, Chicago, Illinois 60602, Attn: Marshall E.
Eisenberg, facsimile number (312) 269-1747), and, in the case of the
Contributing Party, as set forth on the 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 Subject Common Units or Series E Preferred Units, and
becomes a substituted partner with respect to such Subject Common Units or
Series E 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 Subject Common Units (assuming
that all of the then issued and outstanding Series E Preferred Units were
converted into Subject Common Units in accordance with the Partnership Agreement
immediately prior to the execution of such amendment and constitute issued and
outstanding Subject Common Units at such time).
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.
-12-
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.
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]
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
CONTRIBUTING PARTY:
KOURY CORPORATION, a North Carolina ATTEST:
corporation
By: /s/ Stephen D. Showfety By:
--------------------------------- ------------------------------------
Name: Stephen D. Showfety Name:
Title: President Title:
PARTNERSHIP:
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: General Growth Properties, Inc.,
a Delaware corporation,
its general partner
By: /s/ Ronald L. Gern
---------------------------------
Ronald L. Gern,
Senior Vice President
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.
a Delaware corporation
By: /s/ Ronald L. Gern
---------------------------------
Ronald L. Gern,
Senior Vice President
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, dated ____________ (the "Agreement"), among the Partnership,
General Growth Properties, Inc. (the "General Partner"), and Koury Corporation,
(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, if applicable, 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,
(iii) that the undersigned is an accredited investor as defined in Regulation D
under the Securities Act and any Shares that are acquired by it on account of
this Notice of Redemption would be acquired for its own account, for investment
purposes only and not with a view to, and with no present intention of, selling
or distributing the same in violation of federal or state securities laws (but
nothing contained in this clause (iii) impairs the right of Contributing Party
to sell Shares pursuant to the Resale Registration Statement) and (iv) 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-