EXHIBIT 10.26
SECOND AMENDMENT TO AMENDED AND
RESTATED OPERATING AGREEMENT OF GGP-TRS L.L.C. AND FIRST
AMENDMENT TO OPERATING AGREEMENT OF GGP-TRS II L.L.C.
Amendment, dated November 1, 2005 (the "Amendment"), among GGP Limited
Partnership, a Delaware limited partnership ("GGPLP"), Teachers' Retirement
System of the State of Illinois ("TRS" and, together with GGPLP, the "Members"),
GGP-TRS L.L.C., a Delaware limited liability company (the "Company"), and
GGP-TRS II L.L.C., a Delaware limited liability company ("GGP-TRS II").
RECITALS:
WHEREAS, the Members are all of the members of the Company;
WHEREAS, the Company and the Members have entered into that certain Amended
and Restated Operating Agreement dated August 26, 2002, as amended (the
"Existing Operating Agreement"), relating to, among other things, the management
of the Company and the transfer of units of membership interest therein;
WHEREAS, the Members also are all of the members of GGP-TRS II;
WHEREAS, GGP-TRS II and the Members have entered into that certain
Operating Agreement dated November 29, 2004, as amended (the "Existing GGP-TRS
II Operating Agreement"), relating to, among other things, the management of
GGP-TRS II and the transfer of units of membership interest therein;
WHEREAS, GGP-TRS II and Xxxxxxxx Hawaii Investor, LLC ("Seller") have
entered into that certain Disposition Agreement, dated November 29, 2004 (as the
same may be amended from time to time, the "WV Purchase Agreement"), pursuant to
which GGP-TRS II agreed to purchase Whalers Village in Lahaina, Maui, Hawaii
("Whalers Village");
WHEREAS, each Member has delivered a guaranty to Seller with respect to the
WV Purchase Agreement (each, a "WV Guaranty");
WHEREAS, the Company is the sole member of WV Sub, LLC, a Delaware limited
liability company ("WV Sub");
WHEREAS, the parties hereto desire that:
(a) GGP-TRS II convey to WV Sub all of the right, title and interest
of GGP-TRS II under the WV Purchase Agreement;
(b) WV Sub assume all obligations of GGP-TRS II under the WV Purchase
Agreement;
(c) WV Sub obtain a loan (the "WV Loan") upon the terms described in
that certain Loan Agreement dated the date hereof, between WV Sub, as
borrower, and
Archon Financial L.P. and Commerzbank AG, New York Branch, as lenders
(collectively, the "WV Lender"), a portion of which will be Retained Debt
(as defined in the Existing Operating Agreement) and the remainder of which
(net of amounts deducted by WV Lender and other costs and expenses) will be
used by WV Sub to pay a portion of the purchase price for Whalers Village
(the "WV Purchase Price");
(d) GGPLP and TRS make additional capital contributions to the Company
which will be used to pay the remainder of the WV Purchase Price and the
acquisition costs for Whalers Village and establish a reserve for working
capital;
(e) WV Sub acquire Whalers Village pursuant to the WV Purchase
Agreement (the "WV Acquisition" and, together with the WV Loan and the
other transactions described in clauses (a)-(d) above and this clause (e),
the "WV Transactions"); and
(f) the parties make certain other modifications to the Existing
Operating Agreement; and
WHEREAS, the parties desire that the Company amend the Existing Operating
Agreement as hereinafter set forth to reflect their understandings regarding the
foregoing.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. DEFINED TERMS. Capitalized terms used but not defined herein shall have
the meanings set forth in the Existing Operating Agreement, as amended hereby.
2. MATTERS RELATING TO WV TRANSACTIONS. Notwithstanding anything to the
contrary contained in the Existing Operating Agreement or the Existing GGP-TRS
II Operating Agreement:
(a) Prior to the closing of the WV Acquisition, the parties shall
cause GGP-TRS II to assign and convey to WV Sub all of GGP-TRS II's right, title
and interest under the WV Purchase Agreement, and the Company shall cause WV Sub
to assume all of the obligations of GGP-TRS II under the WV Purchase Agreement,
pursuant to an Assignment and Assumption Agreement substantially in the form
attached hereto as Exhibit A. The Company shall indemnify, defend and hold
harmless GGP-TRS II from and against any and all losses, claims, damages, debts,
liabilities, costs and expenses (including without limitation reasonable
attorneys' fees), whether known or unknown, liquidated or unliquidated, fixed or
contingent or direct or indirect and whether based on contract, tort, statute or
other legal theory of recovery, which relate to or arise out of the WV Purchase
Agreement.
(b) The parties hereby approve the WV Transactions, which shall be
deemed to have been approved by the Board of the Company and the Board of
GGP-TRS II. Xxxx Xxxxx may execute and deliver any and all closing documents
relating to the WV Acquisition that are consistent with the terms and conditions
of the WV Purchase Agreement.
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(c) Concurrently with the closing of the WV Acquisition, each Member
shall pay $44,834,000.00 to the Company as an additional capital contribution
thereto. The additional capital contributions to be made pursuant to this
Section 2(c) shall be paid in immediately available funds. No additional Units
shall be issued to GGPLP or TRS on account of the additional capital
contributions referred to in this Section 2(c).
(d) $25,000,000 of the WV Loan shall constitute Retained Debt (the "WV
Retained Debt"), regardless of whether the Managing Member would be entitled to
make such designation under Section 10.1(a) of the Existing Operating Agreement.
The amount of the WV Retained Debt (i.e., $25,000,000) shall be paid directly to
GGPLP (or remitted by WV Sub to GGPLP) and used by GGPLP to pay a portion of its
capital contribution obligation under Section 2(c) hereof. No adjustment to the
Retained Debt shall be made pursuant to the last sentence of Section 10.1(a) of
the Existing Operating Agreement as a result of the WV Loan. The last sentence
of Section 10.1(a) of the Existing Operating Agreement shall in no event require
any future adjustment to Retained Debt which would reduce the WV Retained Debt,
and any such adjustment that would reduce the WV Retained Debt if this sentence
did not apply shall be determined without regard to (i) the WV Retained Debt and
Property Indebtedness of WV Sub and (ii) any other Retained Debt to which a
similar provision applies and the Property Indebtedness related thereto (and,
for clarity, any such similar provision is to be applied in the same manner as
is described in this sentence). Except as specifically set forth in this Section
2, all provisions of the Existing Operating Agreement shall apply to the WV
Retained Debt in the same manner as they apply to all other Retained Debt. TRS
shall have the right to review the loan documents relating to the WV Loan in
accordance with the last sentence of Section 6.2 of the Existing Operating
Agreement.
(e) In the event that either Member is required to pay any amount
pursuant to its WV Guaranty, the other Member shall, upon demand by such Member,
reimburse such Member for one-half of such amount.
(f) The Company shall pay (and/or cause WV Sub to pay) the costs of
the types shown on Exhibit B and/or Schedule 6.2 of the Existing Operating
Agreement that are or were incurred by the Company, WV Sub, GGPLP and/or GGP-TRS
II in connection with the WV Transactions, including without limitation the
financing fee required pursuant to Section 3 of Schedule 7.1-2 of the Existing
Operating Agreement and the acquisition fee required pursuant to Section 4 of
such schedule (collectively, the "Costs"); and, to the extent GGPLP and/or
GGP-TRS II has paid any of such costs, the Company shall reimburse (or cause WV
Sub) to reimburse them therefor. The payment of the Costs shall be deemed to
have been approved by the Board of the Company. Notwithstanding the foregoing,
(i) the financing fee referred to above shall be $850,000 (i.e., 1% of
$85,000,000 (the original principal amount of the WV Loan less the portion
thereof that constitutes Retained Debt)), (ii) except as shown on Exhibit B, the
Company or WV Sub shall pay the entire amount of all other costs and fees owing
in connection with the WV Loan (notwithstanding that a portion of the WV Loan is
Retained Debt) and (iii) such financing fee and the acquisition fee referred to
above shall be paid to GGMI at closing under the WV Purchase Agreement.
(g) The Managing Member shall submit the portions of the 2006 Proposed
Annual Business Plan that pertain to Whalers Village to the Board of the Company
for approval
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promptly after the date of this Amendment (instead of the earlier date, if any,
specified in the Existing Operating Agreement). During the portion of 2006 until
there is an Annual Business Plan that pertains to Whalers Village and during the
remainder of 2005, the Company shall cause WV Sub to operate Whalers Village in
a manner which is consistent with the operation by GGPLP of its properties
generally and WV Sub may make such expenditures as are consistent with the
operation of Whalers Village in such manner without the consent of the Board of
the Company (but the making of capital expenditures during such period in
respect of Whalers Village shall require the approval of such Board unless they
are in connection with tenant leasing or constitute Nondiscretionary Items).
(h) GGPLP represents and warrants to TRS that, as of the date hereof
and except for matters set forth in written materials furnished to TRS or
Commonwealth Realty Advisors, Inc. prior to the execution and delivery hereof,
GGPLP has no knowledge of inaccuracies in the representations made by Seller
under the WV Purchase Agreement (without regard to the knowledge qualifications
contained therein) that individually or in the aggregate would have a material
adverse effect on Whalers Village. For purposes of this paragraph, "Knowledge"
means the actual knowledge (excluding any constructive or imputed knowledge) of
Xxxx Xxxxx. The representation and warranty contained in this Section 2(h) shall
be subject to the same limitations on survival as are contained in Section 5.3
of the WV Purchase Agreement.
(i) The indemnification provisions contained in Section 6.6 of the
Existing Operating Agreement shall apply to GGPLP and its affiliates with
respect to their activities as managing member of, and provider of other
services to, GGP-TRS II.
(j) For purposes of calculating the Annual Administrative Services
Fee, the acquisition cost of the WV Property shall be determined without regard
to any market value adjustment for leases that would otherwise be required by
FAS 141-142.
(k) The parties acknowledge that the provisions of the Existing
Operating Agreement regarding Extended Term Financing (including without
limitation Schedule 6.2(e)(iv)) apply to Whalers Village. The financing fee paid
with respect to any refinancing of the WV Property prior to November 30, 2008
only shall apply to an amount of the gross proceeds thereof that equals the
excess of (i) the initial principal amount thereof (excluding any portion
thereof which constitutes Retained Debt) over (ii) the then outstanding
principal amount of the financing that is being repaid with such gross proceeds
(excluding any portion thereof that constitutes Retained Debt).
(l) Inasmuch as Whalers Village is being acquired by a subsidiary of
the Company rather than a subsidiary of GGP-TRS II, the following provisions of
the Existing GGP-TRS II Operating Agreement shall no longer be applicable: (i)
the provisions relating to the acquisition and operation of Whalers Village
(including without limitation the provision requiring delivery of "Proposed
Annual Business Plans" and the provisions regarding the provision of property
management and other services), (ii) the provisions regarding contributions to
the capital of GGP-TRS II, (iii) the last sentence of Section 3.1(d) regarding
reimbursement by TRS for amounts paid by GGPLP under the GGPLP Guaranty, (iv)
the provisions regarding delivery of reports and financial statements, (v) the
provision regarding confidentiality and nonuse of information as it pertains to
information about the WV Property and (vi) the
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provisions regarding the Unit Contribution (as defined in the Existing GGP-TRS
II Operating Agreement).
3. AMENDMENT TO SCHEDULE I. Schedule I of the Existing Operating Agreement
is hereby amended by deleting the reference to Xxxxxxx, Carton & Xxxxxxx and its
address and inserting the following in lieu thereof:
"Holland & Knight LLP
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Telephone: 312/000-0000
Facsimile: 312/578-6666"
4. NO OTHER CHANGES; ETC. Except as specifically set forth herein, the
Existing Operating Agreement and Existing GGP-TRS II Operating Agreement shall
remain in full force and effect (it being understood that the parties intend to
dissolve and terminate GGP-TRS II shortly after the date hereof). Any references
in either such document to "hereunder" or "herein" or other terms of similar
import shall mean such document, as amended hereby.
5. GOVERNING LAW. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware (without regard to its conflicts of law
principles).
6. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which shall be an original and all of which together shall constitute the same
document.
7. BINDING EFFECT. This Amendment shall be binding upon, and inure to the
benefit of, the parties and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first written above.
GGP LIMITED PARTNERSHIP,
a Delaware limited partnership
By: General Growth Properties, Inc.,
a Delaware corporation, its general
partner
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Assistant Secretary
TEACHERS' RETIREMENT SYSTEM OF THE STATE
OF ILLINOIS
By: Commonwealth Realty Advisors, Inc.,
as attorney-in-fact under power of
attorney
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx, President
GGP-TRS L.L.C., a Delaware limited
liability company
By: GGP LIMITED PARTNERSHIP, a Delaware
limited partnership, its managing
member
By: General Growth Properties, Inc., a
Delaware corporation, its general
partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Assistant Secretary
GGP-TRS II L.L.C.,
a Delaware limited liability company
By: GGP LIMITED PARTNERSHIP, a Delaware
limited partnership, its managing
member
By: General Growth Properties, Inc., a
Delaware corporation, its general
partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Assistant Secretary
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