EXHIBIT 10.114
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
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TABLE OF CONTENTS
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1.
Definitions..........................................................1
2.
Partnership.........................................................12
2.1
Formation....................................................13
2.2
Name.........................................................13
2.3
Registered
Office and Agent..................................13
3. Purpose and
Powers of the Partnership...............................13
4.
Term................................................................14
5. Principal
Office....................................................14
6. Capital
Contributions; OP Units.....................................14
6.1
OP
Units.....................................................14
6.2
Initial
Capital Contribution.................................14
6.3
Additional
Capital Contributions.............................15
6.4
Issuance of OP
Units.........................................16
6.5
Capital
Accounts.............................................17
6.6
Interest
on and Return of Capital............................18
6.7
Negative
Capital Accounts....................................19
6.8
Limit on
Contributions and Obligations of Partners...........19
7.
Allocations.........................................................19
7.1
Profits......................................................19
7.2
Losses.......................................................19
7.3
Special
Allocations..........................................19
7.4
Curative
Allocations.........................................21
7.5
Other
Allocation Rules.......................................22
7.6
Tax
Allocations; Code Section 704(c).........................22
8.
Distributions.......................................................23
8.1
Requirement and Characterization of Distributions............23
8.2
Amounts
Withheld.............................................23
8.3
Distributions Upon Liquidation...............................23
9. Management
and Operations of Partnership............................24
9.1
Management
by General Partner................................24
9.2
Limitations on Powers and Authorities of Partners............28
9.3
No
Management by Limited Partners............................29
9.4
Liability
of General Partner.................................29
9.5
Indemnity....................................................29
9.6
Other
Activities of Partners and the Trust...................31
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9.7
Contracts
with Related Parties...............................32
9.8
Other
Matters Concerning the General Partner.................33
9.9
Bankruptcy
of a Limited Partner..............................33
9.10
Duties of
Limited Partners and Conflicts.....................34
9.11
Acquisition
Projects.........................................34
9.12
Development
Projects.........................................35
9.13
Acquisition/Development Projects--Further Assurances.........35
9.14
Partner
Exculpation..........................................35
9.15 General Partner Expenses and
Liabilities.....................36
9.16
Title to
Partnership Assets..................................37
9.17
Reliance by
Third Parties....................................37
9.18
Limited Partner
Representatives..............................38
10.
Banking.............................................................38
11.
Accounting..........................................................38
11.1
Fiscal
Year..................................................38
11.2
Books of
Account.............................................38
11.3
Method of
Accounting.........................................39
11.4
Preparation of
Tax Returns...................................39
11.5
Tax
Election.................................................39
11.6
Tax Matters
Partner..........................................39
11.7
Organizational
Expenses......................................41
11.8
Withholding..................................................41
12. Transfers of
Partnership Interests..................................42
12.1
Transfers....................................................42
12.2
General
Partner..............................................42
12.3
Limited
Partners.............................................43
12.4
Substituted
Limited Partners.................................45
12.5
Assignees....................................................45
12.6
General
Provisions...........................................46
13. Admission of
Partners...............................................47
13.1
Admission of
Successor General Partner.......................47
13.2
Admission of
Additional Limited Partners.....................47
14. Limited Partner
Representations and Warranties......................48
14.1
Representations
and Warranties of the Primary Limited
Partners.....................................................48
14.2
Survival of
Representations and Warranties...................48
14.3
Indemnification..............................................48
14.4
Limitations on
Indemnification Obligations...................48
14.5
Security and
Remedies........................................50
14.6
Nonrecourse..................................................51
14.7
Restriction on
Transfer......................................51
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15. Liquidation and
Liquidation and Dissolution........................52
15.1
Dissolution.................................................52
15.2
Winding
Up..................................................53
15.3
Compliance with
Timing Requirements of
Regulations.................................................54
15.4
Deemed
Distribution and Recontribution......................55
15.5
Notice of
Dissolution.......................................55
15.6
Cancellation of
Certificate of Limited Partnership..........55
15.7
Reasonable Time
for Winding-Up..............................55
15.8
Waiver of
Partition.........................................56
16. Power of
Attorney..................................................56
17. Redemption of
Limited Partnership Interests........................57
18. Amendment of
Agreement.............................................57
19. Arbitration of
Disputes............................................58
19.1
Arbitration.................................................58
19.2
Procedures..................................................58
19.3
Binding
Character...........................................60
19.4
Exclusivity.................................................60
19.5
No Alteration of
Agreement..................................60
Miscellaneous...........................................................60
20.1
Notices.....................................................60
20.2
Modifications...............................................60
20.3
Counterparts................................................60
20.4
Construction................................................61
20.5
Governing
Law...............................................61
20.6
Other
Instruments...........................................61
20.7
Legal
Construction..........................................61
20.8
Gender......................................................61
20.9
Prior Agreements
Superseded.................................61
20.10 No Third Party
Beneficiary..................................61
20.11
Representations.............................................61
20.12
Waiver......................................................62
20.13 Time of
Essence.............................................62
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GLIMCHER PROPERTIES LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
THIS
LIMITED PARTNERSHIP AGREEMENT (this "Agreement") has been executed
and
delivered as of the 30th day of November, 1993, by and among
Glimcher Properties
Corporation (the "General Partner"), a Delaware corporation,
Glimcher Realty
Trust (the "Trust"), a Maryland real estate investment trust, and
the Persons
whose names are set forth on Exhibit A hereto (together with the
Trust, the
"Limited Partners") (the General Partner and the Limited Partners
being each a
"Partner" and collectively, the "Partners").
WHEREAS, Glimcher Properties Limited Partnership (the
"Partnership") was
duly organized on September 9, 1993 under the Delaware Revised
Limited
Partnership Act for the purposes herein stated; and
WHEREAS, the Partners desire to set forth their agreement
concerning the
Partnership, its management and operations.
NOW,
THEREFORE, in consideration of the mutual covenants contained in
this
Agreement, and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the Partners agree as
follows:
1.
Definitions.
1.1 As used in this Agreement, the following terms shall have
the
meanings set forth respectively after each:
"Acquisition Notice" shall have the meaning set forth in
Section
14.5 hereof.
"Acquisition Project" shall mean Shopping Center Projects;
provided, however, that the term "Acquisition Project" shall not
include the
Development Projects.
"Acquisition Properties" means the 46 properties acquired by
the
Partnership and/or Subsidiary Partnerships from unaffiliated third
parties as
defined in the Registration Statement.
"Act" shall mean the Delaware Revised Limited Partnership Act,
as
amended from time to time, and any successor statute thereto.
"Additional Limited Partner" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 13.2
hereof.
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"Adjusted Capital Account Deficit" shall mean, at any time, the
then deficit balance in the Capital Account of a Partner, after
giving effect to
the following adjustments:
(i) credit to such Capital Account any amounts that such
Partner is deemed obligated to restore as described in the
penultimate sentences
of Regulations Section 1.704-2(g)(1) and Regulations Section
1.704-(i)(5); and
(ii) debit such Capital Account with the items described in
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
"Affiliate" of a Person (the "Principal") shall mean (i) any
Person who, directly or indirectly through one or more
intermediaries controls,
is controlled by or under common control with the Principal; (ii)
if the
Principal is not an individual, any officer, director, trustee or
general
partner of the Principal; and (iii) any relative or spouse (or any
relative of
that spouse) of the Principal or of any other Person included in
clause (i) or
(ii) above, any of whom has the same home address as the
Principal.
"Agreement" shall mean this Limited Partnership Agreement, as
it
may be amended from time to time.
"Assignee" means a Person to whom one or more OP Units have
been
transferred in a manner permitted under this Agreement, but who has
not become a
Substituted Limited Partner, and who has the rights set forth in
Section 12.5
hereof.
"Available Cash" means, with respect to any period for which
such
calculation is being made:
(a) the sum of:
(i) the Partnership's Profit or Loss (as the case may be)
for such period (without regard to adjustments resulting from
allocations described in Sections 7.3(a)-7.3(f) hereof);
(ii) Depreciation and all other noncash charges deducted in
determining Profit or Loss for such period;
(iii) the amount of any reduction in reserves of the
Partnership referred to in clause (b)(vi) below (including
reductions resulting because the General Partner determines
such
amounts are no longer necessary);
(iv) the excess of proceeds from the sale, exchange,
disposition or refinancing of Partnership property for such
period over the gain (or loss, as the case may be)recognized
from
such sale, exchange, disposition or refinancing during such
period (excluding Terminating Capital Transactions); and
(v) all other cash received by the Partnership for such
period (other than Capital Contributions) that was not included
in determining Profit or Loss for such period;
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(b) less the sum of:
(i) all principal debt payments made during such period by
the Partnership;
(ii) capital expenditures made by the Partnership during
such period;
(iii) investments in any entity (including loans made
thereto) to the extent that such investments are not otherwise
described in clauses (b)(i) or (ii);
(iv) all other expenditures and payments not deducted in
determining Profit or Loss for such period;
(v) any amount included in determining Profit or Loss for
such period that was not received by the Partnership during
such
period; and
(vi) the amount of any increase in reserves established
during such period which the General Partner determines is
necessary or appropriate in its sole and absolute discretion.
Notwithstanding the foregoing, Available Cash shall not include any
cash
received or reductions in reserves, or take into account any
disbursements made
or reserves established, after commencement of the dissolution and
liquidation
of the Partnership.
"Bankruptcy" of a Partner shall mean (a) the commencement by
such
Partner of any proceeding seeking relief under any provision or
chapter of the
Federal Bankruptcy Code or any other Federal or state law relating
to
insolvency, bankruptcy, or reorganization; (b) an adjudication that
such Partner
is insolvent or bankrupt; (c) the entry of an order for relief
under the Federal
Bankruptcy Code with respect to such Partner; (d) the filing of any
such
petition or the commencement of any such case or proceeding against
such
Partner, unless such petition and the case or proceeding initiated
thereby is
dismissed within ninety (90) days from the date of such filing; (e)
the filing
of an answer by such Partner admitting the allegations of any such
petition; (f)
the appointment of a trustee, receiver or custodian for all or
substantially all
of the assets of such Partner unless such appointment is vacated or
dismissed
within ninety (90) days from the date of such appointment but not
less than five
(5) days before the proposed sale of any assets of such Partner;
(g) the
insolvency of such Partner or the execution by such Partner of a
general
assignment for the benefit of creditors or (h) the levy,
attachment, execution
or other seizure of substantially all the assets of such Partner
where seizure
is not discharged within thirty (30) days thereafter.
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"Capital Account" shall mean the capital account maintained by
the Partnership for each Partner as described in Section 6.5
hereof.
"Capital Contribution" shall mean, when used in respect of a
Partner, any amounts of money or the fair market value, as
determined by the
General Partner, of other property contributed by such Partner to
the capital of
the Partnership pursuant to the terms of this Agreement, including
the Capital
Contribution made by any predecessor holder of the Partnership
Interest of such
Partner.
"Certificate" shall have the meaning set forth in Section 2.1
hereof.
"Claim" shall have the meaning set forth in Section 14.4
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as the
same
may be amended from time to time, and any successor statute
thereto. Any
reference to a specific provision of the Code shall include any
amendments to
such provision or any corresponding provisions of succeeding
law.
"Closing Price" on any date shall mean the last sale price,
regular way, or, in case no such sale takes place on such date, the
average of
the closing bid and asked prices, regular way, in either case as
reported in the
principal consolidated transaction reporting system with respect to
securities
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 highest bid
and lowest ask
prices in the over-the-counter market, as reported by the National
Association
of Securities Dealers, Inc. Automated Quotation System or, if such
system is no
longer used, the principal other automated quotation 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 the market in the Common Shares as such person
is selected
from time to time by the Board of Trustees of the Trust.
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"Collateral" shall have the meaning set forth in Section 14.5
hereof.
"Common Share Value" as of any date shall mean the total number
of Common Shares issued and outstanding at the close of business on
such date
(and excluding any treasury shares), multiplied by the Current Per
Share Market
Price on such date.
"Common Shares" means the common shares of beneficial interest,
$.01 par value per share, of the Trust.
"Completion of the Offering" shall mean the closing of the
first
sale of Common Shares in the Offering.
"Consent of the Limited Partners" means the written consent of
Limited Partners (other than the Trust) holding a majority of the
Limited
Partnership Interests (not including Limited Partnership Interests
held by the
Trust).
"Current Per Share Market Price" as of any date shall mean the
average of the Closing Price for the five consecutive Trading Days
ending on
such date.
"Deemed Partnership Interest Value" as of any date, shall mean
with respect to a Partner, the Deemed Value of the Partnership (as
of the day
preceding such date) multiplied by such Partner's Percentage
Interest.
"Deemed Value of the Partnership" as of any date, shall mean
and
be equal to the Common Share Value as of the Trading Day
immediately preceding
such date.
"Demand Notice" shall have the meaning set forth in Section
19.2
hereof.
"Depreciation" shall mean for any fiscal year or portion
thereof
of the Partnership, an amount equal to the depreciation,
amortization or other
cost recovery deduction allowable with respect to an asset for such
period for
Federal income tax purposes, except that if the Gross Asset Value
of an asset
differs from its adjusted basis for Federal income tax purposes at
the beginning
of such period, Depreciation shall be an amount that bears the same
relationship
to such beginning Gross Asset Value as the depreciation,
amortization or cost
recovery deduction in such period for Federal income tax purposes
bears to such
beginning adjusted tax basis; provided, however, that if the
adjusted basis for
Federal income tax purposes of an asset at the beginning such
period is zero,
Depreciation shall be determined with reference to such beginning
Gross Asset
Value using any reasonable method selected by the General
Partner.
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"Development Land" shall mean any vacant land suitable for
development as a shopping center.
"Development Project" shall mean any Development Land and any
Shopping Center Project developed and/or constructed on Development
Land by the
Primary Limited Partners and/or their Affiliates, directly or
indirectly;
provided, however, the term Development Project shall not include
the properties
described on attached Exhibit B which, as of the date hereof, are
owned by the
Limited Partners and/or their Affiliates or are properties in which
the Limited
Partners and/or their Affiliates have equity ownership or other
economic
interests.
"Disclosure Schedule" shall mean that certain Disclosure
Schedule
attached as Exhibit D which contains the exceptions to the
representations and
warranties of the Primary Limited Partners made pursuant to Section
14.1 hereof.
For the convenience of the parties, each exception noted in the
Disclosure
Schedule shall be numbered to correspond to the applicable
subsection of Exhibit
C to which it refers; provided, however, that where disclosure in
the Disclosure
Schedule of a matter in response to one subsection is made as to
the nature or
character of such matter, the failure to otherwise set forth such
matter
elsewhere in the Disclosure Statement shall not give rise to any
claim or
liability so long as any such disclosure sufficiently described
its
applicability to such matter and indicates its applicability to the
other
subsection.
"Environmental Laws" means the Resource Conservation and
Recovery
Act (42 U.S.C. Section 6901 et seq.), as amended by the Hazardous
and Solid
Waste Amendments of 1984; the Comprehensive Environmental Response,
Compensation
and Liability Act (42 U.S.C. Section 9601 et seq.), as amended by
the Superfund
Amendments and Reauthorization Act of 1986; the Hazardous
Materials
Transportation Act (49 U.S.C. Section 1801 et seq.); the Toxic
Substance Control
Act (15 U.S.C. Section 2601 et seq.); Clean Air Act (42 U.S.C.
Section 9402 et
seq.); the Clean Water Act (33 U.S.C. Section 1251 et seq.); the
Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Section 136 et
seq.); the
Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.)
and all
applicable federal, state and local environmental laws, including
obligations
under the common law, ordinances, rules and regulations, as any of
the foregoing
may have been amended, supplemented or supplanted prior to the date
hereof,
relating to regulation or control of hazardous, toxic or dangerous
substances or
wastes, or their handling, storage or disposal or to environmental
health and
safety.
"Environmental Reports" shall have the meaning set forth in
Exhibit C hereto.
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"General Partner" means Glimcher Properties Corporation or any
successor general partner of the Partnership.
"General Partnership Interest" means a Partnership Interest
held
by a Partner in its capacity as General Partner.
"Glimcher Properties" shall mean the 29 Properties designated
as
the Glimcher Properties in the Registration Statement.
"Gross Asset Value" means, with respect to any Partnership
asset,
the asset's adjusted basis for Federal income tax purposes, except
as follows:
(i) The initial Gross Asset Value of any asset contributed
by a Partner to the Partnership shall be the gross fair market
value of such asset, as determined by the General Partner;
(ii) The Gross Asset Value of the Partnership assets shall
be adjusted to equal their respective gross fair market value,
as
determined by the General Partner, as of the following times:
(a)
the acquisition of an additional interest in the Partnership by
any new or existing Partner in exchange for more than a de
minimis Capital Contribution; (b) the distribution by the
Partnership to a Partner of more than a de minimis amount of
Partnership property as consideration for an interest in the
Partnership; and (c) the liquidation of the Partnership within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
provided, however, that adjustments pursuant to clauses (a) and
(b) above shall be made only if the General Partner reasonably
determines that such adjustments are necessary or appropriate
to
reflect the relative economic interests of the Partners in the
Partnership;
(iii) The Gross Asset Value of any Partnership asset
distributed to any Partner shall be adjusted to equal the gross
fair market value of such asset on the date of distribution as
determined by the General Partner; and
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the
adjusted basis of such assets pursuant to Code Section 734(b)
or
Code Section 743(b), but only to the extent that such
adjustments
are taken into account in determining Capital Accounts pursuant
to Regulations Section 1.704-1(b)(2)(iv)(m) and paragraph (vi)
of
the definition of Profits and Losses and Section 7.3 hereof;
provided, however, that Gross Asset Values shall not be
adjusted
pursuant to this paragraph (iv) to the extent the General
Partner
determines that an adjustment pursuant to paragraph (ii) above
is
necessary or appropriate in connection with a transaction that
would otherwise result in an adjustment pursuant to this
paragraph
(iv).
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If
the Gross Asset Value of an asset has been determined or
adjusted
pursuant to paragraphs (i), (ii) or (iv) above, such Gross Asset
Value
shall thereafter be adjusted by the Depreciation taken into account
with
respect to such asset for purposes of computing Profits and
Losses.
"Immediate Family" means, with respect to any natural Person,
such natural Person's spouse, parents, descendants, nephews,
nieces, brothers
and sisters.
"Incapacity" or "Incapacitated" means, (i) as to any individual
Partner, death, total physical disability or entry by a court of
competent
jurisdiction adjudicating him incompetent to manage his Person or
his estate;
(ii) as to any corporation which is a Partner, the filing of a
certificate of
dissolution, or its equivalent, for the corporation or the
revocation of its
charter; (iii) as to any partnership which is a Partner, the
dissolution and
commencement of winding up of the Partnership; (iv) as to any
estate which is a
Partner, the distribution by the fiduciary of the estate's entire
interest in
the Partnership; (v) as to any trustee of a trust which is a
Partner, the
termination of the trust (but not the substitution of a new
trustee); or (vi) as
to any Partner, the Bankruptcy of such Partner.
"Indemnitee" means (i) any Person made a party to a proceeding
by
reason of his status as (a) the General Partner or (b) a director,
trustee,
officer or shareholder of the Partnership or the General Partner,
and (ii) such
other Persons (including Affiliates of the General Partner or the
Partnership)
as the General Partner may designate from time to time, in its sole
and absolute
discretion.
"Initial Transactions" shall mean the formation transactions
described in the Registration Statement.
"IRS" means the United States Internal Revenue Service.
"Lien" shall mean any liens, security interests, mortgages,
deeds
of trust, changes, claims, encumbrances, pledges, options, rights
of first offer
or first refusal and any other rights or interests of others of any
kind or
nature, actual or contingent, or other similar encumbrances of any
nature
whatsoever.
"Limited Partner" shall mean any Person set forth on Exhibit A
hereto, or any Substituted Limited Partner and any Additional
Limited Partner
recorded in the books and records of the Partnership, in such
Person's capacity
as a Limited Partner of the Partnership. "Limited Partners" means
all such
Persons.
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"Limited Partnership Interest" means a Partnership Interest
held
by a Partner in his or its capacity as a Limited Partner.
"Nonrecourse Deductions" has the meaning set forth in
Regulations
Section 1.704-2(c).
"Nonrecourse Liability" has the meaning set forth in
Regulations
Section 1.752-1(a)(2).
"Notice of Breach" shall have the meaning set forth in Section
14.2 hereof.
"Offering" shall have the meaning set forth in the Registration
Statement.
"OP Units" shall have the meaning provided in Section 6.1
hereof.
"Other Common Shares" shall have the meaning set forth in
Section
6.3(b)hereof.
"Other Securities" shall have the meaning set forth in Section
6.3(b) hereof.
"Partner Nonrecourse Debt" has the meaning set forth in
Regulations Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" has the meaning set
forth
in Regulations Section 1.704-2(i)(2).
"Partner Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704-2(i).
"Partners" shall mean, collectively, the General Partner and
each
Limited Partner, or any additional or successor Partners of the
Partnership.
Reference to a Partner shall be to any one of the Partners.
"Partnership Interest" shall mean the ownership interest of a
Partner in the Partnership at any particular time, including the
right of such
Partner to any and all benefits to which such Partner may be
entitled as
provided in this Agreement, and to the extent not inconsistent with
this
Agreement, under the Act, together with the obligations of such
Partner to
comply with all of the terms and provisions of this Agreement and
of the Act.
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"Partnership Minimum Gain" has the meaning set forth in
Regulations Sections 1.704-2(b)(2) and 1.704-2(d).
"Partnership Record Date" means the record date established by
the General Partner for the distribution of Available Cash pursuant
to Section
8.1 hereof, which record date shall be the same as the record date
established
by the General Partner for a distribution to its shareholders of
some or all of
its portion of such distribution.
"Percentage Interest" of a Partner in the Partnership shall
mean
the percentage interest of such Partner as stated in Exhibit A
hereto, or as
such percentage interest may be adjusted from time to time in
accordance with
the provisions of this Agreement and recorded in the books and
records of the
Partnership.
"Person" means any individual, partnership, corporation, trust
or
other entity.
"Preferred Shares" shall have the meaning set forth in Section
6.3(b) hereof.
"Primary Limited Partners" shall mean Herbert Glimcher and
David
J. Glimcher.
"Profits" and "Losses" shall mean for each fiscal year or
portion
thereof, an amount equal to the Partnership's items of taxable
income or loss
for such year or period, determined in accordance with Section
703(a) of the
Code, with the following adjustments:
(i) any income which is exempt from Federal income tax and
not otherwise taken into account in computing Profits or Losses
shall be added to (or subtracted from) taxable income (or
loss);
(ii) any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Section 705(a)(2)(b)
expenditures under Regulations Section 1.704- 1(b)(2)(iv)(i)
and
not otherwise taken into account in computing Profits or
Losses,
will be subtracted from or added to) taxable income (or loss);
(iii) in the event that the Gross Asset Value of any
Partnership asset is adjusted pursuant to the definition of
Gross
Asset Value contained in this Section 2, the amount of such
adjustment shall be taken into account as gain or loss from the
disposition of such asset for purposes of computing Profits and
Losses;
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(iv) gain or loss resulting from any disposition of
Partnership assets with respect to which gain or loss is
recognized for Federal income tax purposes shall be computed by
reference to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property
differs from its Gross Asset Value;
(v) in lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such
taxable
income or loss, there shall be taken into account Depreciation
for such fiscal year or other period;
(vi) to the extent an adjustment to the adjusted tax basis
of any Partnership asset pursuant to Code Section 734(b) is
required pursuant to Regulations Section
1.704-1(b)(2)(iv)(m)(4)
to be taken into account in determining Capital Accounts as a
result of a distribution other than in complete liquidation of
a
Partner's Partnership Interest, the amount of such adjustment
shall be treated as an
item of gain (if the adjustment increases
the basis of the asset) or loss (if the adjustment decreases
the
basis of the asset) from the disposition of the asset and shall
be taken into account for purposes of computing Profits and
Losses; and
(vii) any items specifically allocated pursuant to Section
7.3 or Section 7.4 hereof shall not be considered in
determining
Profits or Losses.
"Properties" shall mean the 75 properties as defined in the
Registration Statement.
"Qualified Individual" shall have the meaning set forth in
Section 19.2 hereof.
"Real Estate Investment Trust" shall mean such term as defined
in
Section 856 of the Code.
"Registration Statement" shall mean the Registration Statement
No. 33-69740 (including the Prospectus contained therein)
heretofore filed by
the Trust with the Securities and Exchange Commission, and any
amendments at any
time hereafter made thereto (other than post-effective amendments),
pursuant to
which the Trust proposes to offer and sell certain of its Common
Shares.
"Regulations" shall mean the Income Tax Regulations, including
Temporary Regulations, promulgated under the Code, as such
Regulations may be
amended from time to time (including corresponding provisions of
succeeding
Regulations).
"REIT Requirements" is defined in Section 3(c) hereof.
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"Requesting Party" shall have the meaning set forth in Section
19.2 hereof.
"Responding Party" shall have the meaning set forth in Section
19.2 hereof.
"Restricted Period" shall have the meaning set forth in Section
9.11 hereof.
"Restrictions Lapse Date" shall have the meaning set forth in
Section 9.11 hereof.
"Rights of Redemption" shall have the meaning set forth in
Section 17.1 hereof.
"Shopping Center Project" shall mean any shopping center,
including construction and improvement activities undertaken with
respect
thereto and off-site improvements, on-site improvements,
structures, buildings
and/or related parking and other facilities.
"Subsidiary" means, with respect to any Person, any corporation
or other entity of which a majority of (i) the voting power of the
voting equity
securities or (ii) the outstanding equity interests is owned,
directly or
indirectly, by such Person.
"Subsidiary Partnerships" means partnerships that are directly
or
indirectly majority owned by the Partnership and/or the Trust.
"Substituted Limited Partner" means a Person who is admitted as
a
Limited Partner to the Partnership pursuant to Section 12.4
hereof.
"Terminating Capital Transaction" means any sale or other
disposition of all or substantially all of the assets of the
Partnership or a
related series of transactions that, taken together, result in the
sale or other
disposition of all or substantially all of the assets of the
Partnership.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Common Shares are listed or
admitted to trading
is open for the transaction of business or, if the Common Shares
are not listed
or admitted to trading on any national securities exchange, shall
mean any day
other than a Saturday, a Sunday or a day on which banking
institutions in the
State of New York are authorized or obligated by law or executive
order to
close.
"Trust" means Glimcher Realty Trust, a Maryland real estate
investment trust.
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2.
Partnership.
2.1 Formation. The Partnership was formed upon the filing of
the
Certificate of Limited Partnership of the Partnership (the
"Certificate") with
the Secretary of State of the State of Delaware in compliance with
the
provisions of the Act, for the limited purposes set forth herein.
Except as
otherwise specifically provided in this Agreement, the rights and
obligations of
the Partners and the management and termination of the Partnership
shall be
governed by the Act.
2.2 Name. The name of the Partnership is Glimcher Properties
Limited
Partnership or such other name as may from time to time be selected
by the
General Partner, provided that prompt notice of any such other name
selected
shall be given to the other Partners. The General Partner shall
cause to be
executed and filed on behalf of the Partnership such assumed or
fictitious name
certificates as may be required to be filed in connection with the
business of
the Partnership.
2.3 Registered Office and Agent. The address of the
Partnership's
registered office in the State of Delaware is 32 Loockerman Square,
Suite 100L,
Dover, Kent County, Delaware 19901, and the name of the
Partnership's registered
agent at such address is The Prentice Hall Corporation System, Inc.
The General
Partner, in its discretion, may from time to time change such
registered office
and agent.
3.
Purpose and Powers of the Partnership.
(a) The purposes of the Partnership shall be to acquire,
purchase, own, operate, manage, develop, redevelop, construct,
reconstruct,
alter, modify, add to, subtract from, invest in, mortgage,
encumber, exchange,
sell, lease and otherwise deal with shopping centers, enclosed
malls, single
tenant and other primarily retail properties and residential,
office and mixed
use (retail/office) properties and industrial and warehouse
properties and real
estate and interests therein of all types, including, without
limitation,
mortgages, deeds of trust and similar interests and other
instruments and
participations therein, and assets related to the foregoing,
including, without
limitation, related amenities such as amusement parks or centers,
whether
directly or indirectly, alone or in association with others, and in
general, to
make any investments or expenditures, to borrow and lend money and
to take any
and all actions which are incidental or related to any of these
purposes. It is
agreed that each of the foregoing is an ordinary part of the
Partnership's
business and affairs. Property may be acquired subject to, or by
assuming, the
liens, encumbrances and title exceptions which affect such
property. The
Partnership may also be a partner, general or limited, in
partnerships, general
or limited, and joint ventures created to accomplish all or any of
the
foregoing.
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(b) The Partnership is empowered, and the General Partner is
authorized, to do any and all acts and things necessary,
appropriate, proper,
advisable, incidental to or convenient for the furtherance and
accomplishment of
the purposes and business described in Section 3(a) hereof.
(c) Notwithstanding anything to the contrary contained in this
Agreement, for so long as the Trust is a Partner, the Partnership
shall operate
in such a manner and the Partnership shall take or omit to take all
actions as
may be necessary (including making appropriate distributions from
time to time)
so as to permit the Trust (i) to continue to qualify as a Real
Estate Investment
Trust under Sections 856 through 860 of the Code so long as such
requirements
exist (the "REIT Requirements"), and (ii) to minimize its exposure
to the
imposition of an excise tax under Section 4981(a) of the Code or a
tax under
Section 857(b)(5) of the Code, so long as such taxes may be
imposed, each of (i)
and (ii) to at all times be determined (A) as if the Trust's sole
asset is its
Partnership Interest, and (B) without regard to the action or
inaction of the
Trust with respect to distributions (by way of dividends or
otherwise) and the
timing thereof. In addition, and without limitation of the
foregoing, the
Partnership shall take no action with respect to a sale, exchange,
or other
disposition of any property owned by the Partnership with respect
to which a
material issue exists as to whether such sale, exchange or other
disposition
would cause the Trust to incur a prohibited transaction tax under
Section
857(b)(6) of the Code.
4.
Term. The term of the Partnership shall continue until December 31,
2092
unless the Partnership is dissolved sooner upon the occurrence of
an event
described in Section 15.1 hereof.
5.
Principal Office. The principal office of the Partnership shall
be
located at 35 North Fourth Street, Columbus, Ohio 43215-3602, or at
such other
place as the General Partner may designate. The General Partner
shall give
prompt written notice of such designation to the other
Partners.
6.
Capital Contributions; OP Units.
6.1 OP Units. The interest of a Partner in the Partnership is
sometimes referred to as being evidenced by one or more "OP Units".
Such OP
Units may, but shall not be required to be, represented by
certificates
indicating such Partner's interest.
6.2 Initial Capital Contributions. At the time of execution of
this
Agreement, the Partners shall make the Capital Contributions, shall
hold the OP
Units and shall have the Percentage Interests set forth opposite
their
respective names on Exhibit A hereto. The agreed to gross fair
market value of
each of the contributed assets shall be its respective initial
Gross Asset Value
as set forth on Exhibit A hereto.
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<PAGE>
6.3 Additional Capital Contributions.
(a) No Partner shall be assessed or, except as provided for in
Section 6.3(b) hereof, be required to contribute additional funds
or other
property to the Partnership. Any additional funds or other property
required by
the Partnership, as determined by the General Partner in its sole
discretion,
may, at the option of the General Partner and without an obligation
to do so
(except as provided for in Section 6.3(b) hereof), be contributed
by the General
Partner as additional Capital Contributions. Except as otherwise
provided in
Section 6.3(b) hereof, if and as the General Partner or any other
Partner makes
additional Capital Contributions to the Partnership, each such
Partner shall
receive additional OP Units as provided for in Section 6.4(a)
hereof. The
General Partner shall also have the right (but not the obligation)
to raise any
additional funds required for the Partnership by causing the
Partnership to
borrow the necessary funds from any Person, including the Trust and
its
Affiliates. Such borrowing shall be on such terms and conditions as
the General
Partner shall deem appropriate in its reasonable discretion;
provided that if
the Trust or one of its Affiliates is the lender and obtained such
funds through
its own borrowing, then the borrowing by the Partnership shall be
on comparable
terms and conditions and costs and expenses, as shall be applicable
with respect
to or incurred in connection with the borrowing by the Trust or one
of its
Affiliates. If the General Partner elects to cause the Partnership
to borrow
additional funds, it may cause one or more of the Partnership's
assets to be
encumbered to secure the loan.
(b) The net proceeds of any and all funds raised by or through
the Trust through the issuance of additional Common Shares of the
Trust shall be
contributed to the Partnership as additional Capital Contributions
and, in such
event, the Trust shall be issued additional OP Units pursuant to
Section 6.4(a)
hereof. The net proceeds of any and all funds raised by or through
the Trust
through the issuance of preferred shares of beneficial interest
("Preferred
Shares") of the Trust or shares of any class of common shares of
beneficial
interest of the Trust other than Common Shares ("Other Common
Shares") or
rights, options, warrants or convertible or exchangeable securities
containing
the right to subscribe for or purchase Preferred Shares, Common
Shares or Other
Common Shares (collectively, "Other Securities"), together with any
subsequent
proceeds from the exercise of the Other Securities, shall be
contributed to the
Partnership as additional Capital Contributions, and in such event
the Trust
shall cause the Partnership to issue to the Trust an interest in
the Partnership
or rights, options, warrants or convertible or exchangeable
securities of the
Partnership, having designations, preferences and other rights, all
such that
their economic interests are substantially similar to those of the
Preferred
Shares, Other Common Shares or Other Securities, as the case may
be. At such
time as the Other Securities are exercised,
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converted or exchanged for or into Common Shares, the Trust shall
exercise,
convert or exchange for or into OP Units the consideration it
received upon
contribution to the Partnership of the proceeds from the sale of
Other
Securities.
(c) If the Trust has a reinvestment program, each Limited
Partner
shall have the right to reinvest any or all cash distributions
payable to it
from time to time pursuant to this Agreement by having some or all
(as each such
Limited Partner elects) of such distributions contributed to the
Partnership as
additional Capital Contributions, and in such event the Partnership
shall issue
to each such Limited Partner additional OP Units pursuant to
Section 6.4(a)
hereof. In such event, the General Partner shall create and
administer a
reinvestment program to effect the foregoing in substantial
conformance with any
dividend reinvestment program available to holders of the Common
Shares.
(d) Except as provided herein, no Partner shall have any
preemptive, preferential or other similar right with respect to (i)
additional
Capital Contributions or loans to the Partnership or (ii) the
issuance or sale
of OP Units.
6.4 Issuance of OP Units.
(a) Subject to the provisions of this Section 6.4(a), the
General
Partner from time to time shall cause the Partnership to issue
additional OP
Units as follows:
(i) to existing or newly-admitted Partners (including
itself) in exchange for the contribution by a Partner (the
"Contributing
Partner") of additional Capital Contributions to the
Partnership;
(ii) to the Trust in connection with the purchase by the
Trust from the Partnership of OP Units pursuant to Paragraph 5 of
Exhibit E
hereto; or
(iii) to the Trust upon the issuance by the Trust of
additional Common Shares not in connection with the purchase by the
Trust from
the Partnership of OP Units pursuant to Paragraph 5 of Exhibit E
hereto,
provided that any net proceeds received by the Trust as a result of
the issuance
of such additional Common Shares are contributed to the Partnership
as
additional Capital Contributions, in accordance with Section 6.3(b)
hereof (it
being understood that the Trust may issue Common Shares in
connection with any
Trust Share Option Plan or Other Securities without receiving any
cash proceeds
and that the issuance of such shares shall nonetheless entitle the
Trust to
additional OP Units).
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<PAGE>
The number of OP Units issued to a Contributing Partner under
clause (i) of this
Section 6.4(a) shall be equal to the quotient (rounded to the
nearest whole
number) arrived at by dividing (x) the amount of cash or the Gross
Asset Value
of the property contributed as additional Capital Contributions
(net of any debt
to which such property is subject or assumed by the Partnership in
connection
with such contribution) by (y) the Current Per Share Market Price.
The number of
OP Units issued to the Trust under clause (ii) of this Section
6.4(a) shall be
equal to the number of OP Units sold by the Partnership to the
Trust for Common
Shares. The number of OP Units issued to the Trust under clause
(iii) of this
Section 6.4(a) shall be equal to the number of Common Shares
issued. Upon the
issuance of additional OP Units, the Percentage Interests of all of
the Partners
shall be adjusted by the General Partner so that the Percentage
Interest of each
Partner is equal to the quotient (expressed as a percentage)
arrived at by
dividing the number of OP Units held by a Partner by the total
number of OP
Units then outstanding. Notwithstanding anything to the contrary
contained
herein, in no event shall any additional OP Units be issued to the
extent that
the effect of such issuance would be to reduce the Trust's and the
General
Partner's aggregate Percentage Interest to less than 51%.
(b) In the event of any change in the outstanding Common Shares
by reason of any stock dividend, split, recapitalization, merger,
consolidation,
combination, exchange of shares or other similar corporate change,
the number of
OP Units held by each Partner shall be proportionately adjusted so
that the
Deemed Value of the Partnership divided by the number of OP Units
issued and
outstanding remains equal to the then Current Per Share Market
Price. In the
event the Trust issues any Common Shares in consideration for OP
Units pursuant
to Paragraph 5 of Exhibit E hereto, any such OP Units so acquired
by the Trust
shall immediately thereafter be cancelled by the Partnership and
the Partnership
shall issue to the Trust new OP Units pursuant to Section
6.4(a)(ii) hereof.
6.5 Capital Accounts. A separate capital account ("Capital
Account")
shall be maintained for each Partner.
(a) To each Partner's Capital Account there shall be credited
such Partner's Capital Contributions, such Partner's distributive
share of
Profits and any items in the nature of income or gain which are
specially
allocated pursuant to Section 7.3 of Section 7.4 hereof, and the
amount of any
Partnership liabilities assumed by such Partner or which are
secured by any
Partnership property distributed to such Partner.
(b) To each Partner's Capital Account there shall be debited
the
amount of cash and the Gross Asset Value of any Partnership
property distributed
to such Partner pursuant to any provision of this Agreement, such
Partner's
distributive
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share of Losses and any items in the nature of expenses or losses
which are
specifically allocated pursuant to Section 7.3 or Section 7.4
hereof, and the
amount of any liabilities of such Partner assumed by the
Partnership or which
are secured by any property contributed by such Partner to the
Partnership.
(c) In the event all or a portion of a Partnership Interest is
transferred in accordance with the terms of this Agreement
(including a sale by
the Partnership of OP Units to the Trust, pursuant to Paragraph 5
of Exhibit E
hereto), the transferee shall succeed to the Capital Account of the
transferor
to the extent it relates to the transferred Partnership
Interest.
(d) In determining the amount of any liability for purposes of
Sections 6.5(a) and 6.5(b) hereof, there shall be taken into
account Code
Section 752(c) and any other applicable provisions of the Code and
Regulations.
(e) This Section 6.5 and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to
comply with
Regulations Section 1.704-1(b) and shall be interpreted and applied
in a manner
consistent with such Regulations. In the event the General Partner
shall
determine that it is prudent to modify the manner in which the
Capital Accounts,
or any debits or credits thereto (including debits or credits
relating to
liabilities which are secured by contributed or distributed
property or which
are assumed by the Partnership or the Partners) are computed, the
General
Partner may make such modification, provided that it is not likely
to have a
material effect on the amounts distributed to any Partner pursuant
to Section 15
hereof upon the dissolution of the Partnership or would otherwise
not have a
material adverse effect on any Partner or any Partner's Capital
Account. The
General Partner also shall (i) make any adjustments that are
necessary or
appropriate to maintain equality between the Capital Accounts of
the Partners
and the amount of Partnership capital reflected on the
Partnership's balance
sheet, as computed for book purposes, in accordance with
Regulations Section
1.704-1(b)(2)(iv)(g), and (ii) make any appropriate modifications
in the event
unanticipated events might otherwise cause this Agreement not to
comply with
Regulations Section 1.704-1(b); provided that such adjustments or
modifications
to the extent they may be made in the discretion of the General
Partner shall
not, either singly or in the aggregate, have a material adverse
effect on any
Partner or any Partner's Capital Account.
6.6 Interest on and Return of Capital.
(a) No Partner shall be entitled to any interest on its Capital
Account or on its contributions to the capital of the
Partnership.
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(b) Except as expressly provided for in this Agreement, no
Partner shall have the right to demand or to receive the return of
all or any
part of his Capital Contributions to the Partnership and there
shall be no
priority of one Partner over the other as to the return of Capital
Contributions
or withdrawals or as to distributions, profits and losses. No
Partner shall have
the right to demand or receive property other than cash in return
for the
contributions of such Partner to the Partnership.
6.7 Negative Capital Accounts. No Limited Partner shall be required
to
pay to the Partnership or any other Partner any deficit or negative
balance
which may exist in its Capital Account.
6.8 Limit on Contributions and Obligations of Partners. Except
as
provided in Section 6.3(a) hereof, neither the Limited Partners nor
the General
Partner shall be required to make any additional advances or
contributions to or
on behalf of the Partnership or to endorse any obligations of the
Partnership.
7.
Allocations.
7.1 Profits. After giving effect to the special allocations set
forth
in Section 7.3 and 7.4 hereof, Profits for any fiscal year shall be
allocated
among the Partners in proportion to their respective Percentage
Interests.
7.2 Losses.
(a) After giving effect to the special allocations set forth in
Section 7.3 and 7.4 hereof, Losses for any fiscal year shall be
allocated among
the Partners in proportion to their respective Percentage
Interests.
(b) The Losses allocated pursuant to Section 7.2(a) hereof
shall
not exceed the maximum amount of Losses that can be so allocated
without causing
any Limited Partner to have an Adjusted Capital Account Deficit at
the end of
any fiscal year. All Losses in excess of the limitations set forth
in this
Section 7.2(b) shall be allocated to the General Partner.
7.3 Special Allocations. Subject to Section 7.6 hereof, the
following
special allocations shall be made in the following order:
(a) Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding any other provision
of this
Section 7, if there is a net decrease in Partnership Minimum Gain
during any
fiscal year, each Partner shall be specially allocated items of
Partnership
income and gain for such fiscal year (and, if necessary, subsequent
fiscal
years) in an amount
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equal to such Partner's share of the net decrease in Partnership
Minimum Gain,
determined in accordance with Regulations Section 1.704-2(g). The
items to be so
allocated shall be determined in accordance with Regulations
Section
1.704-2(f)(6) and 1.704-2(j)(2). The General Partner is hereby
authorized to
seek a waiver from the IRS of the provisions of this Section 7.3
and the minimum
gain chargeback provisions of the Regulations if the General
Partner determines
to do so in its sole and absolute discretion. This Section 7.3(a)
is intended to
comply with minimum gain chargeback requirement in Section
1.704-2(f) of the
Regulations and shall be interpreted consistently therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise
provided
in Regulations Section 1.704-2(i)(4), notwithstanding any other
provision of
this Section 7, if there is a net decrease in Partner Nonrecourse
Debt Minimum
Gain attributable to a Partner Nonrecourse Debt during any
Partnership fiscal
year, each Partner who has a share of the Partner Nonrecourse Debt
Minimum Gain
attributable to such Partner Nonrecourse Debt determined in
accordance with
Regulations Section 1.704-2(i)(5), shall be specially allocated
items of
Partnership income and gain for such fiscal year (and, if
necessary, subsequent
fiscal years) in an amount equal to such Partner's share of the net
decrease in
Partner Nonrecourse Debt Minimum Gain attributable to such Partner
Nonrecourse
Debt, determined in accordance with Regulations Section
1.704-2(i)(4). The items
to be so allocated shall be determined in accordance with
Regulations Sections
1.704-2(i)(4) and 1.704-2(j)(2). The General Partner is hereby
authorized to
seek a waiver from the IRS of the provisions of this Section 7.3
and the minimum
gain chargeback provisions of the Regulations if the General
Partner determines
to do so in its sole and absolute discretion. This Section 7.3(b)
is intended to
comply with the minimum gain chargeback requirement in Regulations
Section
1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Partner
unexpectedly receives any adjustments, allocations, or
distributions described
in Regulations Section 1.704-1(b)(2)(ii)(d)(4), Section
1.704-1(b)(2)(ii)(d)(5)
or Section 1.704-1(b)(2)(ii)(d)(6), items of Partnership income and
gain shall
be specially allocated to each such Partner in an amount and manner
sufficient
to eliminate, to the extent required by the Regulations, the
Adjusted Capital
Account Deficit of such Partner as quickly as possible, provided
that an
allocation pursuant to this Section 7.3(c) shall be made only if
and to the
extent that such Partner would have an Adjusted Capital Account
Deficit after
all other allocations provided for this Section 7 have been
tentatively made, as
if this Section 7.3(c) were not in the Agreement.
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(d) Gross Income Allocation. In the event any Partner has an
Adjusted Capital Account Deficit at the end of any Partnership
fiscal year, each
such Partner shall be specifically allocated items of Partnership
income and
gain in the amount of such excess as quickly as possible, provided
that an
allocation pursuant to this Section 7.3(d) shall be made only if
and to the
extent that such Partner would have an Adjusted Capital Account
Deficit after
all other allocations provided for in this Section 7 have been made
as if this
Section 7.3(d) were not in the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any
fiscal
year shall be allocated among the Partners in accordance with their
respective
Percentage Interests.
(f) Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any fiscal year shall be specially allocated to the
Partner who
bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable, in
accordance with
Regulations Section 1.704-2(i)(1).
(g) Section 754 Adjustments. The Partnership shall make a
timely
election under Section 754 such that the Trust may adjust the tax
bases of the
Partnership assets pursuant to Section 743(b), if appropriate, upon
a transfer
of a Partnership Interest. In addition, to the extent an adjustment
to the
adjusted tax basis of any Partnership asset pursuant to Code
Section 734(b) is
required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to
be taken into
account in determining Capital Accounts, the amount of such
adjustment to
Capital Accounts shall be treated as an item of gain (if the
adjustment
increases the basis of the asset) or loss (if the adjustment
decreases such
basis) and such item of gain or loss shall be specifically
allocated to the
Partners in a manner consistent with the manner in which their
Capital Accounts
are required to be adjusted pursuant to such Section of the
Regulations.
7.4 Curative Allocations. The allocations set forth in Sections
7.2(b)
and 7.3(a)-7.3(g) hereof (the "Regulatory Allocations") are
intended to comply
with certain requirements of the Regulations under Sections 704(b)
and
514(c)(9)(E) of the Code. It is the intent of the Partners that, to
the extent
possible, all Regulatory Allocations shall be offset either with
other
Regulatory Allocations or with special allocations of other items
of Partnership
income, gain, loss or deduction pursuant to this Section 7.4.
Therefore,
notwithstanding any other provision of this Section 7 (other than
the Regulatory
Allocations and Section 7.6), the General Partner shall make such
offsetting
special allocations of Partnership income, gain, loss or deduction
in whatever
manner it determines appropriate so that, after such offsetting
allocations are
made, each Partner's Capital Account balance is, to the extent
possible, equal
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to the Capital Account balance such Partner would have had if the
Regulatory
Allocations were not part of the Agreement and all Partnership
items were
allocated pursuant to Sections 7.1 and 7.2(a), and so that, to the
greatest
extent possible, such allocations comply with the Regulations under
Code Section
514(c)(9)(E). In exercising its discretion under this Section 7.4,
the General
Partner shall take into account future Regulatory Allocations under
Sections
7.3(a) and 7.3(b) that, although not yet made, are likely to offset
other
Regulatory Allocations previously made under Sections 7.3(e) and
7.3(f).
7.5 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses or any
other
items allocable to any period, Profits, Losses and any such other
items shall be
determined on a daily, monthly or other basis, as determined by the
General
Partner using any permissible method under Code Section 706 and the
Regulations
thereunder.
(b) The Partners are aware of the income tax consequences of
the
allocations made by this Section 7 and hereby agree to be bound by
the
provisions of this Section 7 in reporting their shares of
Partnership income and
loss for income tax purposes.
(c) Solely for purposes of determining a Partner's
proportionate
share of the "excess nonrecourse liabilities" of the Partnership
within the
meaning of Regulations Section 1.752-3(a)(3), the Partners'
interests in
Partnership profits are equal to their respective Percentage
Interests.
7.6 Tax Allocations; Code Section 704(c).
(a) Notwithstanding any other provision herein to the contrary,
income, gain, loss and deduction with respect to any property
contributed to the
capital of the Partnership shall, solely for tax purposes, be
allocated among
the Partners so as to take account of any variation between the
adjusted basis
of such property to the Partnership for Federal income tax purposes
and its
initial Gross Asset Value in accordance with Code Section 704(c)
and Prop. Reg.
Section 1.704-3(b) (1), provided, however, that if the General
Partner
determines, in its sole and absolute discretion, that the method
described in
Prop. Reg. Section 1.704-3(b) is not permissible under the Code and
regulations,
then the method described in Prop. Reg. Section 1.704-3(c) should
be used.
(b) In the event the Gross Asset Value of any Partnership asset
is adjusted pursuant to the definition of "Gross Asset Value"
contained in
Section 1 hereof, subsequent allocations of income, gain, loss and
deduction
with respect to such asset shall take
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account of any variation between the adjusted basis of such asset
for Federal
income tax purposes and its Gross Asset Value in the same manner as
set forth in
Section 7.6(a) above.
(c) Allocations pursuant to this Section 7.6 are solely for
purposes of Federal, state and local taxes and shall not affect, or
in any way
be taken into account in computing, any Partner's Capital Account
or share of
Profits, Losses, other items or distributions pursuant to any
provision in this
Agreement.
8.
Distributions.
8.1 Requirement and Characterization of Distributions. The
General
Partner shall distribute quarterly all, or such portion as the
General Partner
may in its discretion determine, of Available Cash generated by the
Partnership
during such quarter to the Partners who are Partners on the
Partnership Record
Date with respect to such quarter in accordance with their
respective Percentage
Interests on such Partnership Record Date. The General Partner
shall take such
reasonable efforts, as determined by it in its sole and absolute
discretion and
consistent with the Trust's qualification as a Real Estate
Investment Trust, to
distribute Available Cash to the Limited Partners so as to preclude
any such
distribution or portion thereof from being treated as part of a
sale of property
to the Partnership by a Limited Partner under Section 707 of the
Code or the
Regulations thereunder; provided that the General Partner and the
Partnership
shall not have liability to a Limited Partner under any
circumstances as a
result of any distribution to a Limited Partner being so
treated.
8.2 Amounts Withheld. All amounts withheld pursuant to the Code or
any
provisions of any state or local tax law and Section 11.8 hereof
with respect to
any allocation, payment or distribution to the General Partner or
the Limited
Partners shall be treated as amounts distributed to the General
Partner or
Limited Partners pursuant to Section 8.1 for all purposes under
this Agreement.
8.3 Distributions Upon Liquidation. Proceeds from a Terminating
Capital Transaction shall be distributed to the Partners in
accordance with
Section 15.2 hereof.
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9.
Management and Operations of Partnership.
9.1 Management by General Partner.
(a) The General Partner shall be the sole manager of the
Partnership business, shall have the right and power to make all
decisions and
take any and every action with respect to the property, the
business and affairs
of the Partnership, and shall have all the rights, power and
authority generally
conferred by law, or necessary, advisable or consistent with
accomplishing the
purposes of the Partnership. All such decisions or actions made or
taken by the
General Partner hereunder shall be binding upon all of the Partners
and the
Partnership. The powers of the General Partner to manage the
Partnership
business shall include the power and authority to:
(i) operate any business related to the ownership of or
investment in shopping centers, enclosed malls and single
tenant
and other primarily retail properties and residential, office
and
mixed use (retail/office) and other properties consistent with
the purposes and powers of the Partnership;
(ii)
the making of any expenditures, the lending or
borrowing of money (including making prepayments on loans and
borrowing money to permit the Partnership to make distributions
to its Partners in such amounts as will permit the Trust (so
long
as the Trust qualifies as a Real Estate Investment Trust) to
avoid the payment of any Federal income tax (including, for
this
purpose, any excise tax pursuant to Section 4981 of the Code)
and
to make distributions to the Trust's shareholders of amounts
sufficient to permit the Trust to maintain Real Estate
Investment
Trust status), the entering into arrangements to limit exposure
to fluctuations in interest rates, including interest rate
swaps
and caps, the assumption or guarantee of, or other contracting
for, indebtedness and other liabilities, the issuance of
evidences of indebtedness (including the securing of same by
mortgage, deed of trust or other lien or encumbrance on the
Partnership's assets) and the incurring of any obligations it
deems necessary for the conduct of the activities of the
Partnership;
(iii) the making of tax, regulatory and other filings, or
rendering of periodic or other reports to governmental or other
agencies having jurisdiction over the business or assets of the
Partnership;
(iv) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of any assets of the
Partnership or the merger or other combination of the
Partnership
with or into another entity;
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(v) the use of the assets of the Partnership (including cash
on hand) for any purpose consistent with the terms of this
Agreement and on any terms it sees fit, including the borrowing
and/or financing of the conduct of the operations of the Trust,
the General Partner, the Partnership or any of the
Partnership's
or Trust's Subsidiaries, the lending of funds to other Persons
(including the Partnership's or the Trust's Subsidiaries) and
the
repayment of obligations of the Partnership, the Trust and any
of
their Subsidiaries and any other Person in which they have an
equity investment;
(vi) the negotiation, execution and performance of any
contracts, conveyances or other instruments, including leases
and
licenses, that the General Partner considers useful or
necessary
to the conduct of the Partnership's operations or the
implementation of the General Partner's powers under this
Agreement, including those with the General Partner, the Trust
or
their Affiliates;
(vii) the distribution of Partnership cash or other
Partnership assets in accordance with this Agreement;
(viii) the selection and dismissal of employees of the
Partnership or the General Partner (including employees having
titles such as "president," "vice president," "secretary" and
"treasurer"), and agents, outside attorneys, accountants,
consultants and contractors of the General Partner or the
Partnership and the determination of their compensation and
other
terms of employment or hiring;
(ix) the maintenance of such insurance for the benefit of
the Partnership and the Partners as it deems necessary or
appropriate;
(x) the formation of, or acquisition of an interest in, and
the contribution of cash or property to, any further limited or
general partnerships, joint ventures or other relationships
that
it deems desirable and, in general, the making of investments
of
any kind, so long as such investments are consistent with the
REIT Requirements;
(xi) the control of any matters affecting the rights and
obligations of the Partnership, including the conduct of
litigation and the incurring of legal expense and the
settlement
of claims and litigation, and the indemnification of
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any Person against liabilities and contingencies to the extent
permitted by law;
(xii) the undertakings of any action in connection with the
Partnership's direct or indirect investment in its Subsidiaries
or any other Person (including the contribution or loan of
funds
by the Partnership to such Persons); and
(xiii) the determination of the fair market value of any
Partnership property distributed in kind using such reasonable
method of valuation as it may adopt.
(b) The General Partner on behalf of the Partnership and
without
the consent of the Limited Partners shall have the right but not
the obligation:
(i) to transfer any Partnership property in complete or
partial satisfaction of a creditor's claims, including the
holder
of a mortgage or other lien on Partnership property, by
executing
and delivering a deed in lieu of foreclosure, bill of sale or
otherwise;
(ii) to confess a judgment; and
(iii) not to contest any foreclosure action commenced with
respect to Partnership property or any other action claiming a
default under any mortgage or other lien on Partnership
property.
(c) Each of the Limited Partners agrees that the General
Partner
is authorized to execute, deliver and perform the above-mentioned
agreements and
transactions on behalf of the Partnership without any further act,
approval or
vote of the Partners, notwithstanding any other provision of this
Agreement
(except as provided in Section 9.2 hereof), the Act or any
applicable law, rule
or regulation. The execution, delivery or performance by the
General Partner or
the Partnership of any agreement authorized or permitted under this
Agreement
shall not constitute a breach by the General Partner of any duty
that the
General Partner may owe the Partnership or the Limited Partners or
any other
Persons under this Agreement or of any duty stated or implied by
law or equity.
(d) At all times from and after the date hereof, the General
Partner may cause the Partnership to obtain and maintain (i)
casualty, liability
and other insurance on the properties of the Partnership and (ii)
liability
insurance for the Indemnitees hereunder.
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<PAGE>
(e) At all times from and after the date hereof, the General
Partner may cause the Partnership to establish and maintain working
capital
reserves in such amounts as the General Partner, in its sole and
absolute
discretion, deems appropriate and reasonable from time to time.
(f) In exercising its authority under this Agreement, the
General
Partner shall take into account the tax consequences to any Partner
of any
action taken by it. The General Partner and the Partnership shall
not have
liability to a Limited Partner under any circumstances as a result
of an income
tax liability incurred by such Limited Partner as a result of an
action (or
inaction) by the General Partner pursuant to its authority under
this Agreement.
(g) To the extent that such action is determined by the General
Partner to be reasonable and necessary or appropriate, the General
Partner shall
file amendments to and restatements of the Certificate and do all
the things to
maintain the Partnership as a limited partnership (or a partnership
in which the
limited partners have limited liability) under the laws of the
State of Delaware
and each other state in which the Partnership may elect to do
business or own
property. The General Partner shall not be required, before or
after filing, to
deliver or mail a copy of the Certificate or any amendment thereto
to any
Limited Partner. The General Partner shall use all reasonable
efforts to cause
to be filed such other certificates or documents as may be
reasonable and
necessary or appropriate for the formation, continuation,
qualification and
operation of a limited partnership (or a partnership in which the
limited
partners have limited liability) in the State of Delaware and any
other state in
which the Partnership may elect to do business or own property.
(h) The Partners agree that the Trust may issue additional
Common
Shares in accordance with Section 6.4(a) hereof, notwithstanding
that the result
of such issuance would be to dilute the interests of the Limited
Partners in the
Partnership.
(i) The Partners agree that a majority of the Board of
Directors
of the General Partner shall at all times be the same independent
directors as
are members of the Board of Trustees of the Trust.
(j) The Limited Partners shall have the right, exercisable upon
the delivery to the General Partner of written notice by the
Limited Partners
holding a majority of the Limited Partnership Interests, (i) to
cause the
removal of the General Partner for any reason, with or without
cause, and (ii)
to select a successor general partner. Upon such removal, the
General Partner's
interest in the Partnership shall be converted into a Limited
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<PAGE>
Partnership Interest with the same economic interest as such
General Partner's
interest.
9.2 Limitations on Powers and Authorities of Partners.
(a) Notwithstanding the powers of the General Partner set forth
in Section 9.1 hereof, no Partner shall have the right of power to
do any of the
following:
(i) do any act in contravention of this Agreement, or any
amendment hereto;
(ii) do any act which would make it impossible to carry on
the ordinary business of the Partnership, except to the extent that
such act is
specifically permitted by the terms hereof; or
(iii) perform any act that would subject a Limited Partner
to liability as a general partner in any jurisdiction or to any
other liability
except as provided herein or in the Act.
(b) The General Partner may not, without the Consent of the
Limited Partners, take any of the following actions:
(i) amend, modify or terminate this Agreement, except as
otherwise provided herein;
(ii) make a general assignment for the benefit of creditors
or appoint or acquiesce in the appointment of a custodian, receiver
or trustee
for all or any part of the assets of the Partnership;
(iii) institute any proceeding on behalf of the Partnership
under Title 11 of the United States Code, as the same may be
amended from time
to time; or
(iv) dissolve the Partnership.
Notwithstanding the foregoing, the Consent of the Limited Partners
shall not be
required for any action listed above in this Section 9.2(b) if, at
the time that
the General Partner desires to take such action, the Limited
Partners (other
than the Trust) own, in the aggregate, less than ten percent (10%)
of the
Partnership Interests. In addition to the foregoing, the Consent of
the Limited
Partners holding a majority of the Limited Partnership Interests is
required for
the General Partner to take the action specified in clause (iv)
above.
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<PAGE>
9.3 No Management by Limited Partners. The Limited Partners shall
have
no right or authority to act for or to bind the Partnership and no
Limited
Partner shall participate in the conduct or control of the
Partnership's affairs
or business.
9.4 Liability of General Partner.
(a) The General Partner shall not be liable or accountable, in
damages or otherwise, to the Partnership or to any other Partner
for any error
of judgment or for any mistakes of fact or law or for anything
which it may do
or refrain from doing hereafter in connection with the business and
affairs of
the Partnership except (i) in the case of fraud or willful
misconduct (such as
an intentional breach of fiduciary duty or an intentional breach of
this
Agreement), and (ii) for other breaches of this Agreement, but the
liability of
the General Partner under this clause (ii) shall be limited to its
interest in
the Partnership as more particularly provided for in Section 9.9
hereof. The
General Partner shall not have any personal liability for the
return of any
Limited Partner's capital.
(b) The Limited Partners expressly acknowledge that the General
Partner is acting on behalf of the Partnership, and that the
General Partner
shall not be liable for monetary damages for losses sustained,
liabilities
incurred, or benefits not derived by Limited Partners in connection
with such
decisions, provided that the General Partner has acted in good
faith.
(c) Subject to its obligations and duties as General Partner
set
forth herein, the General Partner may exercise any of the powers
granted to it
by this Agreement and perform any of the duties imposed upon it
hereunder either
directly or by or through its agents, as provided in Section 9.8
hereof.
(d) Any amendment, modification or repeal of this Section 9.4
or
any provision hereof shall be prospective only and shall not in any
way affect
the limitations on the General Partner's liability to the
Partnership and the
Limited Partners under this Section 9.4 as in effect immediately
prior to such
amendment, modification or repeal with respect to claims arising
from or
relating to matters occurring, in whole or in part, prior to such
amendment,
modification or repeal, regardless of when such claims may arise or
be asserted.
9.5 Indemnity.
(a) The Partnership shall indemnify and hold harmless any
Indemnitee from and against any loss or damage, including
reasonable legal fees
and expenses and court costs, incurred by it by reason of anything
it may do or
refrain from doing hereafter for and
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on behalf of the Partnership or in connection with its business or
affairs;
provided, however, that (i) the Partnership shall not be required
to indemnify
any Indemnitee for any loss or damage which it might incur as a
result of its
fraud or willful misconduct in the performance of its duties that
relate to the
Partnership and (ii) this indemnification shall not relieve the
General Partner
of its proportionate part of the obligations of the Partnership as
a Partner.
(b) The right of indemnification set forth in this Section 9.5
shall be in addition to any rights to which the Indemnitee may
otherwise be
entitled and shall inure to the benefit of the successors and
assigns or any
such person or entity. No Partner shall be personally liable with
respect to any
claim for indemnification pursuant to this Section 9.5, but such
claim shall be
satisfied solely out of assets of the Partnership. Notwithstanding
the foregoing
provisions of this Section 9.5, the General Partner shall be
entitled to
reimbursement by the Partnership, and to seek recovery for such
obligation from
the assets of the Partnership, for any amounts paid by the General
Partner or
the Trust in satisfaction of indemnification obligations owed by
the General
Partner or the Trust to present or former trustees, directors,
officers or
shareholders of the General Partner or the Trust or its
predecessors, as may be
provided for in or pursuant to the Declaration of Trust and By-Laws
of the
Trust, regardless of whether such Persons were acting on behalf of
the
Partnership. The General Partner may cause the Partnership to pay
directly out
of Partnership assets such amounts owed by the General Partner or
the Trust.
(c) Reasonable expenses incurred by an Indemnitee who is a
party
to a proceeding may be paid or reimbursed by the Partnership in
advance of the
final disposition of the proceeding upon receipt by the Partnership
of (i) a
written affirmation by the Indemnitee of the Indemnitee's good
faith belief that
the standard of conduct necessary for indemnification by the
Partnership as
authorized in this Section 9.5 has been met, and (ii) a written
undertaking by
or on behalf of the Indemnitee to repay the amount if it shall
ultimately be
determined upon entry of a final judgment by a court having
competent
jurisdiction that the standard of conduct has not been met.
(d) The Partnership may purchase and maintain insurance, on
behalf of any Indemnitee, including trustee, director and officer
insurance for
the Partnership, the General Partner and the Trust as the sole
shareholder of
the General Partner, against any liability that may be asserted
against or
expenses that may be incurred by such Person in connection with
the
Partnership's, the General Partner's and the Trust's activities,
regardless of
whether the Partnership would have the power to indemnify such
Person against
such liability under the provisions of this Agreement.
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(e) For purposes of this Section 9.5, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an
employee
benefit plan whenever the performance by an Indemnitee of the
Indemnitee's
duties to the Partnership also imposes duties on, or otherwise
involves services
by, the Indemnitee to the plan or participants or beneficiaries of
the plan;
excise taxes assessed on the Indemnitee with respect to an employee
benefit plan
pursuant to applicable law shall constitute expenses within the
meaning of this
Section 9.5; and actions taken or omitted by the Indemnitee with
respect to an
employee benefit plan in the performance of the Indemnitee's duties
for a
purpose reasonably believed by the Indemnitee to be in the interest
of the
participants and beneficiaries of the plan shall be deemed to be
for a purpose
which is not opposed to the best interests of the Partnership.
(f) An Indemnitee shall not be denied indemnification in whole
or
in part under this Section 9.5 because the Indemnitee had an
interest in the
transaction with respect to which the indemnification applies if
the transaction
was otherwise permitted by the terms of this Agreement.
9.6 Other Activities of Partners and the Trust. Neither the
General
Partner nor the Trust shall, directly or indirectly, enter into or
conduct any
business, other than in connection with the ownership, acquisition
and
disposition of the Properties, Partnership Interests as a General
Partner or
Limited Partner, as the case may be, and the management of the
business of the
Partnership and the Trust, and such activities as are incidental
thereto;
provided, however, that the Trust, the General Partner or a wholly
owned
Subsidiary of the Trust or the General Partner may serve as a one
percent (1%)
general partner of Subsidiary Partnerships. Neither the General
Partner nor the
Trust shall own any assets other than Partnership Interests as a
General Partner
or Limited Partner of the Partnership, as the case may be, the one
percent (1%)
general partnership interest in each of the Subsidiary Partnerships
(which
interests may be held directly or through wholly owned subsidiaries
of the Trust
or the General Partner), and such bank accounts, similar
instruments and other
assets as it deems necessary to carry out its responsibilities
contemplated
under this Agreement and the Trust's Declaration of Trust, as
amended or
supplemented. Except as may otherwise be agreed to in writing or in
this
Agreement, each Limited Partner and its Affiliates, shall be free
to engage in,
to conduct or to participate in any busine
