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Exhibit 10.1
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GGP LIMITED PARTNERSHIP
SECOND AMENDED AND
RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GGP LIMITED PARTNERSHIP
THIS
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is
made
and entered into this 1st day of April, 1998, by and among the
undersigned
parties.
WITNESSETH:
WHEREAS, a Delaware limited partnership known as GGP Limited
Partnership
(the "Partnership") exists pursuant to that certain Amended and
Restated
Agreement of Limited Partnership dated as of July 27, 1993, as
amended by that
certain First Amendment thereto dated May 23, 1995, that certain
Second
Amendment thereto dated July 13, 1995, that certain Third
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Amendment thereto dated as of May 21, 1996, that certain Fourth
Amendment
thereto dated as of August 30, 1996, that certain Fifth Amendment
thereto dated
as of October 4, 1996, that certain Sixth Amendment thereto dated
as of November
27, 1996, that certain Seventh Amendment thereto dated as of
December 6, 1996,
that certain Eighth Amendment dated June 19, 1997, that certain
Ninth Amendment
dated August 8, 1997, that certain Tenth Amendment dated as of
September 8,
1997, that certain Eleventh Amendment dated as of September 11,
1997, that
certain Twelfth Amendment thereto dated October 15, 1997, that
certain
Thirteenth Amendment thereto dated October 23, 1997 and that
certain Fourteenth
Amendment thereto dated October 29, 1997 (collectively, the
"Initial Partnership
Agreement"), and the Delaware Revised Uniform Limited Partnership
Act;
WHEREAS, the parties hereto, being the general partner and a
majority in
interest of the limited partners of the Partnership desire to amend
and restate
the Initial Partnership Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and
agreements
herein contained and for other good and valuable consideration, the
receipt,
adequacy and sufficiency of which are hereby acknowledged, the
parties hereto,
intending legally to be bound, do hereby amend and restate the
Initial
Partnership Agreement to read as follows:
ARTICLE I
Definitions; Etc.
Definitions. Except as otherwise herein expressly provided, the
following
terms and phrases shall have the meanings set forth below:
"Accountants" shall mean the firm or firms of independent certified
public
accountants selected by the General Partner on behalf of the
Partnership and the
Property Partnerships to audit the books and records of the
Partnership and the
Property Partnerships and to prepare statements and reports in
connection
therewith.
"Acquisition Cost" shall have the meaning set forth in Section 4.1
hereof.
"Acquisition Project" shall mean Shopping Center Projects other
than
Development Projects (other than Shopping Center Projects located
on the
properties listed in Exhibit B).
"Act" shall mean the Revised Uniform Limited Partnership Act as
enacted in
the State of Delaware, and as the same may hereafter be amended
from time to
time.
"Additional Units" shall have the meaning set forth in Section 8.3
hereof.
"Additional Partner" shall have the meaning set forth in Section
8.3
hereof.
"Adjusted Capital
Account Deficit" shall mean, with respect to any Limited
Partner, the deficit balance, if any, in such Partner's Capital
Account as of
the end of any relevant fiscal year and after giving effect to the
following
adjustments:
credit to such Capital Account any amounts which such Partner is
obligated
or treated as obligated to restore with respect to any deficit
balance in such
Capital Account pursuant to Section 1.704-1(b)(2)(ii)(c) of the
Regulations, or
is deemed to be obligated to restore with respect to any deficit
balance
pursuant to the penultimate sentences of Sections 1.704-2(g)(1)
and
1.704-2(i)(5) of the Regulations; and
debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
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The foregoing definition of Adjusted Capital Account Deficit is
intended to
comply with the requirements of the alternate test for economic
effect contained
in Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be
interpreted
consistently therewith.
"Adjustment Date" shall have the meaning set forth in Section
4.3(a)
hereof.
"Administrative Expenses" shall mean (i) all administrative and
operating
costs and expenses incurred by the Partnership, (ii) all
administrative,
operating and other costs and expenses incurred by the Property
Partnerships,
which expenses are being assumed by the Partnership pursuant to
Section 6.1
hereof, (iii) those administrative costs and expenses of the
General Partner,
including salaries paid to officers of the General Partner and
accounting and
legal expenses undertaken by the General Partner on behalf or for
the benefit of
the Partnership, and (iv) to the extent not included in clause
(iii) above, REIT
Expenses.
"Affiliate" shall mean, with respect to any Partner (or as to any
other
Person the affiliates of whom are relevant for purposes of any of
the provisions
of this Agreement), (i) any member of the Immediate Family of such
Partner; (ii)
any trustee or beneficiary of a Partner; (iii) any legal
representative,
successor, or assignee of such Partner or any Person referred to in
the
preceding clauses (i) and (ii); (iv) any trustee of any trust for
the benefit of
such Partner or any Person referred to in the preceding clauses (i)
through
(iii); or (v) any Entity which directly or indirectly through one
or more
intermediaries, Controls, is Controlled by, or is under common
Control with,
such Partner or any Person referred to in the preceding clauses (i)
through
(iv).
"Agreement" shall mean this Second Amended and Restated Agreement
of
Limited Partnership, as originally executed and as amended,
modified,
supplemented or restated from time to time, as the context
requires.
"Audited Financial Statements" shall mean financial statements
(balance
sheet, statement of income, statement of partners' equity and
statement of cash
flows) prepared in accordance with generally accepted accounting
principles and
accompanied by an independent auditor's report containing (i) an
opinion
containing no material qualification and (ii) no explanatory
paragraph
disclosing information relating to material uncertainties (except
as to
litigation) or going concern issues.
"Bankruptcy" shall mean, with respect to any Partner or the
Partnership,
(i) the commencement by such Partner or the Partnership 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, (ii) an adjudication that such Partner or the
Partnership is
insolvent or bankrupt; (iii) the entry of an order for relief under
the federal
Bankruptcy Code with respect to such Partner or the Partnership,
(iv) the filing
of any such petition or the commencement of any such case or
proceeding against
such Partner or the Partnership, unless such petition and the case
or proceeding
initiated thereby are dismissed within ninety (90) days from the
date of such
filing, (v) the filing of an answer by such Partner or the
Partnership admitting
the allegations of any such petition, (vi) the appointment of a
trustee,
receiver of custodian for all or substantially all of the assets of
such Partner
or the Partnership 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 or the
Partnership, (vii)
the insolvency of such Partner or the Partnership or the execution
by such
Partner or the Partnership of a general assignment for the benefit
of creditors,
(viii) the convening by such Partner or the Partnership of a
meeting of its
creditors, or any class thereof, for purposes of effecting a
moratorium upon or
extension or composition of its debts, (ix) the
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failure of such Partner or the Partnership to pay its debts as they
mature, (x)
the levy, attachment, execution or other seizure of substantially
all of the
assets of such Partner or the Partnership where such seizure is not
discharged
within thirty (30) days thereafter, or (xi) the admission by such
Partner or the
Partnership in writing of its inability to pay its debts as they
mature or that
it is generally not paying its debts as they become due.
"Bucksbaum Limited Partners" shall mean M.B. Capital Partners III
and its
successors and assigns.
"Bucksbaum Rights Agreement" shall mean that certain Rights
Agreement dated
as of July 27, 1993, among the General Partner and certain
predecessors of the
Bucksbaum Limited Partners.
"Capital Account" shall mean, with respect to any Partner, the
separate
"book" account which the Partnership shall establish and maintain
for such
Partner in accordance with Section 704(b) of the Code and
Section
1.704-1(b)(2)(iv) of the Regulations and such other provisions of
Section
1.704-1(b) of the Regulations that must be complied with in order
for the
Capital Accounts to be determined in accordance with the provisions
of said
Regulations. In furtherance of the foregoing, the Capital Accounts
shall be
maintained in compliance with Section 1.704-1(b)(2)(iv) of the
Regulations; and
the provisions hereof shall be interpreted and applied in a manner
consistent
therewith. In the event that any Units are transferred in
accordance with the
terms of this Agreement, the Capital Account, at the time of the
transfer, of
the transferor attributable to the transferred Units shall carry
over to the
transferee.
"Capital Contribution" shall mean, with respect to any Partner, the
amount
of money and the initial Gross Asset Value of any property other
than money
contributed to the Partnership with respect to the Units held by
such Partner
(net of liabilities to which such property is subject).
"Certificate" shall mean the Certificate of Limited Partnership
establishing the Partnership, as filed with the office of the
Delaware Secretary
of State, as it may be amended from time to time in accordance with
the terms of
this Agreement and the Act.
"Charter" shall mean the corporate charter of the General Partner,
as filed
with the office of the Delaware Secretary of State, as it may be
amended from
time to time.
"Closing Price" on any date shall mean the last sale price, regular
way,
or, in case no such sale takes place on such day, the average of
the closing bid
and asked prices, regular way, in either case as reported in the
principal
consolidated transaction reporting system with respect to
securities listed or
admitted to trading on the New York Stock Exchange or, if the
Common Stock is
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 Stock is listed or admitted to trading or, if the Common
Stock is not
listed or admitted to trading on any national securities exchange,
the last
quoted price, or if not so quoted, the average of the high bid and
low asked
prices in the over-the-counter market, as reported by the National
Association
of Securities Dealers, Inc. Automated Quotations System or, if such
system is no
longer in use, the principal other automated quotations system that
may then be
in use or, if the Common Stock is not quoted by any such
organization, the
average of the closing bid and asked prices as furnished by a
professional
market maker making a market in the Common Stock as such person is
selected from
time to time by the Board of Directors of the General Partner.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
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"Common Stock" shall mean the shares of the common stock, par value
$.10
per share, of the General Partner.
"Consent of the Limited Partners" shall mean the written consent of
a
Majority-In-Interest of the Limited Partners (or other specified
group of
Limited Partners), which Consent shall be obtained prior to the
taking of any
action for which it is required by this Agreement and may be given
or withheld
by a Majority-In-Interest of the Limited Partners (or such
specified group of
Limited Partners), unless otherwise expressly provided herein, in
their sole and
absolute discretion.
"Contributed Funds" shall have the meaning set forth in Section
4.3(a)(ii)
hereof.
"Contributed Property" shall have the meaning set forth in Section
4.1
hereof.
"Contribution Agreements" shall mean all contribution and other
agreements
executed by the Partnership and/or the General Partner in
connection with the
issuance of Units.
"Contribution Date" shall have the meaning set forth in Section 8.3
hereof.
"Control" shall mean the ability, whether by the direct or
indirect
ownership of shares or other equity interests, by contract or
otherwise, to
elect a majority of the directors of a corporation, to select the
managing
partner of a partnership, or otherwise to select, or have the power
to remove
and then select, a majority of those persons exercising governing
authority over
an Entity. In the case of a limited partnership, the sole general
partner, all
of the general partners to the extent each has equal management
control and
authority, or the managing general partner or managing general
partners thereof
shall be deemed to have control of such partnership and, in the
case of a trust,
any trustee thereof or any Person having the right to select any
such trustee
shall be deemed to have control of such trust.
"Conversion Factor" shall mean 1.0. The Conversion Factor shall be
adjusted
in the event that the General Partner (i) declares or pays a
dividend on its
outstanding shares of Common Stock in shares of Common Stock or
makes a
distribution to all holders of its outstanding shares of Common
Stock in shares
of Common Stock, (ii) subdivides its outstanding shares of Common
Stock, or
(iii) combines its outstanding shares of Common Stock into a
smaller number of
shares. The Conversion Factor shall be adjusted by multiplying the
Conversion
Factor by a fraction, the numerator of which shall be the number of
shares of
Common Stock issued and outstanding on the record date for such
dividend,
distribution, subdivision or combination (assuming for such
purposes that such
dividend, distribution, subdivision or combination has occurred as
of such time)
and the denominator of which shall be the actual number of shares
of Common
Stock (determined without the above assumption) issued and
outstanding on the
record date for such dividend, distribution, subdivision or
combination. Any
adjustment to the Conversion Factor shall become effective
immediately after the
effective date of such event retroactive to the record date, if
any, for such
event.
"Current Per Share Market Price" shall mean, as of any date, the
average of
the Closing Price for the five consecutive Trading Days ending on
such date or
the average of the Closing Price for any other period of Trading
Days that the
General Partner deems appropriate with respect to any transaction
or other event
for which "Current Per Share Market Price" is determined (other
than a
redemption pursuant to any Rights Agreement unless otherwise
provided therein).
"Demand Notice" shall have the meaning set forth in Section 12.2
hereof.
"Depreciation" shall mean, with respect to any asset of the
Partnership for
any fiscal year or other period, the depreciation, depletion or
amortization, as
the case may be, allowed or
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allowable for Federal income tax purposes in respect of such asset
for such
fiscal year or other period; provided, however, that if there is a
difference
between the Gross Asset Value and the adjusted tax basis of such
asset,
Depreciation shall mean "book depreciation, depletion or
amortization" as
determined under Section 1.704-1(b)(2)(iv)(g)(3) of the
Regulations.
"Development Land" shall mean any vacant land suitable for
development as a
shopping center (other than the land described in Exhibit B).
"Development Project" shall mean any Shopping Center Project
developed or
constructed on Development Land.
"Entity" shall mean any general partnership, limited partnership,
limited
liability company, corporation, joint venture, trust, business
trust,
cooperative, association or other entity.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as
amended from time to time (or any corresponding provisions of
succeeding laws).
"Exercise Notice" shall have the meaning set forth in the Bucksbaum
Rights
Agreement.
"Foreign Owner" shall mean a foreign person or a person that is
directly or
indirectly owned, in whole or in part, by a foreign person as
determined in
accordance with Section 897(h)(4) of the Code and the Regulations
promulgated
thereunder.
"Funding Date" shall mean the date of consummation of any Funding
Loan,
offering of shares of Common Stock or other transaction pursuant to
which the
General Partner raises Required Funds.
"Funding Loan Proceeds" shall mean the net cash proceeds received
by the
General Partner in connection with any Funding Loan, after
deduction of all
costs and expenses incurred by the General Partner in connection
with such
Funding Loan.
"Funding Loan(s)" shall mean any borrowing or refinancing of
borrowings by
or on behalf of the General Partner from any lender for the purpose
of advancing
the Funding Loan Proceeds to the Partnership as a loan pursuant to
Section
4.3(a) hereof.
"GAAP" shall mean generally accepted accounting principles.
"General Partner" shall mean General Growth Properties, Inc., a
Delaware
corporation, its duly admitted successors and assigns and any other
Person who
is a general partner of the Partnership at the time of reference
thereto.
"General Partner Loan" shall have the meaning set forth in Section
4.3(a)
hereof.
"Gross Asset Value" shall mean, with respect to any asset of
the
Partnership, such asset's adjusted basis for Federal income tax
purposes, except
as follows:
(a)
the initial Gross Asset Value of any asset contributed by a Partner
to
the Partnership shall be (i) in the case of any asset heretofore
contributed to
the partnership, the gross fair market value ascribed thereto on
the books and
record of the Partnership and (ii) in the case of any other asset
hereafter
contributed by a Partner, the gross fair market value of such asset
as
determined under Article IV in the case of a contribution by the
General Partner
or under Article VIII in the case of a contribution by a Limited
Partner;
(b)
if the General Partner reasonably determines that an adjustment
is
necessary or appropriate to reflect the relative economic interests
of the
Partners, the Gross Asset Values of all Partnership assets shall be
adjusted to
equal their respective gross fair market values, as reasonably
determined by the
General Partner, as of the following times:
(i)
a Capital Contribution (other than a de minimis Capital
<PAGE>
Contribution) to the Partnership by a new or existing Partner as
consideration
for Units;
(ii)
the distribution by the Partnership to a Partner of more than a
de
minimis amount of Partnership property as consideration for the
redemption of
Units; and
(iii) the liquidation of the Partnership within the meaning of
Section
1.704-1(b)(2)(ii)(g) of the Regulations;
(c)
the Gross Asset Values of Partnership assets distributed to any
Partner
shall be the gross fair market values of such assets (taking
Section 7701(g) of
the Code into account) as reasonably determined by the General
Partner as of the
date of distribution; and
(d)
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 Sections 734(b) or 743(b) of the Code, but only to the
extent that
such adjustments are taken into account in determining Capital
Accounts pursuant
to Section 1.704-1(b)(2)(iv)(m) of the Regulations (See Exhibit C);
provided,
however, that Gross Asset Values shall not be adjusted pursuant to
this
paragraph to the extent that the General Partner reasonably
determines that an
adjustment pursuant to paragraph (b) above is necessary or
appropriate in
connection with a transaction that would otherwise result in an
adjustment
pursuant to this paragraph (d).
At all times, Gross Asset Values shall be adjusted by any
Depreciation taken
into account with respect to the Partnership's assets for purposes
of computing
Net Income and Net Loss. Any adjustment to the Gross Asset Values
of Partnership
property shall require an adjustment to the Partners' Capital
Accounts; as for
the manner in which such adjustments are allocated to the Capital
Accounts, see
paragraph (c) of the definition of Net Income and Net Loss in the
case of
adjustment by Depreciation, and paragraph (d) of said definition in
all other
cases.
"Immediate Family" shall mean, with respect to any Person, such
Person's
spouse, parents, parents-in-law, descendants, nephews, nieces,
brothers,
sisters, brothers-in-law, sisters-in-law and children-in-law.
"Incentive Option" means an option to purchase Common Stock granted
under
the Stock Incentive Plan.
"Incentive Option Agreement" means the form of Incentive Option
Agreement
to be used under the Stock Incentive Plan.
"Initial Partnership Agreement" shall have the meaning set forth in
the
preliminary recitals hereto.
"Lien" shall mean any liens, security interests, mortgages, deeds
of trust,
charges, 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 Representatives" shall have the meaning set forth
in
Section 6.11 hereof.
"Limited Partners" shall mean the Persons listed under the caption
"Limited
Partners" on Exhibit A hereto, their permitted successors or
assigns or any
Person who, at the time of reference thereto, is a limited partner
of the
Partnership.
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"Liquidating Trustee" shall mean such individual or Entity as is
selected
as the Liquidating Trustee hereunder by the General Partner, which
individual or
Entity may include an Affiliate of the General Partner, provided
such
Liquidating Trustee agrees in writing to be bound by the terms of
this
Agreement. The Liquidating Trustee shall be empowered to give and
receive
notices, reports and payments in connection with the dissolution,
liquidation
and/or winding-up of the Partnership and shall hold and exercise
such other
rights and powers as are necessary or required to permit all
parties to deal
with the Liquidating Trustee in connection with the dissolution,
liquidation
and/or winding-up of the Partnership.
"Major Decisions" shall have the meaning set forth in Section 6.3
hereof.
"Majority-In-Interest of the Limited Partners" shall mean
Limited
Partner(s) (or specified group of Limited Partners) who hold in the
aggregate
more than fifty percent (50%) of the Percentage Interests then
allocable to and
held by the Limited Partners (or such specified group of Limited
Partners), as a
class (excluding any Units held by the General Partner or any
Affiliate of the
General Partner other than the existing Limited Partners, their
Affiliates and
their successors and assigns, who shall not be excluded).
"
Management Agreement" shall mean a property management agreement
with
respect to the property management of each Property entered into
(a) with
respect to any Property in which the Partnership directly holds or
acquires
ownership of a fee or leasehold interest, between the Partnership,
as owner, and
the Property Manager, or such other property manager as the General
Partner
shall engage, as manager, and (b) with respect to all Properties
other than
those described in (a) above, between each Property Partnership, as
owner, and
the Property Manager, or such other property manager as the General
Partner
shall engage, as such agreement may be amended, modified or
supplemented from
time to time.
"Minimum Gain Attributable to Partner Nonrecourse Debt" shall mean
"partner
nonrecourse debt minimum gain" as determined in accordance with
Regulation
Section 1.704-2(i)(2).
"Net
Financing Proceeds" shall mean the cash proceeds received by
the
Partnership in connection with any borrowing or refinancing of
borrowing by or
on behalf of the Partnership or by or on behalf of any Property
Partnership
(whether or not secured), after deduction of all costs and expenses
incurred by
the Partnership or the Property Partnership in connection with such
borrowing,
and after deduction of that portion of such proceeds used to repay
any other
indebtedness of the Partnership or Property Partnerships, or any
interest or
premium thereon.
"Net
Income or Net Loss" shall mean, for each fiscal year or other
applicable period, an amount equal to the Partnership's net income
or loss for
such year or period as determined for federal income tax purposes
by the
Accountants, determined in accordance with Section 703(a) of the
Code (for this
purpose, all items of income, gain, loss or deduction required to
be stated
separately pursuant to Section 703(a) of the Code shall be included
in taxable
income or loss), with the following adjustments: (a) by including
as an item of
gross income any tax-exempt income received by the Partnership; (b)
by treating
as a deductible expense any expenditure of the Partnership
described in Section
705(a)(2)(B) of the Code (including amounts paid or incurred to
organize the
Partnership (unless an election is made pursuant to Code Section
709(b)) or to
promote the sale of interests in the Partnership and by treating
deductions for
any losses incurred in connection with the sale or exchange of
Partnership
property disallowed pursuant to
<PAGE>
Section 267(a)(1) or Section 707(b) of the Code as expenditures
described in
Section 705(a)(2)(B) of the Code); (c) in lieu of depreciation,
depletion,
amortization, and other cost recovery deductions taken into account
in computing
total income or loss, there shall be taken into account
Depreciation; (d) gain
or loss resulting from any disposition of Partnership property 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 such property
rather than its
adjusted tax basis; and (e) in the event of an adjustment of the
Gross Asset
Value of any Partnership asset which requires that the Capital
Accounts of the
Partnership be adjusted pursuant to Regulation Section
1.704-1(b)(2)(iv)(e), (f)
and (m), the amount of such adjustment is to be taken into account
as additional
Net Income or Net Loss pursuant to Exhibit C.
"Net
Operating Cash Flow" shall mean, with respect to any fiscal period
of
the Partnership, the excess, if any, of "Receipts" over
"Expenditures." For
purposes hereof, the term "Receipts" means the sum of all cash
receipts of the
Partnership from all sources for such period, including Net Sale
Proceeds and
Net Financing Proceeds but excluding Capital Contributions, and any
amounts held
as reserves as of the last day of such period which the General
Partner
reasonably deems to be in excess of necessary reserves as
determined below. The
term "Expenditures" means the sum of (a) all cash expenses or
expenditures of
the Partnership for such period, (b) the amount of all payments of
principal and
interest on account of any indebtedness of the Partnership
including payments of
principal and interest on account of General Partner Loans, or
amounts due on
such indebtedness during such period (in the case of clauses (a)
and (b),
excluding expenses or expenditures paid from previously established
reserves or
deducted in computing Net Financing Proceeds or Net Sales
Proceeds), and (c)
such additional cash reserves as of the last day of such period as
the General
Partner deems necessary for any capital or operating expenditure
permitted
hereunder.
"Net
Sale Proceeds" means the cash proceeds received by the Partnership
in
connection with a sale of any asset by or on behalf of the
Partnership or by or
on behalf of a Property Partnership after deduction of any costs or
expenses
incurred by the Partnership or a Property Partnership, or payable
specifically
out of the proceeds of such sale (including, without limitation,
any repayment
of any indebtedness required to be repaid as a result of such sale
or which the
General Partner elects to repay out of the proceeds of such sale,
together with
accrued interest and premium, if any, thereon and any sales
commissions or other
costs and expenses due and payable to any Person in connection with
a sale,
including to a Partner or its Affiliates).
"Nonrecourse Deductions" shall have the meaning set forth in
Sections
1.704-2(b)(1) and (c) of the Regulations.
"Nonrecourse Liabilities" shall have the meaning set forth in
Section
1.704-2(b)(3) of the Regulations.
"Offered Units" shall have the meaning set forth in the Bucksbaum
Rights
Agreement.
"Partner Nonrecourse Deductions" shall have the meaning set forth
in
Section 1.704-2(i)(2) of the Regulations.
"Partners" shall mean the General Partner and the Limited Partners,
their
duly admitted successors or assigns or any Person who is a partner
of the
Partnership at the time of reference thereto.
"Partnership" shall have the meaning set forth in the preliminary
recitals
hereto.
"Partnership Minimum Gain" shall have the meaning set forth in
Section
1.704-2(b)(2) of the Regulations.
<PAGE>
"Partnership Record Date" shall mean the record date established by
the
General Partner for a distribution of Net Operating Cash Flow
pursuant to
Section 5.2 hereof, which record date shall be the same as the
record date
established by the General Partner for the distribution to its
stockholders of
some or all of its share of such distribution.
"Percentage Interest" shall mean, with respect to any Partner at
any time,
the percentage ownership interest of such Partner in the
Partnership at such
time, which percentage interest shall be equal to the quotient of
the number of
Units owned by such Partner at such time divided by the aggregate
number of
issued and outstanding Units at such time. The Percentage Interest
of each
Partner on the date hereof is set forth opposite its name on
Exhibit A.
"Person" shall mean any individual or Entity.
"Precontribution Gain" shall have the meaning set forth in Exhibit
C.
"Prime Rate" shall mean the prime rate announced from time to time
by Wells
Fargo Bank, N.A. or any successor thereof.
"Property" shall mean any Shopping Center Project in which the
Partnership
or any Property Partnership, directly or indirectly, acquires
ownership of a fee
or leasehold interest.
"Property Manager" shall mean General Growth Management, Inc., a
Delaware
corporation, or its permitted successors or assigns.
"Property Partnership" shall mean and include any partnership,
limited
liability company or other Entity in which the Partnership directly
or
indirectly is or becomes a partner, member or other equity
participant and which
has been or is formed for the purpose of directly or indirectly
acquiring,
developing or owning a Property or a proposed Property.
"Property Partnership Interests" shall mean and include the
interest of the
Partnership as a partner, member or other equity participant in any
Property
Partnership.
"Qualified Individual" shall have the meaning set forth in Section
12.2
hereof.
"Regulations" shall mean the final, temporary or proposed Income
Tax
Regulations promulgated under the Code, as such regulations may be
amended from
time to time (including corresponding provisions of succeeding
regulations).
"Regulatory Allocations" shall have the meaning set forth in
Exhibit C.
"REIT" shall mean a real estate investment trust as defined in
Section 856
of the Code.
"REIT Expenses" shall mean (i) costs and expenses relating to the
formation
and continuity of existence of the General Partner and its
subsidiaries (which
subsidiaries shall, for purposes of this definition, be included
within the
definition of General Partner), including taxes, fees and
assessments associated
therewith, any and all costs, expenses or fees payable to any
director or
trustee of the General Partner or such subsidiaries, (ii) costs and
expenses
relating to any offer or registration of securities by the General
Partner and
all statements, reports, fees and expenses incidental thereto,
including
underwriting discounts and selling commissions applicable to any
such offer of
securities, (iii) costs and expenses associated with the
preparation and filing
of any periodic reports by the General Partner under federal, state
or local
laws or regulations, including filings with the SEC, (iv) costs and
expenses
associated with compliance by the General Partner with laws, rules
and
regulations promulgated by any regulatory body, including the SEC,
and (v) all
other operating or administrative costs of the General Partner
incurred in the
ordinary course of its business on behalf of the Partnership.
"REIT Requirements" shall have the meaning set forth in Section 5.2
hereof.
"Requesting Party" shall have the meaning set forth in Section 12.2
hereof.
"Required Funds" shall have the meaning set forth in Section 4.3
hereof.
<PAGE>
"Responding Party" shall have the meaning set forth in Section 12.2
hereof.
"Restricted Period" shall have the meaning set forth in Section 9.5
hereof.
"Restrictions Lapse Date" shall have the meaning set forth in
Section 9.5
hereof.
"Rights" shall mean "Rights", "Redemption Rights" or other similar
rights
as defined in the Rights Agreements.
"Rights Agreements" shall mean the Bucksbaum Rights Agreement and
those
certain Redemption Rights Agreements entered into by the
Partnership, the
General Partner and certain Limited Partners or their predecessors
in interest
in connection with the issuance of Units to such Limited Partners
or such
predecessors in interest.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Section 704(c) Tax Items" shall have the meaning set forth in
Exhibit C.
"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.
"Stock Incentive Plan" means the General Partner's 1993 Stock
Incentive
Plan, as amended.
"Substituted Limited Partner" shall have the meaning set forth in
Section
8.2 hereof.
"Tax
Items" shall have the meaning set forth in Exhibit C.
"Trading Day" shall mean a day on which the principal national
securities
exchange on which the Common Stock is listed or admitted to trading
is open for
the transaction of business or, if the Common Stock is 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.
"Units" shall mean, with respect to any Partner, the partnership
units
owned by such Partner in the Partnership. The number of Units held
by each
Partner on the date hereof is set forth opposite its name on
Exhibit A.
Exhibits, Etc. References to an "Exhibit" or to a "Schedule" are,
unless
otherwise specified, to one of the Exhibits or Schedules attached
to this
Agreement, and references to an "Article" or a "Section" are,
unless otherwise
specified, to one of the Articles or Sections of this Agreement.
Each Exhibit
and Schedule attached hereto and referred to herein is hereby
incorporated
herein by reference.
ARTICLE II
Continuation
Continuation. The parties hereto do hereby continue the Partnership
as a
limited partnership pursuant to the provisions of the Act, and all
other
pertinent laws of the State of Delaware, for the purposes and upon
the terms and
conditions hereinafter set forth. The Partners agree that the
rights and
liabilities of the Partners shall be as provided in the Act except
as otherwise
herein expressly provided. The General Partner shall cause such
notices,
instruments, documents, or certificates as may be required by
applicable law or
which may be necessary to enable the Partnership to conduct its
business and to
own its properties in the Partnership name to be filed or recorded
in all
appropriate public offices.
Name. The business of the Partnership shall continue to be
conducted under
the name of "GGP Limited Partnership" or such other name as the
General Partner
may select, and
<PAGE>
all transactions of the Partnership, to the extent permitted by
applicable law,
shall be carried on and completed in such name.
Character of the Business. The purpose of the Partnership shall be
to
acquire, hold, own, develop, construct, improve, maintain, operate,
sell, lease,
transfer, encumber, convey, exchange, and otherwise dispose of or
deal with
Properties; to acquire, hold, own, develop, construct, improve,
maintain,
operate, sell, lease, transfer, encumber, convey, exchange, and
otherwise
dispose of or deal with real and personal property of all kinds; to
exercise all
of the powers of a partner, member or other equity participant in
Property
Partnerships; to acquire, own, deal with and dispose of Property
Partnership
Interests; to undertake such other activities as may be necessary,
advisable,
desirable or convenient to the business of the Partnership, and to
engage in
such other ancillary activities as shall be necessary or desirable
to effectuate
the foregoing purposes. The Partnership shall have all powers
necessary or
desirable to accomplish the purposes enumerated. In connection with
and without
limiting the foregoing, but subject to all of the terms, covenants,
conditions
and limitations contained in this Agreement and any other agreement
entered into
by the Partnership, the Partnership shall have full power and
authority,
directly or through its interest in Property Partnerships, to enter
into,
perform, and carry out contracts of any kind, to borrow money and
to issue
evidences of indebtedness, whether or not secured by mortgage,
trust deed,
pledge or other lien, and, directly or indirectly, to acquire and
construct
additional Properties necessary or useful in connection with its
business.
Location of the Principal Place of Business. The location of the
principal
place of business of the Partnership shall be at 55 West Monroe
Street, Suite
3100, Chicago, Illinois 60603, or such other location as shall be
selected from
time to time by the General Partner in its sole discretion.
Registered Agent and Registered Office. The Registered Agent of
the
Partnership shall be Prentice-Hall Corporation System, Inc. or such
other Person
as the General Partner may select in its sole discretion. The
Registered Office
of the Partnership shall be 32 Loockerman Square, Suite L-100,
Dover, Delaware
19901 or such other location as the General Partner may select in
its sole and
absolute discretion.
ARTICLE III
Term
Commencement. The Partnership heretofore commenced business as a
limited
partnership upon the filing of the Certificate with the Secretary
of State of
the State of Delaware.
Dissolution. The Partnership shall continue until dissolved upon
the
occurrence of the earliest of the following events:
The
dissolution, termination, retirement or Bankruptcy of the
General
Partner unless the Partnership is continued as provided in Section
8.1 hereof;
The
election to dissolve the Partnership made in writing by the
General
Partner with the Consent of the Limited Partners;
The
sale or other disposition of all or substantially all the assets of
the
Partnership unless the General Partner, with the Consent of the
Limited
Partners, elects to continue the Partnership business for the
purpose of the
receipt and the collection of indebtedness or the collection of
any
<PAGE>
other consideration to be received in exchange for the assets of
the Partnership
(which activities shall be deemed to be part of the winding up of
the affairs of
the Partnership);
Dissolution required by operation of law; or
December 31, 2050.
ARTICLE IV
Contributions to Capital
General Partner Capital Contribution. The General Partner has
heretofore
contributed to the Partnership as its Capital Contribution the cash
and property
reflected in the Partnership's books and records as having been
contributed by
it. The gross fair market value of any property contributed by the
General
Partner to the Partnership ("Contributed Property") after the date
hereof, other
than money, shall be the acquisition cost of such Contributed
Property (the
"Acquisition Cost"). The Acquisition Cost also shall include any
costs and
expenses incurred by the General Partner in connection with such
acquisition or
contribution; provided, however, that in the event the Acquisition
Cost of
Contributed Property is financed by any borrowings by the General
Partner, the
Partnership shall assume any such obligations of the General
Partner
concurrently with the contribution of such property to the
Partnership or, if
impossible, shall obligate itself to the General Partner in an
amount and on
terms equal to such indebtedness, and the Acquisition Cost shall be
reduced
appropriately. If the General Partner contributes Contributed
Property to the
Partnership, the General Partner shall be deemed to have
contributed to the
Partnership as Contributed Funds pursuant to Section 4.3(a)(ii)
hereof an amount
equal to the Acquisition Cost of such Contributed Property.
Limited Partner Capital Contributions. Each Limited Partner has
heretofore
contributed, or is deemed to have contributed, as its initial
Capital
Contribution to the capital of the Partnership, the property
reflected in the
Partnership's books and records as having been contributed by
it.
Additional Funds.
If
the General Partner determines that funds are required or
desired
("Required Funds") for any proper Partnership purpose in excess of
the funds
anticipated to be available and the General Partner is not able or
does not deem
it advisable to cause the Partnership to borrow such funds, the
General Partner
shall either:
to
the extent the General Partner borrows all or any portion of
the
Required Funds by entering into a Funding Loan, the General Partner
shall, on
the Funding Date, lend (the "General Partner Loan") to the
Partnership the
Funding Loan Proceeds on the same terms and conditions, including
interest rate,
repayment schedule and costs and expenses, as shall be applicable
with respect
to or incurred in connection with the Funding Loan; or
to
the extent the General Partner issues shares of its Common Stock
or
other securities (other than notes issued in connection with a
Funding Loan) to
raise the Required Funds, the General Partner shall, on the Funding
Date,
contribute to the Partnership as an additional Capital Contribution
the amount
of the Required Funds so raised ("Contributed Funds")
(hereinafter,
<PAGE>
each Funding Date on which the General Partner so contributes
Contributed Funds
pursuant to this subparagraph (ii) is referred to as an "Adjustment
Date"). In
the event the General Partner advances Required Funds to the
Partnership as
Contributed Funds pursuant to this subparagraph (ii), the
Partnership shall
assume and pay (or reflect on its books as additional Contributed
Funds) the
expenses (including any applicable underwriting discounts) incurred
by the
General Partner in connection with raising such Contributed Funds
through a
public offering of its securities or otherwise.
Effective on each Adjustment Date, the Partnership shall issue to
the
General Partner the number of additional Units equal to the product
of (i) the
number of shares of Common Stock issued by the General Partner in
connection
with obtaining the Contributed Funds and (ii) the Conversion
Factor. The General
Partner promptly shall provide the Limited Partners with notice of
the issuance
of any such Units.
Stock Incentive Plan. If at any time or from time to time Incentive
Options
granted in connection with the General Partner's Stock Incentive
Plan are
exercised in accordance with the terms of the Incentive Option
Agreement:
the
General Partner shall, as soon as practicable after such
exercise,
contribute to the capital of the Partnership an amount equal to the
exercise
price paid to the General Partner by such exercising party in
connection with
the exercise of the Incentive Option; and
the
Partnership shall issue to the General Partner, with respect to
any
exercise of Incentive Options, the number of additional Units equal
to the
product of (i) the number of shares of Common Stock issued by the
General
Partner in connection with such exercise of Incentive Options and
(ii) the
Conversion Factor.
No
Third Party Beneficiary. No creditor or other third party
having
dealings with the Partnership shall have the right to enforce the
right or
obligation of any Partner to make Capital Contributions or loans or
to pursue
any other right or remedy hereunder or at law or in equity, it
being understood
and agreed that the provisions of this Agreement shall be solely
for the benefit
of, and may be enforced solely by, the parties hereto and their
respective
successors and assigns. None of the rights or obligations of the
Partners herein
set forth to make Capital Contributions or loans to the Partnership
shall be
deemed an asset of the Partnership for any purpose by any creditor
or other
third party, nor may such rights or obligations be sold,
transferred or assigned
by the Partnership or pledged or encumbered by the Partnership to
secure any
debt or other obligation of the Partnership or of any of the
Partners.
No
Interest; No Return. No Partner shall be entitled to interest on
its
Capital Contribution or on such Partner's Capital Account. Except
as provided
herein or by law, no Partner shall have any right to demand or
receive the
return of its Capital Contribution from the Partnership.
ARTICLE V
Allocations and Other Tax and Accounting Matters
Allocations. The Net Income, Net Loss and/or other Partnership
items shall
be allocated pursuant to the provisions of Exhibit C hereto.
Distributions.
<PAGE>
(a)
The General Partner shall, from time to time as determined by
the
General Partner (but in any event not less frequently than
quarterly), cause the
Partnership to distribute all or a portion of Net Operating Cash
Flow to the
Partners who are such on the relevant Partnership Record Date in
such amounts as
the General Partner shall determine; provided, however, that all
such
distributions shall be made pro rata in accordance with the
Partners' then
Percentage Interests; and provided further, that notwithstanding
the foregoing,
the General Partner shall use its best efforts to cause the
Partnership to
distribute sufficient amounts to enable the General Partner to pay
shareholder
dividends that will (a) satisfy the requirements for qualifying as
a REIT under
the Code and Regulations ("REIT Requirements"), and (b) avoid any
federal income
or excise tax liability of the General Partner. (b) In no event may
a Limited
Partner receive a distribution of Net Operating Cash Flow in
respect of a Unit
that such Partner has exchanged for a share of Common Stock
pursuant to a Rights
Agreement on or prior to the relevant Partnership Record Date;
rather, all such
distributions shall be made to the General Partner. Upon the
receipt by the
General Partner of each Exercise Notice pursuant to which one or
more Limited
Partners exercise Rights in accordance with the provisions of the
Bucksbaum
Rights Agreement, the General Partner shall, unless the General
Partner is
required or elects only to issue Common Stock to such exercising
Limited
Partners, cause the Partnership to distribute to the Partners, pro
rata in
accordance with their Percentage Interests on the date of delivery
of such
Exercise Notice, all (or such lesser portion as the General Partner
shall
reasonably determine to be prudent under the circumstances) of Net
Operating
Cash Flow, which distribution shall be made prior to the closing of
the purchase
and sale of the Offered Units specified in such Exercise
Notice.
Books of Account. At all times during the continuance of the
Partnership,
the General Partner shall maintain or cause to be maintained full,
true,
complete and correct books of account in accordance with generally
accepted
accounting principles wherein shall be entered particulars of all
monies, goods
or effects belonging to or owing to or by the Partnership, or paid,
received,
sold or purchased in the course of the Partnership's business, and
all of such
other transactions, matters and things relating to the business of
the
Partnership as are usually entered in books of account kept by
persons engaged
in a business of a like kind and character. In addition, the
Partnership shall
keep all records as required to be kept pursuant to the Act. The
books and
records of account shall be kept at the principal office of the
Partnership, and
each Partner shall at all reasonable times have access to such
books and records
and the right to inspect the same.
Reports. The General Partner shall cause to be submitted to the
Limited
Partners, promptly upon receipt of the same from the Accountants
and in no event
later than April 1 of each year, copies of Audited Financial
Statements prepared
on a consolidated basis for the Partnership, the General Partner
and the
Property Partnerships, together with the repor
