<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 10, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
GENERAL GROWTH PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 42-1283895
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
55 WEST MONROE STREET -- SUITE 3100
CHICAGO, ILLINOIS 60603
(312) 551-5000
(Address, including zip code and telephone number, including area code, of
registrant's principal executive offices)
MR. MATTHEW BUCKSBAUM
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GENERAL GROWTH PROPERTIES, INC.
55 WEST MONROE STREET -- SUITE 3100
CHICAGO, ILLINOIS 60603
(312) 551-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
with copies to:
MARSHALL E. EISENBERG, ESQ.
NEAL, GERBER & EISENBERG
TWO NORTH LASALLE STREET
CHICAGO, ILLINOIS 60602
(312) 269-8000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the Registration Statement becomes effective.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.10 per share...... 772,936 $31.19 $24,107,874 $7,305
============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and
based upon the average of the high and low prices of the Common Stock as
reported on the New York Stock Exchange on March 5, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 7, 1997
PROSPECTUS
772,936 SHARES
GENERAL GROWTH PROPERTIES, INC.
COMMON STOCK
(PAR VALUE $.10 PER SHARE)
This Prospectus relates to the possible issuance by General Growth
Properties, Inc., a Delaware corporation (the "Company"), of up to 772,936
shares (the "Redemption Shares") of common stock, par value $.10 per share (the
"Common Stock"), of the Company if and to the extent that the holders of up to
772,936 limited partnership units (the "Units") in GGP Limited Partnership, a
Delaware limited partnership (the "Operating Partnership"), of which the Company
is the sole general partner, tender such Units for redemption. The Company
currently owns a 62.9% interest in the Operating Partnership. Such Units were
issued in connection with the July 1995 transaction pursuant to which the owners
of the real and personal property comprising the Piedmont Mall in Danville,
Virginia contributed such property to the Operating Partnership in exchange for
Units, cash and the Operating Partnership's assumption of certain liabilities of
such contributors (the "Piedmont Transaction"). In connection with the Piedmont
Transaction, the Company, the Operating Partnership and such contributors
entered into the Redemption Rights Agreement, dated July 13, 1995 (the
"Redemption Rights Agreement"), which sets forth the terms and conditions under
which the Units received by the contributors may be redeemed for cash, or, at
the election of the Company, in its sole and absolute discretion, Redemption
Shares. The Company has registered the Redemption Shares, as required under the
terms of the Redemption Rights Agreement, to provide the holders of the
Redemption Shares with freely tradeable securities, but the registration of such
shares does not necessarily mean that any of such shares will be issued by the
Company or offered or sold by the holders thereof.
The Company will not receive any cash proceeds from the issuance of the
Redemption Shares to holders of Units tendered for redemption; however, it will
acquire Units in the Operating Partnership in exchange for Redemption Shares
that the Company may issue to holders of Units pursuant to this Prospectus. With
each such acquisition, the Company's interest in the Operating Partnership will
increase.
The Company's Common Stock is listed on the New York Stock Exchange (the
"NYSE") under the symbol "GGP". The last reported sale price of the Common Stock
on the NYSE on March 5, 1997 was 31 1/4 per share.
The Redemption Shares are subject to certain restrictions on ownership
designed to preserve the Company's status as a real estate investment trust
("REIT") for Federal income tax purposes. See "Description of Common Stock."
SEE "REDEMPTION OF UNITS -- TAX CONSEQUENCES OF REDEMPTION" AND "-- POTENTIAL
CHANGE IN INVESTMENT UPON REDEMPTION OF UNITS" BEGINNING ON PAGE 10 OF THIS
PROSPECTUS FOR A DISCUSSION OF CERTAIN POTENTIALLY MATERIAL CONSEQUENCES
ASSOCIATED WITH A REDEMPTION OF UNITS.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
THE DATE OF THIS PROSPECTUS IS ___________ , 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the Commission, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 and at the Commission's regional offices at Seven World Trade Center,
Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Room of the Commission, 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. Such materials
also may be accessed electronically by means of the Commission's home page on
the Internet at http://www.sec.gov. The Company's Common Stock is listed on the
NYSE and such reports, proxy statements and other information also can be
inspected at the offices of the NYSE, 20 Broad Street, 17th Floor, New York, New
York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Act, with respect to the shares of
Common Stock offered hereby. This Prospectus, which constitutes a part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement, certain items of which are contained in schedules and
exhibits to the Registration Statement as permitted by the rules and regulations
of the Commission. Statements made in this Prospectus as to the contents of any
contract, agreement or other document referred to are not necessarily complete.
With respect to each such contract, agreement or other document filed as an
exhibit to the Registration Statement, reference is made to the exhibit for a
more complete description of the matter involved, and each such statement shall
be deemed qualified in its entirety by such reference. Items and information
omitted from this Prospectus but contained in the Registration Statement may be
inspected and copied at the Public Reference Room of the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated in this Prospectus by reference and are
made a part hereof:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
1995 (the "Company 10-K");
2. Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996 and September 30, 1996;
3. Current Report on Form 8-K dated January 3, 1996;
4. Current Report on Form 8-K dated January 5, 1996;
5. Current Report on Form 8-K/A dated March 5, 1996;
6. Current Report on Form 8-K dated July 16, 1996;
7. Current Report on Form 8-K dated July 17, 1996;
8. Current Report on Form 8-K dated December 19, 1996;
9. Current Report on Form 8-K dated January 16, 1997;
10. Current Report on Form 8-K/A dated February 18, 1997;
11. The portions of the Company's Proxy Statement for its 1996 Annual
Meeting of Stockholders that have been incorporated by reference into the
Company's 10-K; and
12. The description of the Company's Common Stock which is contained
in the Registration Statement on Form 8-A filed by the Company with the
Commission on January 12, 1993, pursuant to Section 12(b) of the Exchange
Act.
2
<PAGE> 4
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act from the date of this Prospectus and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Prospectus, except as so modified or
superseded. The Company will provide without charge to each person, including
any beneficial owner, to whom a copy of this Prospectus is delivered, upon
written or oral request of such person, a copy of any or all of the information
that has been incorporated by reference in this Prospectus (excluding exhibits
to such information which are not specifically incorporated by reference into
such information). Requests for such information should be directed to General
Growth Properties, Inc., 55 West Monroe Street -- Suite 3100, Chicago, Illinois
60603, Attention: Director of Investor Relations, Telephone (312) 551-5000.
3
<PAGE> 5
THE COMPANY
The Company is a self-managed real estate investment trust which, through
its general partnership interest in the Operating Partnership, owns, operates,
acquires and develops enclosed mall shopping centers located throughout the
United States. The Company and the Operating Partnership together own 100% of 30
enclosed mall shopping centers and 50% of one enclosed mall shopping center
containing an aggregate of approximately 21 million square feet of gross retail
space, including anchors, freestanding stores and mall tenant areas ("GLA"). On
December 22, 1995, the Company, through the Operating Partnership's ownership of
stock in GGP/Homart, Inc. acquired a 38.2% interest in substantially all of the
regional mall assets and liabilities that were owned by Homart Development Co.,
an indirect wholly-owned subsidiary of Sears, Roebuck & Co. GGP/Homart, Inc.
currently owns interests in 26 shopping centers which contain approximately 22.7
million square feet of GLA.
In order to maintain its qualification as a real estate investment trust (a
"REIT") for federal income tax purposes, the Company is required to distribute
at least 95% of its taxable income each year.
The Company is incorporated under the laws of the State of Delaware. Its
principal executive offices are located at 55 West Monroe Street -- Suite 3100,
Chicago, Illinois 60603, and its telephone number is (312) 551-5000.
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
Redemption Shares to holders of Units tendered for redemption; however, the
Company will acquire Units from such holders and thereby increase its interest
in the Operating Partnership.
CAPITAL STOCK
The authorized capital stock of the Company consists of 70,000,000 shares
of Common Stock, par value $.10 per share, and 5,000,000 shares of Preferred
Stock, par value $100 per share. The following summary description of the
capital stock of the Company does not purport to be complete and is qualified by
reference to the Company's Amended and Restated Certificate of Incorporation
(the "Certificate"), and the certificate of designation which will be filed with
the Commission in connection with any offering of Preferred Stock.
As of February 15, 1997, 30,789,185 shares of the Company's Common Stock
were issued and outstanding and none of the Company's Preferred Stock was issued
and outstanding. The Board of Directors is authorized to provide for the
issuance of shares of Preferred Stock in one or more series, to establish the
number of shares in each series and to fix the designation, powers, preferences
and rights of each such series and the qualifications, limitations or
restrictions thereof. The Company's Common Stock is listed on the NYSE under the
symbol "GGP".
DESCRIPTION OF COMMON STOCK
The holders of the Company's Common Stock are entitled to one vote per
share on all matters voted on by stockholders, including elections of directors,
and, except as otherwise required by law or provided in any resolution adopted
by the Board of Directors with respect to any series of preferred stock
establishing the designation, powers, preferences and rights of such series and
the qualifications, limitations and restrictions thereof, the holders of such
shares exclusively possess all voting power. The Certificate does not provide
for cumulative voting in the election of directors. Subject to any preferential
rights of any outstanding series of Preferred Stock, the holders of Common Stock
are entitled to such dividends as may be declared from time to time by the Board
of Directors from funds legally available therefor, and upon liquidation are
entitled to receive pro rata all assets of the Company available for
distribution to such holders. All shares of Common Stock offered hereby, upon
issuance to holders of Units tendered for redemption, will be fully paid and
nonassessable and the holders thereof will not have preemptive rights.
4
<PAGE> 6
RESTRICTIONS ON TRANSFER
For the Company to remain qualified as a REIT under the Internal Revenue
Code of 1986, as amended (the "Code"), not more than 50% in value of its
outstanding Common Stock and Preferred Stock (collectively, the "Capital Stock")
may be owned, directly or indirectly, by five or fewer individuals (as defined
in the Code) during the last half of a taxable year, the Capital Stock must be
beneficially owned (without regard to any rules of attribution of ownership) by
100 or more persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter taxable year and certain percentages of
the Company's gross income must be from particular activities. Because the Board
of Directors believes it is essential for the Company to continue to qualify as
a REIT, the Certificate limits the number of shares of Capital Stock that may be
owned by any stockholder (subject to certain exceptions) (the "Ownership
Limit").
The Ownership Limit provides that, subject to certain exceptions specified
in the Certificate, no stockholder (other than Martin Bucksbaum, Matthew
Bucksbaum, their families and related trusts (collectively, the "Bucksbaums")
and the International Business Machines Retirement Plan (the "IBM Retirement
Plan")) may own, or be deemed to own by virtue of the applicable attribution
provisions of the Code, more than the Ownership Limit. The Ownership Limit was
originally set at 6.5% of the outstanding Capital Stock, and was increased to
7.5% of the value of the outstanding Capital Stock as a result of legislation
passed in 1993. The Board of Directors is authorized to further increase the
Ownership Limit to not more than 9.8%. The Bucksbaums and the IBM Retirement
Plan are each permitted by the Certificate to exceed the Ownership Limit and
each of them currently exceeds such limit and may continue to do so. The
Ownership Limit provides that the Bucksbaums may acquire additional shares
pursuant to certain rights granted to them in connection with the Company's
initial public offering or from other sources so long as the acquisition does
not result in the five largest beneficial owners of Capital Stock holding more
than 50% of the outstanding Capital Stock. The Ownership Limit restricts the IBM
Retirement Plan from acquiring additional shares of Capital Stock so long as it
exceeds the Ownership Limit, except through stock splits or other pro rata
transactions that do not increase its percentage interest in the Company. The
Board of Directors may waive the Ownership Limit if presented with satisfactory
evidence that such ownership will not jeopardize the Company's status as a REIT.
As a condition of such waiver, the Board of Directors may require opinions of
counsel satisfactory to it and/or an undertaking from the applicant with respect
to preserving the REIT status of the Company. The Ownership Limit will not apply
if the Board of Directors and the holders of Capital Stock determine that it is
no longer in the best interests of the Company to attempt to qualify, or to
continue to qualify, as a REIT. If shares of Common Stock in excess of the
Ownership Limit, or shares which would cause the Company to be beneficially
owned by fewer than 100 persons, are issued or transferred to any person, such
issuance or transfer shall be null and void and the intended transferee will
acquire no rights to such shares.
The Certificate further provides that upon a transfer or other event that
results in a person owning (either directly or by virtue of the applicable
attribution rules) Capital Stock in excess of the applicable Ownership Limit
("Excess Shares"), such person (a "Prohibited Owner") will not acquire or retain
any rights or beneficial economic interest in such Excess Shares. Rather, the
Excess Shares will be automatically transferred to a person or entity
unaffiliated with and designated by the Company to serve as trustee (the
"Trustee") of a trust for the exclusive benefit of a charitable beneficiary (the
"Beneficiary") to be designated by the Company within five (5) days after the
discovery of the transaction which created the Excess Shares. The Trustee shall
have the exclusive right to designate a person who may acquire the Excess Shares
without violating the applicable ownership restrictions (a "Permitted
Transferee") to acquire all of the shares held by the Trust. The Permitted
Transferee must pay the Trustee an amount equal to the fair market value
(determined at the time of transfer to the Permitted Transferee) for the Excess
Shares. The Trustee shall pay to the Prohibited Owner the lesser of: a) the
value of the shares at the time they became Excess Shares and b) the price
received by the Trustee from the sale of the Excess Shares to the Permitted
Transferee. The excess of: a) the sale proceeds from the transfer to the
Permitted Transferee over b) the amount paid to the Prohibited Owner, if any, in
addition to any dividends paid with respect to the Excess Shares will be
distributed to the Beneficiary.
5
<PAGE> 7
The Ownership Limit will not be automatically removed even if the REIT
provisions of the Code are changed so as to no longer contain any ownership
concentration limitation or if the ownership concentration limitation is
increased. Except as otherwise described above, any change in the Ownership
Limit would require an amendment to the Certificate. Amendments to the
Certificate require the affirmative vote of holders owning a majority of the
outstanding Capital Stock. In addition to preserving the Company's status as a
REIT, the Ownership Limit may have the effect of precluding an acquisition of
control of the Company without the approval of the Board of Directors.
All certificates representing Capital Stock will bear a legend referring to
the restrictions described above.
All persons who own, directly or by virtue of the attribution provisions of
the Code, more than 7.5% of the outstanding Capital Stock must file an affidavit
with the Company containing the information specified in the Certificate within
30 days after January 1 of each year. In addition, each stockholder shall upon
demand be required to disclose to the Company in writing such information with
respect to the direct, indirect and constructive ownership of shares as the
Board of Directors deems necessary to comply with the provisions of the Code
applicable to a REIT or to comply with the requirements of any taxing authority
or governmental agency. United States Treasury Regulations (the "Regulations")
currently require that the Company annually request written statements
requesting information as to the actual ownership of the Capital Stock from each
record holder of more than 1% of the Company's outstanding Capital Stock.
Depending upon the number of record holders of the Capital Stock, the reporting
threshold required by the Regulations can fall as low as .5%. Record holders
that fail to submit a written statement in response to the request required by
the Regulations are required to attach to their federal income tax returns
specified information regarding the actual ownership of shares of Capital Stock
of which they are the record holder.
LIMITATION OF LIABILITY OF DIRECTORS
The Certificate provides that a director will not be personally liable for
monetary damages to the Company or its stockholders for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for paying a dividend or approving a stock repurchase in violation of
Section 174 of the Delaware General Corporation Law ("DGCL") or (iv) for any
transaction from which the director derived an improper personal benefit.
While the Certificate provides directors with protection from awards for
monetary damages for breaches of their duty of care, it does not eliminate such
duty. Accordingly, the Certificate will have no effect on the availability of
equitable remedies such as an injunction or rescission based on a director's
breach of his or her duty of care. The provisions of the Certificate described
above apply to an officer of the Company only if he or she is a director of the
Company and is acting in his or her capacity as director, and do not apply to
officers of the Company who are not directors.
INDEMNIFICATION AGREEMENTS
The Company has entered into indemnification agreements with each of its
officers and directors. The indemnification agreements require, among other
things, that the Company indemnify its officers and directors to the fullest
extent permitted by law, and advance to the officers and directors all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also indemnify and advance
all expenses incurred by officers and directors seeking to enforce their rights
under the indemnification agreements, and cover officers and directors under the
Company's directors' and officers' liability insurance. Although the form of the
indemnification agreement offers substantially the same scope of coverage
afforded by provisions in the Company's Certificate and Bylaws, it provides
greater assurance to directors and officers that indemnification will be
available, because, as a contract, it cannot be modified unilaterally in the
future by the Board of Directors or by stockholders to eliminate the rights it
provides.
6
<PAGE> 8
DELAWARE ANTI-TAKEOVER STATUTE
The Company is a Delaware corporation and is subject to Section 203 of the
DGCL. In general, Section 203 prevents an "interested stockholder" (defined
generally as a person owning 15% or more of the Company's outstanding voting
stock) from engaging in a "business combination" (as defined in Section 203)
with the Company for three years following the date that person becomes an
interested stockholder unless (a) before that person became an interested
stockholder, the Company's Board of Directors approved the transaction in which
the interested stockholder became an interested stockholder or approved the
business combination, (b) upon completion of the transaction that resulted in
the interested stockholder's becoming an interested stockholder, the interested
stockholder owns at least 85% of the Company's voting stock outstanding at the
time the transaction commenced (excluding stock held by directors who are also
officers of the Company and by employee stock plans that do not provide
employees with the right to determine confidentially whether shares held subject
to the plan will be tendered in a tender or exchange offer), or (c) following
the transaction in which that person became an interested stockholder, the
business combination is approved by the Company's Board of Directors and
authorized at a meeting of stockholders by the affirmative vote of the holders
of at least two-thirds of the Company's outstanding voting stock not owned by
the interested stockholder.
Under Section 203, these restrictions also do not apply to certain business
combinations proposed by an interested stockholder following the announcement or
notification of one of certain extraordinary transactions involving the Company
and a person who was not an interested stockholder during the previous three
years or who became an interested stockholder with the approval of a majority of
the Company's directors, if that extraordinary transaction is approved or not
opposed by a majority of the directors who were directors before any person
became an interested stockholder in the previous three years or who were
recommended for election or elected to succeed such directors by a majority of
such directors then in office.
DESCRIPTION OF UNITS
The following summary description of Units is qualified by reference to the
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership (the "Amended and Restated Agreement"), as amended (the "Partnership
Agreement"), and the Rights Agreement (as hereinafter defined). The Amended and
Restated Agreement and the Rights Agreement have been filed as Exhibits to the
Company's Annual Report on Form 10-K for the year ended December 31, 1993, the
amendments to the Amended and Restated Agreement have been filed as Exhibits to
the Company's Annual Report on Form 10-K for the year ended December 31, 1995,
and the foregoing are incorporated herein by reference.
MANAGEMENT AND OPERATIONS
The Operating Partnership is a Delaware limited partnership which is,
pursuant to the Partnership Agreement, required to be operated in a manner that
will enable the Company to continue to satisfy the requirements for being
classified as a REIT and to avoid any Federal income tax liability. The
Partnership Agreement provides that the net operating cash revenues of the
Operating Partnership, as well as net sales and refinancing proceeds, will be
distributed from time to time as determined by the Company, in its capacity as
the sole general partner of the Operating Partnership (but not less frequently
than quarterly), pro rata in accordance with the partners' percentage interests.
Generally, pursuant to the Partnership Agreement, the Company, as the sole
general partner of the Operating Partnership, has exclusive and complete
responsibility and discretion in the management and control of the Operating
Partnership, and the holders of Units (the "Limited Partners") have no authority
to transact business for, or participate in the management activities or
decisions of, the Operating Partnership. However, certain decisions, including
those to amend the Partnership Agreement (other than in connection with the
admission of additional Limited Partners) or terminate the Partnership
Agreement, to make a general assignment for the benefit of creditors, to take
title to any property other than in the name of the Operating Partnership or a
subsidiary partnership, to institute any proceeding for bankruptcy or to be
dissolved would require the consent of a majority in interest of the Limited
Partners. In addition, without the written
7
<PAGE> 9
consent of a Limited Partner, the Partnership Agreement may not be amended to
materially adversely affect such Limited Partner's rights to distributions or
allocations except in connection with the admission of additional Limited
Partners or unless such amendment affects the existing Limited Partners who are
Bucksbaums (as hereinafter defined) in the same manner on a Unit-for-Unit basis.
TRANSFERABILITY OF INTERESTS
The Partnership Agreement provides that the Company may not voluntarily
withdraw from the Operating Partnership, or transfer or assign its interest in
the Operating Partnership, without the consent of a majority in interest of the
Limited Partners. Such Limited Partners may transfer their interests in the
Operating Partnership to a transferee, provided that such transferee assumes all
obligations of the transferor Limited Partner and provided further that such
transfer does not cause a termination of the Operating Partnership for Federal
income tax purposes, does not cause the Company to cease to comply with
requirements under the Code for qualification as a REIT and satisfies certain
other general requirements specified in the Partnership Agreement.
BUCKSBAUM RIGHTS
Pursuant to the terms of the Rights Agreement, dated as of July 27, 1993
(the "Rights Agreement"), the Bucksbaums currently hold certain rights (the
"Bucksbaum Rights") granted to them in connection with the Company's initial
public offering, which enable them to convert a portion of their interest in the
Operating Partnership into shares of Common Stock (the "Exchange Component") and
to sell the remainder of their partnership interest to the Company (the "Sale
Component"). The Exchange Component enables the Bucksbaums to exchange their
partnership interest in the Operating Partnership for shares of Common Stock
until they own up to 25% of the outstanding Common Stock. The Sale Component
enables the Bucksbaums to sell all or a portion of their remaining interests in
the Operating Partnership to the Company for cash or Common Stock, or a
combination thereof, at the Company's election. The Sale Component can only be
exercised if the Bucksbaums already own 25% or more of the outstanding Common
Stock.
The Bucksbaum Rights may be exercised by the Bucksbaums from time to time
(although only once during any calendar year), in whole or in part, subject to
the limitations that in any calendar year the Sale Component may be exercised
only with respect to one-fourth of the percentage interests in the Partnership
held by the Bucksbaums immediately after the Conversion Component is fully
exercised.
The Bucksbaum Rights expire on April 16, 2023 if not exercised prior to
that date.
CAPITAL CONTRIBUTIONS
The Partnership Agreement provides that if the Operating Partnership
requires additional funds at any time or from time to time in excess of funds
available to the Operating Partnership from borrowings or capital contributions,
the Company may borrow such funds from a financial institution or other lender
and lend such funds to the Operating Partnership on the same terms and
conditions as are applicable to the Company's borrowing of such funds. As an
alternative to borrowing funds required by the Operating Partnership and after
having used reasonable efforts to borrow such funds, the Company may contribute
the amount of such required funds as an additional capital contribution to the
Operating Partnership. If the Company so contributes additional capital to the
Operating Partnership, the Company's partnership interest in the Operating
Partnership will be increased on a proportionate basis based upon the amount of
such additional capital contributions and the value of the Operating Partnership
at the time of such contributions. Conversely, the partnership interests of the
Limited Partners will be decreased on a proportionate basis in the event of
additional capital contributions by the Company.
TAX MATTERS
Pursuant to the Partnership Agreement, the Company is the tax matters
partner of the Operating Partnership and, as such, has authority to make tax
elections under the Code on behalf of the Operating Partnership.
8
<PAGE> 10
The net income or net loss of the Operating Partnership will generally be
allocated to the Company and the Limited Partners in accordance with their
percentage interests, subject to compliance with the provisions of Sections
704(b) and 704(c) of the Code and the regulations promulgated thereunder.
DUTIES AND CONFLICTS
The Partnership Agreement provides that all business activities of the
Company, including all activities pertaining to the acquisition and operation of
shopping center properties, must be conducted through the Operating Partnership
(excluding direct interests of up to 1% in subsidiary partnerships of the
Operating Partnership that are owned by the Company or subsidiaries thereof).
The Partnership Agreement prohibits the Company from borrowing for the purpose
of making a distribution to stockholders except if it arranges such borrowing
through the Operating Partnership.
Pursuant to the Partnership Agreement, the Bucksbaums cannot acquire
interests in shopping center properties or vacant land suitable for development
as a shopping center for a specified period of time. The Partnership Agreement
permits the Bucksbaums to own less than 5% of any publicly traded entity which
invests in retail malls, provided that neither Matthew Bucksbaum nor John
Bucksbaum is actively involved in the management of such entity by virtue of any
such investment.
TERM
The Operating Partnership will continue in full force and effect until
December 31, 2050, or until sooner dissolved upon the withdrawal, bankruptcy,
dissolution or termination of the Company (unless a majority in interest of the
Limited Partners elect to continue the Operating Partnership), the election of
the Company and a majority in interest of the Limited Partners, or the sale or
other disposition of all or substantially all the assets of the Operating
Partnership.
REDEMPTION OF UNITS
GENERAL
Each Limited Partner who is a party to the Redemption Rights Agreement or a
permitted assignee thereunder may, subject to certain limitations, require that
the Operating Partnership redeem such Limited Partner's Units, by delivering a
notice to the Operating Partnership. Such rights are described in the Redemption
Rights Agreement which was executed and delivered in connection with the
Piedmont Transaction. The summary of the terms of the Redemption Rights
Agreement set forth below does not purport to be complete and is subject to and
qualified by reference to the Redemption Rights Agreement. Subject to the rights
of the Company described in the next paragraph, upon redemption, such Limited
Partner will receive, with respect to each Unit tendered, cash in an amount
equal to the market value of one share of Common Stock of the Company (subject
to certain anti-dilution adjustments). The market value of the Common Stock for
this purpose will be equal to the average of the closing trading price of the
Company's Common Stock on the NYSE (or substitute information, if no such
closing price is available) for the five consecutive trading days ending on the
date on which a redemption notice is received by the Operating Partnership (or,
if such date is not a business day, the first business day thereafter).
In lieu of the Operating Partnership redeeming Units tendered for
redemption, the Company, as the sole general partner of the Operating
Partnership, has the right, in its sole and absolute discretion, to elect to
assume directly and satisfy the redemption right of a Limited Partner by paying
to the redeeming Limited Partner, with respect to each Unit tendered, either (a)
the cash amount described in the preceding paragraph or (b) one share of Common
Stock of the Company (subject to certain anti-dilution adjustments). The Company
anticipates that it generally will elect to assume directly and satisfy any
redemption right exercised by such a Limited Partner through the issuance of
shares of Common Stock (the Redemption Shares) pursuant to this Prospectus,
whereupon the Company will acquire the Units being redeemed and will become the
owner of such Units. However, there can be no assurance that the Company will
make such election in any particular case. With each exchange of Units for
shares of Common Stock or cash, the Company's ownership
9
<PAGE> 11
interest in the Operating Partnership will increase. Such an acquisition by the
Company will be treated as a sale by the redeeming Limited Partner of such Units
to the Company for Federal income tax purposes. See "--Tax Consequences of
Redemption" below. Upon redemption, such Limited Partner's right to receive
distributions with respect to the Units redeemed will cease (but if such right
is exchanged for Redemption Shares, the Limited Partner will have rights as a
stockholder of the Company from the time of its acquisition of the Redemption
Shares), and if all of its Units are redeemed, such Limited Partner will have
withdrawn as a partner of the Operating Partnership and will no longer be a
party to the Partnership Agreement.
Each such Limited Partner must notify the Operating Partnership of such
Limited Partner's desire to require the Operating Partnership to redeem Units by
sending a notice in accordance with the terms of the Redemption Rights
Agreement. A Limited Partner must request the redemption of at least 1000 Units
(or all of the Units held by such holder, if such Limited Partner owns fewer
than 1000 Units). The redemption will occur within 30 days following the
Operating Partnership's receipt of the notice and related documentation required
by the Redemption Rights Agreement, except that no redemption can occur if the
delivery of Redemption Shares would be prohibited under the provisions of the
Certificate designed to protect the Company's qualification as a REIT.
TAX CONSEQUENCES OF REDEMPTION
The following discussion summarizes certain Federal income tax
considerations that may be relevant to a Limited Partner who exercises such
Limited Partner's right to require the redemption of such Limited Partner's
Units in accordance with the terms of the Redemption Rights Agreement. (The
right of a Limited Partner to require the redemption of Units in accordance with
the terms of the Redemption Rights Agreement is referred to as the "Redemption
Right.") Because the specific tax consequences to a Limited Partner exercising
such Limited Partner's Redemption Right will depend upon the specific
circumstances of that Limited Partner, each Limited Partner considering
exercising the Redemption Right is strongly urged to consult such Limited
Partner's own tax advisor regarding the specific Federal, state, and local tax
consequences to such Limited Partner of the exercise of the Redemption Right.
TAX TREATMENT OF REDEMPTION OF UNITS
THE EXERCISE BY A LIMITED PARTNER OF SUCH LIMITED PARTNER'S RIGHT TO
REQUIRE THE REDEMPTION OF SUCH LIMITED PARTNER'S UNITS PURSUANT TO THE
REDEMPTION RIGHTS AGREEMENT WILL BE TREATED FOR FEDERAL INCOME TAX PURPOSES AS A
SALE OF THE UNITS BY THE LIMITED PARTNER. SUCH A SALE WILL BE FULLY TAXABLE TO
THE REDEEMING LIMITED PARTNER. It is possible that the amount of gain recognized
(or even the tax liability resulting from such gain) could exceed the amount of
cash or the value of other property (i.e., Redemption Shares) received upon such
disposition. In addition, the ability of a Limited Partner to sell a substantial
number of Redemption Shares in order to raise cash to pay tax liabilities
associated with redemption of Units may be limited as a result of fluctuations
in the market price for the Common Stock, and the price the Limited Partner
receives for such shares may not equal the value of such Limited Partner's Units
at the time of redemption.
If the Company assumes and performs the redemption obligation, the
Redemption Rights Agreement provides that the redemption will be treated by the
Company, the Operating Partnership and the redeeming Limited Partner as a sale
of Units by such Limited Partner to the Company at the time of such redemption.
In that event, such sale will be fully taxable to the redeeming Limited Partner
and such redeeming Limited Partner will be treated as realizing for tax purposes
an amount equal to the sum of the cash or the value of the Common Stock received
in the exchange plus the amount of Operating Partnership nonrecourse liabilities
allocable to the redeemed Units at the time of the redemption. The determination
of the amount of gain or loss is discussed more fully below.
If the Company does not elect to assume the obligation to redeem a Limited
Partner's Units, the Operating Partnership will redeem such Units for cash. If
the Operating Partnership redeems Units for cash that the Company contributes to
the Operating Partnership to effect such redemption, the redemption likely
10
<PAGE> 12
would be treated for tax purposes as a sale of such Units to the Company in a
fully taxable transaction, although the matter is not free from doubt. In that
event, the redeeming Limited Partner would be treated as realizing an amount
equal to the sum of the cash received in the exchange plus the amount of
Operating Partnership nonrecourse liabilities allocable to the redeemed Units at
the time of the redemption. The determination of the amount of gain or loss in
the event of sale treatment is discussed more fully below.
If, instead, the Operating Partnership chooses to redeem a Limited
Partner's Units for cash that is not contributed by the Company to effect the
redemption, the tax consequences would be the same as described in the previous
paragraph, except that if the Operating Partnership redeems less than all of a
Limited Partner's Units, the Limited Partner would not be permitted to recognize
any loss occurring on the transaction and would recognize taxable gain only to
the extent that the cash, plus the share of Operating Partnership nonrecourse
liabilities allocable to the redeemed Units, exceeded the Limited Partner's
adjusted basis in all of such Limited Partner's Units immediately before the
redemption.
TAX TREATMENT OF DISPOSITION OF UNITS BY LIMITED PARTNERS GENERALLY
If a Unit is redeemed in a manner that is treated as a sale of the Unit, or
a Limited Partner otherwise disposes of a Unit, the determination of gain or
loss from the sale or other disposition will be based on the difference between
the amount considered realized for tax purposes and the tax basis in such Unit.
See "Basis of Units" below. Upon the sale of a Unit, the "amount realized" will
be measured by the sum of the cash and fair market value of other property
(i.e., Redemption Shares) received plus the portion of the Operating
Partnership's nonrecourse liabilities allocable to the Unit sold. To the extent
that the amount of cash or property received plus the allocable share of the
Operating Partnership's nonrecourse liabilities exceeds the Limited Partner's
basis for the Unit disposed of, such Limited Partner will recognize gain. It is
possible that the amount of gain recognized or even the tax liability resulting
from such gain could exceed the amount of cash and the value of any other
property (i.e., Redemption Shares) received upon such disposition.
Except as described below, any gain recognized upon a sale or other
disposition of Units will be treated as gain attributable to the sale or
disposition of a capital asset. To the extent, however, that the amount realized
upon the sale of a Unit attributable to a Limited Partner's share of "unrealized
receivables" of the Operating Partnership (as defined in Section 751 of the
Code) exceeds the basis attributable to those assets, such excess will be
treated as ordinary income. Unrealized receivables include, to the extent not
previously included in Operating Partnership income, any rights to payment for
services rendered or to be rendered. Unrealized receivables also include amounts
that would be subject to recapture as ordinary income if the Operating
Partnership had sold its assets at their fair market value at the time of the
transfer of a Unit.
BASIS OF UNITS
In general, a Limited Partner who was deemed at the time of the Piedmont
Transaction to have received its Units upon liquidation of a partnership had an
initial tax basis in its Units ("Initial Basis") equal to its basis in its
partnership interest at the time of such liquidation. Similarly, in general, a
Limited Partner who at the time of the Piedmont Transaction contributed a
partnership interest in exchange for its Units had an Initial Basis in the Units
equal to its basis in the contributed partnership interest. A Limited Partner's
Initial Basis in its Units generally is increased by (a) such Limited Partner's
share of Operating Partnership taxable income and (b) increases in its share of
liabilities of the Operating Partnership (including any increase in its share of
liabilities occurring in connection with the Piedmont Transaction). Generally,
such Limited Partner's basis in its Units is decreased (but not below zero) by
(i) its share of Operating Partnership distributions, (ii) decreases in its
share of liabilities of the Operating Partnership (including any decrease in its
share of liabilities occurring in connection with the Piedmont Transaction),
(iii) its share of losses of the Operating Partnership, and (iv) its share of
nondeductible expenditures of the Operating Partnership that are not chargeable
to capital.
11
<PAGE> 13
POTENTIAL APPLICATION OF THE DISGUISED SALE REGULATIONS TO A REDEMPTION OF UNITS
There is a possibility that a redemption of Units issued in the Piedmont
Transaction might cause the original transfer of property to the Operating
Partnership in exchange for Units in connection with the Piedmont Transaction to
be treated as a "disguised sale" of property. The Code and the Treasury
Regulations thereunder (the "Disguised Sale Regulations") generally provide
that, unless one of the prescribed exceptions is applicable, a partner's
contribution of property to a partnership and a simultaneous or subsequent
transfer of money or other consideration (including the assumption of or taking
subject to a liability) from the partnership to the partner will be presumed to
be a sale, in whole or in part, of such property by the partner to the
partnership. The Disguised Sale Regulations also provide, however, that if two
years have passed between the transfer of money or other consideration and the
contribution of property, the transactions will not be presumed to be a sale
unless the facts and circumstances clearly establish that the transfers
constitute a sale. There can be no assurance that the Internal Revenue Service
("IRS") might not seek to contend that the Disguised Sale Regulations apply
here. The IRS could contend that the Piedmont Transaction itself was taxable as
a disguised sale under the Disguised Sale Regulations. Any gain recognized
thereby may be eligible for installment sale reporting under Section 453 of the
Code, subject to certain limitations.
POTENTIAL CHANGE IN INVESTMENT UPON REDEMPTION OF UNITS
If a Limited Partner exercises the right to require the redemption of such
Limited Partner's Units pursuant to the Redemption Rights Agreement, such
Limited Partner may receive cash or Redemption Shares in exchange for such
Units. If a Limited Partner receives cash, the Limited Partner will no longer
have any interest in the Company and will not benefit from any subsequent
increases in the share price of the Common Stock and will not receive any future
distributions from the Company (unless the Limited Partner currently owns or
acquires in the future additional shares of Common Stock or Units). If a Limited
Partner receives Redemption Shares, the Limited Partner will become a
stockholder of the Company rather than a holder of Units in the Operating
Partnership. ALTHOUGH THE NATURE OF AN INVESTMENT IN SHARES OF COMMON STOCK IS
SUBSTANTIALLY EQUIVALENT ECONOMICALLY TO AN INVESTMENT IN UNITS IN THE OPERATING
PARTNERSHIP, THERE ARE SOME DIFFERENCES BETWEEN OWNERSHIP OF UNITS AND OWNERSHIP
OF COMMON STOCK RELATING TO, AMONG OTHER THINGS, FORM OF ORGANIZATION, PERMITTED
INVESTMENTS, POLICIES AND RESTRICTIONS, MANAGEMENT STRUCTURE, COMPENSATION AND
FEES, INVESTOR RIGHTS AND FEDERAL INCOME TAXATION, SOME OF WHICH MAY BE MATERIAL
TO INVESTORS.
REGISTRATION OF SHARES
The Company has registered the Redemption Shares under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to its registration
obligations under the Redemption Rights Agreement. Under the Redemption Rights
Agreement, the Company is required to prepare and file with the Commission such
amendments and supplements to the registration statement pursuant to which the
Redemption Shares are registered under the Securities Act, and the prospectus
used in connection therewith, as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act. See
"Plan of Distribution."
Pursuant to the Redemption Rights Agreement, the Company has agreed to pay
all expenses of effecting the above-described registration of the Redemption
Shares under the Securities Act prior to July 13, 2001. The Limited Partners who
are parties to the Redemption Rights Agreement have agreed severally, in
proportion to the number of Units held by them at such time in relation to the
total number of shares of Common Stock covered by such a registration statement,
to reimburse the Company for registration expenses which are incurred
thereafter.
If the Company does not maintain the above-described registration statement
in accordance with the terms of the Redemption Rights Agreement, the Company
shall have no right to deliver shares of Common
12
<PAGE> 14
Stock (i.e., Redemption Shares) in consideration for tendered Units during the
time when such registration statement is not so effective.
COMPARISON OF OWNERSHIP OF UNITS AND SHARES OF COMMON STOCK
Although the nature of an investment in shares of Common Stock of the
Company is substantially equivalent economically to an investment in Units in
the Operating Partnership, there are some differences between ownership of Units
and ownership of shares of Common Stock, some of which may be material to
investors.
The information below highlights a number of the significant differences
between the Operating Partnership and the Company and compares certain legal
rights associated with the ownership of Units and Common Stock. These
comparisons are intended to assist Limited Partners of the Operating Partnership
in understanding how their investment will be changed if their Units are
redeemed for Common Stock. THIS DISCUSSION IS SUMMARY IN NATURE AND DOES NOT
CONSTITUTE A COMPLETE DISCUSSION OF THESE MATTERS, AND HOLDERS OF UNITS SHOULD
CAREFULLY REVIEW THE BALANCE OF THIS PROSPECTUS AND THE REGISTRATION STATEMENT
OF WHICH THIS PROSPECTUS IS A PART FOR ADDITIONAL IMPORTANT INFORMATION ABOUT
THE COMPANY.
FORM OF ORGANIZATION AND ASSETS OWNED
The Operating Partnership is organized as a Delaware limited partnership.
The Company is a Delaware corporation. The Company has elected to be taxed as a
REIT under the Code, and intends to maintain its qualification as a REIT.
LENGTH OF INVESTMENT
The Operating Partnership has a stated termination date of December 31,
2050, although it may be terminated earlier under certain circumstances. The
Company has a perpetual term and intends to continue its operations for an
indefinite time period.
ADDITIONAL EQUITY
The Operating Partnership is authorized to issue additional Units from time
to time, as determined by the Company as its general partner, in exchange for
contributions of cash or property to the Operating Partnership. The Operating
Partnership may issue additional Units to the Company, as long as such interests
are issued in connection with a comparable issuance of shares of capital stock
of the Company and proceeds raised in connection with the issuance of such
shares are contributed to the Operating Partnership.
The Board of Directors of the Company may issue, in its discretion,
additional equity securities consisting of Common Stock or Preferred Stock;
provided, that the total number of shares issued does not exceed the authorized
number of shares of capital stock set forth in the Certificate. As long as the
Operating Partnership is in existence, the proceeds of all equity capital raised
by the Company will be contributed to the Operating Partnership in exchange for
Units in the Operating Partnership.
MANAGEMENT AND CONTROL
Generally, pursuant to the Partnership Agreement, the Company, as the sole
general partner of the Operating Partnership, has exclusive and complete
responsibility and discretion in the management and control of the Operating
Partnership, and the Limited Partners have no authority to transact business
for, or participate in the management activities or decisions of, the Operating
Partnership. However, certain decisions, including those to amend the
Partnership Agreement (other than in connection with the admission of additional
Limited Partners) or terminate the Partnership Agreement, to make a general
assignment for the benefit of creditors, to take title to any property other
than in the name of the Operating Partnership or a subsidiary partnership, to
institute any proceeding for bankruptcy or to be dissolved would require the
consent
13
<PAGE> 15
of a majority in interest of the Limited Partners. In addition, without the
written consent of a Limited Partner, the Partnership Agreement may not be
amended to materially adversely affect such Limited Partner's rights to
distributions or allocations except in connection with the admission of
additional Limited Partners or unless such amendment affects the existing
Limited Partners who are Bucksbaums in the same manner on a Unit-for-Unit basis.
The Board of Directors of the Company has exclusive control over the
Company's business and affairs subject only to the restrictions in the
Certificate and Bylaws and the Partnership Agreement. At each annual meeting of
the stockholders, the successors of the class of directors whose terms expire at
that meeting will be elected. The policies adopted by the Board of Directors may
be altered or eliminated without a vote of the stockholders. Accordingly, except
for their vote in the elections of directors, stockholders have no control over
the ordinary business policies of the Company. The Board of Directors cannot
change the Company's policy of maintaining its status as a REIT, however,
without the approval of holders of a majority of the outstanding shares of
capital stock entitled to vote on such matter.
FIDUCIARY DUTIES
Under Delaware law, the general partner of the Operating Partnership is
accountable to the Operating Partnership as a fiduciary and, consequently, is
required to exercise good faith in all of its dealings with respect to
partnership affairs. The Partnership Agreement provides, however, that the
general partner is not liable for monetary damages for losses sustained or
liabilities incurred as a result of the general partner's acts or omissions,
provided that the general partner has acted in good faith and in the belief that
any such act or omission was in the best interests of the Operating Partnership
and, provided further, that the general partner was not guilty of fraud,
misconduct or gross negligence.
Under Delaware law, the Company's directors must perform their duties in
good faith, in a manner that they reasonably believe to be in the best interests
of the Company and with the care of an ordinarily prudent person in a like
position. Directors of the Company who act in such a manner generally will not
be liable to the Company or its stockholders for monetary damages arising from
their activities.
MANAGEMENT LIABILITY AND INDEMNIFICATION
As a matter of Delaware law, the general partner has liability for the
payment of the obligations and debts of the Operating Partnership unless
limitations upon such liability are stated in the document or instrument
evidencing the obligation. Under the Partnership Agreement, the Operating
Partnership has agreed to indemnify the general partner and its "affiliates," as
defined in the Partnership Agreement, and any individual acting on their behalf,
from and against all losses, damages, claims or liabilities, including, but not
limited to, reasonable attorneys' fees and expenses, incurred in connection with
any actions relating to the operations of the Operating Partnership in which the
general partner, its affiliates, or any individual acting on their behalf is
involved, to the fullest extent permitted by Delaware law (including any
procedures set forth therein regarding advancement of expenses to such
indemnified party).
The Certificate provides that a director of the Company will not be
personally liable for monetary damages to the Company or its stockholders for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of Section 174 of the DGCL or (iv) for any transaction
from which the director derived an improper personal benefit.
The Company has entered into indemnification agreements with each of its
officers and directors. The indemnification agreements require, among other
things, that the Company indemnify its officers and directors to the fullest
extent permitted by law, and advance to the officers and directors all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also indemnify and advance
all expenses incurred by officers and directors seeking to enforce their rights
under the indemnification agreements, and cover officers and directors under the
Company's directors' and officers' liability insurance. Although the form of the
indemnification agreement offers substantially the same scope of
14
<PAGE> 16
coverage afforded by provisions in the Company's Certificate and Bylaws, it
provides greater assurance to directors and officers that indemnification will
be available, because, as a contract, it cannot be modified unilaterally in the
future by the Board of Directors or by stockholders to eliminate the rights it
provides.
ANTITAKEOVER PROVISIONS
Except in limited circumstances, the general partner of the Operating
Partnership has exclusive management power over the business and affairs of the
Operating Partnership. The general partner may not voluntarily withdraw from the
Operating Partnership, or transfer or assign its interest in the Operating
Partnership, without the consent of a majority in interest of the Limited
Partners, and other than as expressly provided in the Partnership Agreement, no
Limited Partner may withdraw from the Operating Partnership without the prior
written consent of the general partner.
The Certificate and Bylaws of the Company contain a number of provisions
that may have the effect of delaying or discouraging an unsolicited proposal for
the acquisition of the Company or the removal of incumbent management. These
provisions include, among others: (1) a staggered Board of Directors; (2)
authorized capital stock that may be issued as Preferred Stock in the discretion
of the Board of Directors, with superior voting rights to the Common Stock; (3)
a requirement that directors may be removed only for cause and only by a vote of
holders of at least 75% of the outstanding Common Stock; and (4) provisions
designed to avoid concentration of share ownership in a manner that would
jeopardize the Company's status as a REIT under the Code. In addition, the
Company is subject to Section 203 of the DGCL which provides that, subject to
certain exceptions, no Delaware corporation may engage in any "business
combination" with an "interested stockholder" for a period of three years
following the date that such stockholder became an interested stockholder unless
prior to such date, the board of directors of the corporation approved either
the business combination or the transaction which resulted in the stockholder
becoming an interested stockholder.
VOTING RIGHTS
Under the Partnership Agreement, the Limited Partners have voting rights
only with respect to certain limited matters, including dissolution of the
Operating Partnership, amendments to the Partnership Agreement (other than to
reflect the admission of additional Limited Partners), making a general
assignment for the benefit of creditors, taking title to any personal or real
property other than in the name of the Operating Partnership or a subsidiary
partnership, and instituting any proceeding for bankruptcy on behalf of the
Operating Partnership. All matters submitted to a vote of Limited Partners
require the affirmative vote of a majority in interest of the Limited Partners.
Otherwise, all decisions relating to the operation and management of the
Operating Partnership are made by the Company, as general partner.
The Company is managed and controlled by a Board of Directors consisting of
three classes having staggered terms of office. One class of directors is
elected by the stockholders at each annual meeting of the Company. Delaware law
requires that certain major corporate transactions, including most amendments to
a corporation's certificate of incorporation, may not be consummated without the
approval of stockholders. All shares of Common Stock have one vote, and the
Company's Certificate permits the Board of Directors to classify and issue
Preferred Stock in one or more series having voting power which may differ from
that of the Common Stock.
AMENDMENT OF THE PARTNERSHIP AGREEMENT OR THE CERTIFICATE OF INCORPORATION
The general partner of the Operating Partnership may not, without the
written consent of a majority in interest of the Limited Partners, amend or
modify the Partnership Agreement other than to reflect the admission of
additional Limited Partners.
Amendments to the Company's Certificate must be approved by a majority of
the Board of Directors and by the vote of at least majority of the votes
entitled to be cast at a meeting of stockholders.
15
<PAGE> 17
VOTE REQUIRED TO DISSOLVE THE OPERATING PARTNERSHIP OR THE COMPANY
The general partner of the Operating Partnership may elect to dissolve the
Partnership upon making a written election to that effect with the written
consent of a majority in interest of the Limited Partners.
Under Delaware law, the Board of Directors must obtain approval of holders
of at least a majority of the outstanding capital stock in order to dissolve the
Company.
COMPENSATION, FEES AND DISTRIBUTIONS
The general partner does not receive any compensation for its services as
general partner of the Operating Partnership. As a partner in the Operating
Partnership, however, the general partner has the right to receive allocations
and distributions from the Operating Partnership, pro rata in accordance with
its percentage interest in the Operating Partnership. In addition, the Operating
Partnership reimburses the general partner for all expenses incurred relating to
the ongoing operation of the Operating Partnership.
The directors and officers of the Company receive compensation for their
services.
LIABILITY OF INVESTORS
Under the Partnership Agreement and applicable state law, the liability of
the Limited Partners for the Operating Partnership's debts and obligations is
generally limited to the amount of their investment the Operating Partnership.
Under Delaware law, stockholders are not personally liable for the debts or
obligations of the Company.
POTENTIAL DILUTION OF RIGHTS
The general partner of the Operating Partnership is authorized to cause the
Operating Partnership to issue additional Units from time to time in exchange
for contributions of cash or property to the Operating Partnership.
The Company's Board of Directors may issue, in its discretion, additional
shares of Common Stock and has the authority to issue from the authorized
Capital Stock a variety of other equity securities of the Company with such
powers, preferences and rights as the Board of Directors may designate at the
time of issuance. The issuance of additional shares of either Common Stock or
other similar equity securities may result in the dilution of the interests of
the stockholders.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TO HOLDERS OF COMMON STOCK
This section is a summary of certain Federal income tax matters of general
application pertaining to REITs and their stockholders under the Code. The
discussion is based on current law and does not purport to deal with all aspects
of Federal income taxation that may be relevant to investors subject to special
treatment under Federal income tax laws, such as investors subject to the
Employee Retirement Income Security Act of 1974, as amended, other tax exempt
investors, dealers in securities or foreign persons. The provisions of the Code
pertaining to REITs are highly technical and complex and sometimes involve mixed
questions of fact and law. In addition, this section does not discuss foreign,
state or local taxation. Limited Partners who are considering exercising their
redemption rights should consult, and must depend on, their own tax advisors
regarding the Federal, state, local, foreign and other tax consequences of
holding and disposing of the Redemption Shares.
In the opinion of Neal, Gerber & Eisenberg, tax counsel to the Company, the
Company has been organized and operated in a manner that has enabled it to
qualify as a REIT under Sections 856 through 859 of the Code, and its proposed
method of operation will enable it to continue to so qualify. No assurance can
be given, however, that the Company will so qualify or continue to so qualify.
The Company's ability to qualify as
16
<PAGE> 18
a REIT under the requirements of the Code and the regulations promulgated
thereunder is dependent upon actual operating results.
To qualify as a REIT under the Code for a taxable year, the Company must
meet certain organizational and operational requirements, which generally
require it to be a passive investor in operating real estate and to avoid
excessive concentration of ownership of its stock. First, its principal
activities must be real estate related. Generally, at least 75% of the value of
the total assets of the Company at the end of each calendar quarter must consist
of real estate assets, cash or governmental securities. The Company may not own
more than 10% of the outstanding voting securities of any corporation; shares of
qualified REITs and of certain wholly owned subsidiaries are exempt from this
prohibition. Additionally, gross income from the sale or other disposition of
stock and securities held for less than one year, the sale or other disposition
of real property held for less than four years and from certain other sources
must constitute less than 30% of the gross income for each taxable year of a
REIT. For each taxable year, at least 75% of a REIT's gross income must be
derived from specified real estate sources and 95% must be derived from such
real estate sources plus certain other permitted sources. Real estate income for
purposes of these requirements includes gains from the sale of real property not
held primarily for sale to customers in the ordinary course of business,
dividends on REIT shares, interest on loans secured by mortgages on real
property, certain rents from real property and income from foreclosure property.
For rents to qualify, they may not be based on the income or profits of any
person, except that they may be based on a percentage or percentages of gross
income or receipts, and, subject to certain limited exceptions, the REIT may not
manage the property or furnish services to residents except through an
independent contractor which is paid an arms'-length fee and from which the REIT
derives no income.
For the Company to remain qualified as a REIT, no more than 50% in value of
the outstanding Capital Stock including in some circumstances stock into which
outstanding securities might be converted, may be owned actually or
constructively by five or fewer individuals (as defined in the Code to include
certain entities) at any time during the last half of the Company's taxable
year. Accordingly, the Certificate of Incorporation of the Company, as amended,
contains provisions restricting the acquisition of shares of Capital Stock. See
"Description of Common Stock -- Restrictions on Transfer" in the accompanying
Prospectus.
So long as the Company qualifies for taxation as a REIT and distributes at
least 95% of the sum of (a) its REIT taxable income (as computed without regard
to net capital gains or the dividends-paid deduction) and (b) its net income
(after tax) from foreclosure property for its taxable year to its stockholders
annually, the Company itself will not be subject to Federal income tax on that
portion of such income distributed to stockholders. The Company will be taxed at
regular corporate rates on all income not distributed to stockholders. The
Company's policy is to distribute at least 95% of the sum of its REIT taxable
income and net income from foreclosure property. REITs may also incur taxes for
certain other activities or to the extent distributions do not satisfy certain
other requirements.
In the case of a REIT which is a partner in a partnership, such as the
Company, Treasury Regulations provide that the REIT will be deemed to own its
proportionate share of the assets of the partnership and will be deemed to earn
the income of the partnership attributable to such share. In addition, for
purposes of satisfying the asset and income tests described above, the character
of the gross income and assets in the hands of the partnership remains the same
when allocated to the REIT. Accordingly, the Company's proportionate share of
the assets, liabilities and items of income of the Operating Partnership will be
treated as assets, liabilities, and items of income of the Company for purposes
of qualifying as a REIT.
Failure of the Company to qualify during any taxable year as a REIT could,
unless certain relief provisions were available, have a material adverse effect
upon investors. If disqualified for taxation as a REIT for a taxable year, the
Company would also be disqualified for taxation as a REIT for the next four
taxable years, unless the failure was due to reasonable cause rather than
willful neglect and certain other conditions are met. The Company would be
subject to Federal income tax at corporate rates on all of its taxable income
and would not be able to deduct the dividends paid, which could result in a
discontinuation of or substantial reduction in dividends to stockholders.
Dividends would also be subject to the regular tax rules applicable to dividends
received by stockholders of corporations. Should the failure to qualify be
determined to have occurred retroactively in an earlier tax year of the Company,
the imposition of a substantial Federal income
17
<PAGE> 19
tax liability on the Company attributable to such nonqualifying tax years may
adversely affect the Company's ability to pay dividends. In the event that the
Company fails to meet certain income tests of the tax law, it may, generally,
nonetheless retain its qualification as a REIT if it pays a 100% tax on the
amount by which it failed to meet the income tests so long as its failure was
due to reasonable cause and not willful neglect. Any such taxes would adversely
affect the Company's ability to pay dividends.
TAXATION OF TAXABLE DOMESTIC STOCKHOLDERS
As long as the Company qualifies as a REIT, distributions made to its
taxable domestic stockholders out of current or accumulated earnings and profits
(and not designated as capital gain dividends) will be taxable to such
stockholders as ordinary income. Corporate stockholders will not be entitled to
the dividends-received deduction with respect to distributions by the Company.
Distributions that are designated as capital gain dividends will be taxable to
stockholders as long-term capital gains (to the extent they do not exceed the
Company's actual net capital gain for the taxable year) without regard to the
period for which the stockholder has held its stock. However, corporate
stockholders may be required to treat up to 20% of certain capital gain
dividends as ordinary income. Distributions by the Company in excess of its
current and accumulated earnings and profits will not be taxable to a
stockholder to the extent that such distributions do not exceed the adjusted
basis of the stockholder's shares, but rather, will be a nontaxable reduction in
a stockholder's adjusted basis in such shares to the extent thereof and
thereafter will be taxed as capital gain.
Any dividend declared by the Company in October, November or December of
any year payable to a stockholder of record on a specified date in any such
month will be treated as both paid by the Company and received by the
stockholder on December 31, of such year, provided that the dividend is actually
paid by the Company during January of the following calendar year.
Stockholders may not include in their individual income tax returns any net
operating losses or capital losses of the Company. Instead, such losses would be
carried over by the Company for potential offset against its future income
(subject to certain limitations). Taxable distributions from the Company and
gain from the disposition of the Capital Stock will not be treated as passive
activity income and, therefore, stockholders generally will not be able to apply
any "passive activity losses" (such as losses from certain types of limited
partnerships in which the stockholder is a limited partner) against such income.
In addition, taxable distributions from the Company and gain from the
disposition of Capital Stock generally will be treated as investment income for
purposes of the investment interest limitations. The Company will notify the
stockholders after the close of the Company's taxable year as to the portions of
the distributions attributable to that year that constitute ordinary income,
return of capital, and capital gain. In general, any gain or loss realized upon
a taxable disposition of the Capital Stock by a stockholder who is not a dealer
in securities will be treated as long-term capital gain or loss if the Capital
Stock has been held for more than one year and otherwise as short-term capital
gain or loss. However, any loss upon a sale or exchange of Capital Stock by a
stockholder who has held such stock for six months or less (after applying
certain holding period rules) will be treated as a long-term capital loss to the
extent of distributions from the Company required to be treated by such
stockholder as long-term capital gain. All or a portion of any loss realized
upon a taxable disposition of the Capital Stock may be disallowed if other
shares of the Capital Stock are purchased within 30 days before or after the
disposition.
BACKUP WITHHOLDING
The Company will report to its domestic stockholders and to the IRS the
amount of dividends paid during each calendar year, and the amount of tax
withheld, if any. Under the backup withholding rules, a stockholder may be
subject to backup withholding at the rate of 31% with respect to dividends paid
unless such holder: (a) is a corporation or comes within certain other exempt
categories and when required demonstrates this fact, or (b) provides a taxpayer
identification number, certifies as to no loss of exemption from backup
withholding, and otherwise complies with applicable requirements of the backup
withholding rules. A stockholder that does not provide the Company with a
correct taxpayer identification number may also be subject to penalties imposed
by the IRS. Any amount paid as backup withholding will be creditable against the
stockholder's income tax liability. In addition, the Company may be required to
withhold a portion
18
<PAGE> 20
of capital gain distributions to any stockholders that fail to certify their
non-foreign status to the Company. See "-- Taxation of Foreign Stockholders."
TAXATION OF PENSION TRUSTS
One of the requirements for the Company to qualify as a REIT for Federal
income tax purposes is that, during the last half of each taxable year, not more
than 50% in value of the Company's Capital Stock can be owned by five or fewer
individuals (as defined in the Code to include certain entities). For purposes
of the "five or fewer" test described above, beneficiaries of a domestic pension
trust that owns shares in the Company generally will be treated as owning such
shares in proportion to their actuarial interests in the trust. In addition,
amounts distributed by the Company to a tax-exempt pension trust generally do
not constitute "unrelated business taxable income" ("UBTI") to such trust unless
the trust owns more than ten percent of the Capital Stock, in which case a
portion of such amounts distributed may be treated as UBTI.
TAXATION OF FOREIGN STOCKHOLDERS
The rules governing United States Federal income taxation of nonresident
alien individuals, foreign corporations, foreign partnerships and other foreign
stockholders (collectively, "Non-U.S. Stockholders") are complex and no attempt
will be made herein to provide more than a summary of such rules. Prospective
Non-U.S. Stockholders should consult with their own tax advisors to determine
the impact of Federal, state and local income tax laws with regard to an
investment in the Capital Stock, including any reporting requirements. It is
currently anticipated that the Company will qualify as a "domestically
controlled REIT" (i.e., a REIT in which at all times during a specified testing
period less than 50% of the value of the stock is owned directly or indirectly
by Non-U.S. Stockholders) and therefore gain from the sale of Capital Stock by a
Non-U.S. Stockholder will not be subject to United States taxation unless such
gain is treated as "effectively connected" with the Non-U.S. Stockholder's
United States trade or business.
Distributions that are not attributable to gain from the sale or exchange
by the Company of United States real property interests (and are not designated
as capital gain dividends) will be treated as dividends taxed as ordinary income
to the extent that they are made out of current or accumulated earnings and
profits of the Company. Such distributions generally will be subject to a United
States withholding tax equal to 30% of the gross amount of the distribution,
subject to reduction or elimination under an applicable tax treaty. However, if
dividends from the investment in the shares are treated as "effectively
connected" with the Non-U.S. Stockholder's conduct of a United States trade or
business, such dividends will be subject to regular U.S. income taxation
(foreign corporations may also be subject to the 30% branch profits tax). The
Company expects to withhold United States income tax at the rate of 30% on the
amount of any such dividends made to a Non- U.S. Stockholder unless: (1) a lower
treaty rate applies and the Non-U.S. Stockholder files certain information
evidencing its entitlement to such lower treaty rate, or (2) the Non-U.S.
Stockholder files an IRS Form 4224 with the Company claiming that the
distribution is "effectively connected income". Distributions which exceed
current and accumulated earnings and profits of the Company will not be taxable
to the extent that they do not exceed the adjusted basis of a stockholder's
shares, but rather will reduce (but not below zero) the adjusted basis of such
shares. To the extent that such distributions exceed the adjusted basis of a
Non-U.S. Stockholder's shares, they generally will give rise to United States
tax liability if the Non-U.S. Stockholder would otherwise be subject to tax on
gain from the sale or disposition of his shares in the Company, as described
above. If it cannot be determined at the time a distribution is made whether or
not such distribution will be in excess of current and accumulated earnings and
profits, the distributions will be subject to withholding at the same rate as
dividends. However, amounts thus withheld are refundable if it is subsequently
determined that such distribution was, in fact, in excess of current and
accumulated earnings and profits of the Company.
Distributions by the Company to a Non-U.S. Stockholder that are
attributable to gain from sales or exchanges by the Company of a United States
real property interest are subject to income and withholding tax under the
provisions of the Foreign Investment in Real Property Tax Act of 1980, as
amended ("FIRPTA"). Under FIRPTA, those distributions, if any, which are treated
as gain recognized from the sale of a United States real property interest, are
taxed as income "effectively connected" with a United States business.
19
<PAGE> 21
Non-U.S. Stockholders would thus be taxed at the normal capital gain rates
applicable to U.S. stockholders (subject to the applicable alternative minimum
tax and a special alternative minimum tax for nonresident alien individuals).
Also, distributions subject to FIRPTA may be subject to a 30% branch profits tax
in the hands of a foreign corporate stockholder not entitled to treaty
exemption. The Company will withhold 35% of any distribution to a Non-U.S.
Stockholder that could be designated by the Company as a capital gain dividend.
This amount is creditable against the Non-U.S. Stockholder's FIRPTA tax
liability. A refund may be available if the amount exceeds the Non-U.S.
Stockholder's FIRPTA tax liability.
PLAN OF DISTRIBUTION
This Prospectus relates to the possible issuance by the Company of the
Redemption Shares if, and to the extent that, holders of Units acquired pursuant
to the Piedmont Transaction tender such Units for redemption in accordance with
the terms of the Redemption Rights Agreement and the Company, in its sole and
absolute discretion, elects to issue Redemption Shares in consideration for such
Units. The Company has registered the Redemption Shares for sale to provide the
holders thereof with freely tradeable securities, but registration of such
shares does not necessarily mean that any of such shares will be issued by the
Company or offered or sold by the holders thereof.
The Company will not receive any cash proceeds from the issuance of the
Redemption Shares to holders of Units tendered for redemption; however, it will
acquire Units from such holders.
The Company may from time to time issue up to 772,936 Redemption Shares
upon the acquisition of Units tendered for redemption in accordance with the
Redemption Rights Agreement. The Company will acquire one Unit (subject to
certain anti-dilution adjustments) in exchange for each Redemption Share that
the Company may issue to holders of Units pursuant to this Prospectus.
Consequently, with each redemption by the Company, the Company's interest in the
Operating Partnership will increase.
The Redemption Shares will be listed on the NYSE, subject to official
notice of issuance.
LEGAL MATTERS
The validity of the Redemption Shares offered hereby will be passed upon
for the Company by Neal, Gerber & Eisenberg.
EXPERTS
The consolidated financial statements and schedule of the Company as of
December 31, 1995 and 1994 and for the three years in the period ended December
31, 1995 and the consolidated financial statements of CenterMark Properties,
Inc., an entity in which the Company recently disposed of its ownership
interest, as of December 31, 1995 and 1994 and for the year ended December 31,
1995 and the periods from February 12, 1994 through December 31, 1994 and from
January 1, 1994 through February 12, 1994 have been incorporated by reference
herein from the Company's Annual Report on Form 10-K for the year ended December
31, 1995, in reliance upon the reports of Coopers & Lybrand L.L.P., independent
accountants, and upon the authority of that firm as experts in accounting and
auditing. The combined statement of revenues and certain expenses of the Lansing
Mall, the Westwood Mall and the Lakeview Mall for the year ended December 31,
1995 have been incorporated by reference herein from the Company's Current
Report on Form 8-K/A, as amended, dated February 18, 1997 in reliance upon the
report of Coopers & Lybrand L.L.P., independent accountants, and upon the
authority of that firm as experts in accounting and auditing.
The statement of revenues and certain expenses of Park Mall for the year
ended December 31, 1995 have been incorporated by reference herein from the
Company's Current Report on Form 8-K/A, as amended, dated February 18, 1997 in
reliance upon the report of Addison, Roberts & Ludwig, P.C., independent
auditors, and upon the authority of that firm as experts in accounting and
auditing.
20
<PAGE> 22
The consolidated financial statements of CenterMark Properties, Inc. for
the year ended December 31, 1993, incorporated by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1995, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon the reports of such firm and given upon the authority of such
firm as experts in accounting and auditing. The consolidated financial
statements of GGP/Homart, Inc. as of December 31, 1995 and for the period from
December 22, 1995 through December 31, 1995, incorporated by reference from the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm and given on the authority of such firm
as experts in accounting and auditing.
21
<PAGE> 23
======================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY BROKER, DEALER OR AGENT. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 4
Use of Proceeds....................... 4
Capital Stock......................... 4
Description of Common Stock........... 4
Description of Units.................. 7
Redemption of Units................... 9
Comparison of Ownership of Units and
Shares of Common Stock.............. 13
Certain Federal Income Tax
Considerations to Holders of Common
Stock............................... 16
Plan of Distribution.................. 20
Legal Matters......................... 20
Experts............................... 20
</TABLE>
======================================================
======================================================
772,936 SHARES
GENERAL GROWTH
PROPERTIES, INC.
COMMON STOCK
-------------------
PROSPECTUS
-------------------
, 1997
======================================================
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with the
sale and distribution of securities being registered, other than discounts,
concessions and brokerage commissions.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 7,305
Blue sky fees and expenses.................................. 250*
Legal fees and expenses..................................... 5,000*
Accounting fees and expenses................................ 2,500*
Miscellaneous (including NYSE listing fees)................. 2,945*
-------
Total.................................................. $18,000*
</TABLE>
- -------------------------
* Estimated
The Company will bear all of the foregoing expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. In its Certificate of Incorporation,
the Company has adopted (a) the provisions of Section 102(b)(7) of the Delaware
General Corporation Law ("DGCL"), which enables a corporation in its certificate
of incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for monetary damages for breach of the director's
fiduciary duty, except (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the DGCL (providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit and (b) the provisions of Section 145 of the DGCL, which provide that a
corporation may indemnify any persons, including officers and directors, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that such person was an officer, director,
employee or agent of the corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such officer, director, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interest and, with respect to criminal proceedings, had no
reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify officers or directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against expenses (including attorneys' fees) that
such officer or director actually and reasonably incurred.
The Company has entered into indemnification agreements with each of its
officers and directors. The indemnification agreements, among other things,
require the indemnification of the Company's officers and directors to the
fullest extent permitted by law, and require that the Company advance to the
officers and directors all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Such
indemnification agreements also provide for the indemnification and advance of
all expenses incurred by officers and directors seeking to enforce their rights
under the indemnification agreements, and require the Company to cover officers
and directors under the Company's directors' and officers' liability insurance.
Although the indemnification agreements offer substantially the same scope of
II-1
<PAGE> 25
coverage afforded by provisions in the Certificate and the Bylaws, such
agreements provide greater assurance to directors and officers that
indemnification will be available, because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or by the stockholders to
eliminate the rights they provide.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
3.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to the Company's
Registration Statement on Form S-11 (No. 33-56640)).
3.2 Amendment to Amended and Restated Certificate of
Incorporation of the Company (incorporated by reference to
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995).
3.3 Bylaws of the Company (incorporated by reference to the
Company's Registration Statement on Form S-11 (No.
33-56640)).
4.1 Specimen certificate representing Common Stock (incorporated
by reference to the Company's Registration Statement on Form
S-11 (File No. 33-56640), filed on April 6, 1993).
5.1 Opinion of Neal, Gerber & Eisenberg, counsel for the
Company.
8.1 Tax Opinion of Neal, Gerber & Eisenberg, counsel for the
Company.
10.1 Redemption Rights Agreement, dated July 13, 1995
(incorporated by reference to Exhibit 99.1 to the Company's
Current Report on Form 8-K dated July 17, 1995).
10.2 Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1993).
10.3 First Amendment to Amended and Restated Agreement of Limited
Partnership (incorporated by reference to Exhibit 10(b) to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995).
10.4 Second Amendment to Amended and Restated Agreement of
Limited Partnership (incorporated by reference to Exhibit
10(c) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995).
10.5 Third Amendment to Amended and Restated Agreement of Limited
Partnership.
10.6 Fourth Amendment to Amended and Restated Agreement of
Limited Partnership.
10.7 Fifth Amendment to Amended and Restated Agreement of Limited
Partnership.
10.8 Sixth Amendment to Amended and Restated Agreement of Limited
Partnership.
10.9 Seventh Amendment to Amended and Restated Agreement of
Limited Partnership.
10.10 Rights Agreement between the Company and the Limited
Partners of the Operating Partnership (incorporated by
reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1993).
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of Addison, Roberts & Ludwig, P.C.
23.5 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1
and Exhibit 8.1).
24.1 Powers of Attorney of certain officers and directors of the
Company (included on signature page).
</TABLE>
II-2
<PAGE> 26
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than insurance payments and the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 27
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on March 10, 1997.
GENERAL GROWTH PROPERTIES, INC.
(Registrant)
By: /s/ MATTHEW BUCKSBAUM
------------------------------------
Matthew Bucksbaum
Chairman of the Board and
Chief Executive Officer
We, the undersigned officers and directors of General Growth Properties,
Inc., hereby severally constitute Matthew Bucksbaum, Robert Michaels and Bernard
Freibaum, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, any and all amendments, including post-effective
amendments, to this registration statement, and generally to do all such things
in our name and behalf in such capacities to enable General Growth Properties,
Inc. to comply with the applicable provisions of the Securities Act of 1933 and
all requirements of the Securities and Exchange Commission, and we hereby ratify
and confirm our signatures as they may be signed by our said attorneys, or any
of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on March 10, 1997, by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ MATTHEW BUCKSBAUM Chairman of the Board, Chief Executive Officer
- ----------------------------------------------------- and Director (Principal Executive Officer)
Matthew Bucksbaum
/s/ ROBERT MICHAELS President and Director
- -----------------------------------------------------
Robert Michaels
/s/ JOHN BUCKSBAUM Executive Vice President and Director
- -----------------------------------------------------
John Bucksbaum
/s/ BERNARD FREIBAUM Executive Vice President and Chief Financial
- ----------------------------------------------------- Officer (Principal Financial and Accounting
Bernard Freibaum Officer)
/s/ ANTHONY DOWNS Director
- -----------------------------------------------------
Anthony Downs
/s/ MORRIS MARK Director
- -----------------------------------------------------
Morris Mark
</TABLE>
II-5
<PAGE> 29
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ BETH STEWART Director
- -----------------------------------------------------
Beth Stewart
/s/ A. LORNE WEIL Director
- -----------------------------------------------------
A. Lorne Weil
</TABLE>
II-6
<PAGE> 30
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. DESCRIPTION NUMBER
- ------- ----------- ------
<S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to the Company's
Registration Statement on Form S-11 (No. 33-56640)).
3.2 Amendment to Amended and Restated Certificate of
Incorporation of the Company (incorporated by reference to
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995).
3.3 Bylaws of the Company (incorporated by reference to the
Company's Registration Statement on Form S-11 (No.
33-56640)).
4.1 Specimen certificate representing Common Stock (incorporated
by reference to the Company's Registration Statement on Form
S-11 (File No. 33-56640), filed on April 6, 1993).
5.1 Opinion of Neal, Gerber & Eisenberg, counsel for the
Company.
8.1 Tax Opinion of Neal, Gerber & Eisenberg, counsel for the
Company.
10.1 Redemption Rights Agreement, dated July 13, 1995
(incorporated by reference to Exhibit 99.1 to the Company's
Current Report on Form 8-K dated July 17, 1995).
10.2 Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1993).
10.3 First Amendment to Amended and Restated Agreement of Limited
Partnership (incorporated by reference to Exhibit 10(b) to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1995).
10.4 Second Amendment to Amended and Restated Agreement of
Limited Partnership (incorporated by reference to Exhibit
10(c) to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995).
10.5 Third Amendment to Amended and Restated Agreement of Limited
Partnership.
10.6 Fourth Amendment to Amended and Restated Agreement of
Limited Partnership.
10.7 Fifth Amendment to Amended and Restated Agreement of Limited
Partnership.
10.8 Sixth Amendment to Amended and Restated Agreement of Limited
Partnership.
10.9 Seventh Amendment to Amended and Restated Agreement of
Limited Partnership.
10.10 Rights Agreement between the Company and the Limited
Partners of the Operating Partnership (incorporated by
reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1993).
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of Addison, Roberts & Ludwig, P.C.
23.5 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1
and Exhibit 8.1).
24.1 Powers of Attorney of certain officers and directors of the
Company (included on signature page).
</TABLE>
II-7
<PAGE> 1
EXHIBIT 5.1
March 10, 1997
General Growth Properties, Inc.
55 West Monroe Street, Suite 3100
Chicago, Illinois 60603
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to General Growth Properties, Inc., a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, of up to 772,936 shares of its common
stock, par value $.10 per share (the "Shares"), which are proposed to be issued
by the Company as described in the Company's Registration Statement on Form S-3
(the "Registration Statement") to be filed with the Securities and Exchange
Commission on March 10, 1997.
As such counsel, we have examined such documents and certificates of
officers of the Company as we deemed relevant and necessary as the basis for
the opinion hereafter expressed. In such examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals and the conformity to original documents of all documents
submitted to us as conformed or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance as described in the Registration
Statement, will be duly and validly issued and fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the heading
"Legal Matters" in the Prospectus comprising a part of the Registration
Statement.
Very truly yours,
/s/ NEAL, GERBER & EISENBERG
<PAGE> 1
EXHIBIT 8.1
NEAL, GERBER & EISENBERG
Two North LaSalle Street
Suite 2200
Chicago, IL 60602
(312) 269-8000
March 6, 1997
General Growth Properties, Inc.
120 North LaSalle Street
Suite 3100
Chicago, Illinois 60602
Gentlemen:
We are rendering the opinions contained herein in our capacity as tax
counsel to General Growth Properties, Inc., a Delaware corporation (the
"Company"). In so acting and in rendering the opinions expressed below, we
have examined and relied upon the originals, or copies certified or otherwise
identified to our satisfaction of such records, documents, agreements and
instruments as we have deemed necessary to the rendering of these opinions.
Based upon and subject to the assumptions noted below, we are of the
opinion that for federal income tax purposes under current law, (1) for the
period beginning April 15, 1993 and ending December 31, 1996, the Company has
been organized and operated in a manner that has enabled it to qualify as a
real estate investment trust under Sections 856 through 859 of the Internal
Revenue Code of 1986, as amended (the "Code"), and (2) the Company's proposed
method of operations will enable it to continue to so qualify in the future.
The opinions expressed herein are subject to the following
qualifications and assumptions:
1. We have relied upon certain representations from the management of the
Company as to certain matters of fact upon which the foregoing opinions are
based and we have no reason to believe that such reliance is not justified.
2. The Company will, in the future, operate and remain organized in the
same manner that it has operated and been organized for the period from April
15, 1993 through December 31, 1996.
<PAGE> 2
General Growth Properties, Inc.
March 6, 1997
Page 2
3. All documents submitted to us as originals and the originals of all
documents submitted to us as certified or photostatic copies are authentic, all
documents submitted to us as certified or photostatic copies conform to the
original documents and all signatures are genuine.
The opinions herein are given as of the date hereof, are based upon the
Code, regulations of the Department of the Treasury, published rulings and
procedures of the Internal Revenue Service, and judicial decisions, all as in
effect on the date hereof. These opinions are limited to the matters expressly
set forth herein and no opinions are to be implied or may be inferred beyond
the matters expressly so stated. We disclaim any obligation to update this
letter for events, whether legal or factual, occurring after the date hereof.
This letter is given solely for your benefit in connection with the
Company's Registration Statement on Form S-3 relating to the registration under
the Securities Act of 1933 of 772,936 shares of the Company's Common Stock, par
value $.10 per share (the "Common Stock"). Without our prior written consent,
this letter may not be used or relied upon by any other person or for any other
purpose.
Please be advised that Marshall E. Eisenberg, a partner in our firm, is
the Secretary of the Company and that certain partners of and attorneys
associated with our firm and members of their families own shares of Common
Stock. No knowledge is to be imputed to this firm by virtue of Mr. Eisenberg's
position as Secretary of the Company.
Very truly yours,
/s/ NEAL, GERBER & EISENBERG
<PAGE> 1
EXHIBIT 10.5
THIRD AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF GGP LIMITED PARTNERSHIP
Third Amendment to Amended and Restated Agreement of Limited
Partnership (the "Amendment"), dated May 21, 1996, among the undersigned
parties.
R E C I T A L S:
WHEREAS, a Delaware limited partnership known as GGP Limited
Partnership exists pursuant to that certain Amended and Restated Agreement of
Limited Partnership, dated July 27, 1993, as amended by that certain First
Amendment thereto, dated May 23, 1995, and that certain Second Amendment
thereto, dated July 13, 1995 (the "Original Partnership Agreement");
WHEREAS, the Original Partnership Agreement contains restrictions on
the ability of the Bucksbaum Limited Partners (as defined in the Original
Partnership Agreement) to engage in the shopping center business; and
WHEREAS, the parties hereto, being the general partner of the
partnership and a Majority in Interest of the Limited Partners (as defined in
the Original Partnership Agreement) desire to amend the Original Partnership
Agreement to allow the Bucksbaum Limited Partners to make passive investments
in certain other shopping center owners and operators.
NOW, THEREFORE, the parties hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the
meanings set forth in the Original Partnership Agreement.
2. Notwithstanding anything to the contrary contained in Sections
9.5 and 9.6 of the Original Partnership Agreement or any other provisions of
the Original Partnership Agreement, Matthew Bucksbaum, John Bucksbaum, the
Bucksbaum Limited Partners and/or their respective Affiliates may hold equity
securities of any other publicly held Entity or subsidiary thereof (including
without limitation CenterMark Properties, Inc.) engaged in the shopping center
development, ownership and/or management business provided that they own in the
aggregate less than five percent (5%) of the equity securities of such Entity
and neither Matthew Bucksbaum nor John Bucksbaum serves as a director or
executive officer of, or in a similar capacity for, such Entity other than at
the request of the General Partner or by reason of an investment therein by the
General Partner, the Partnership or any Affiliate of the General Partner or the
Partnership.
3. Except as specifically set forth herein, the Original
Partnership Agreement shall remain in full force and effect.
4. This Amendment shall be deemed a contract made under the laws
of the State of Delaware (without regard to its conflicts of law principles).
<PAGE> 2
5. This Amendment may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one
document.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first set forth above.
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By:_________________________________
Its:_____________________________
BUCKSBAUM LIMITED PARTNERS:
APPLETON TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:________________________
Its:____________________
FALLBROOK TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:________________________
Its:____________________
MARTIN INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:________________________
Its:____________________
-2-
<PAGE> 3
MARTIN INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MARTIN INVESTMENT TRUST C
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MARTIN INVESTMENT TRUST F
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MARTIN INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MATTHEW INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MATTHEW INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
-3-
<PAGE> 4
MATTHEW INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MATTHEW INVESTMENT TRUST H
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
________________________
MATTHEW FAMILY TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MBA TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MBB TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
MBC TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:____________________________
Its:________________________
-4-
<PAGE> 5
The address for each of the foregoing
Bucksbaum Limited Partners is as follows:
4001 W. 41st Street
#04A Empire Mall
Sioux Falls, South Dakota 57116
_______________________________
Ann Bucksbaum Friedman
215 Keo Way
Des Moines, Iowa 50309
_______________________________
John Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
STANLEY RICHARDS REVOCABLE TRUST
By:____________________________
Stanley Richards, Trustee
215 Keo Way
Des Moines, Iowa 50309
-5-
<PAGE> 1
EXHIBIT 10.6
FOURTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
Fourth Amendment to Amended and Restated Agreement of Limited Partnership
(the "Amendment"), dated as of August 30, 1996, among the undersigned parties.
R E C I T A L S:
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 July 27, 1993, as amended by that certain First
Amendment thereto dated May 23, 1995, that certain Second Amendment dated July
13, 1995, and that certain Third Amendment dated as of June 1, 1996 (the
"Initial Partnership Agreement");
WHEREAS, pursuant to Section 4.3(a)(i) of the Initial Partnership Agreement,
General Growth Properties, Inc., a Delaware corporation which is the general
partner of the Partnership (the "General Partner"), has made, as of the date
hereof, an additional contribution to the capital of the Partnership in the
amount of $39,868,800 (the "Cash Amount");
WHEREAS, concurrently herewith, Carolyn Bucksbaum ("Bucksbaum") is being
admitted as an additional limited partner of the Partnership pursuant to that
certain Stock Contribution Agreement, dated August 30, 1996 (the "Contribution
Agreement"), between the Partnership and Bucksbaum, pursuant to which Bucksbaum
is contributing to the Partnership certain shares of common stock of General
Growth Management, Inc., a Delaware corporation; and
WHEREAS, the parties hereto, being the General Partner, Bucksbaum and a
majority in interest of the other partners of the Partnership, desire to amend
the Initial Partnership Agreement to reflect the foregoing admission and
additional capital contribution as set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the meanings set
forth in the Initial Partnership Agreement.
2. The issuance of 1,555,855 additional Units to the General Partner in
consideration of the capital contribution to the Partnership of the Cash Amount
is hereby approved, and the Limited Partners hereby waive the notice set forth
in Section 4.3 of the Initial Partnership Agreement.
<PAGE> 2
3. The issuance of Units to Bucksbaum upon the terms set forth in the
Contribution Agreement is hereby approved, Bucksbaum is hereby admitted as an
Additional Partner and the Limited Partners hereby waive the notice set forth
in Section 4.3 of the Initial Partnership Agreement.
4. Bucksbaum hereby assumes and shall be bound by the terms and provisions of
the Partnership Agreement, as amended hereby, with respect to the Units issued
to her pursuant to the Partnership Agreement.
5. Exhibit A of the Initial Partnership Agreement is hereby deleted and
Exhibit A attached to this Amendment is hereby inserted in lieu thereof.
6. Except as specifically set forth herein, the Initial Partnership
Agreement shall remain in full force and effect.
7. This Amendment shall be governed by the laws of the State of
Delaware (without regard to its conflicts of law principles).
8. This Amendment may be executed in counterparts, each of which shall be an
original and all of which together shall constitute the same document.
9. This Amendment shall be binding upon, and inure to the benefit of,
the parties and their respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By:_______________________________
Its:___________________________
LIMITED PARTNERS:
APPLETON TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
2
<PAGE> 3
FALLBROOK TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST C
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST F
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
3
<PAGE> 4
MATTHEW INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST H
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW FAMILY TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBA TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
4
<PAGE> 5
MBB TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBC TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
The address for each of the foregoing Limited Partners is as follows:
4001 W. 41st Street
#04A Empire Mall
Sioux Falls, South Dakota 57116
______________________________
Ann Bucksbaum Friedman
215 Keo Way
Des Moines, Iowa 50309
______________________________
Carolyn Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
______________________________
John Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
STANLEY RICHARDS REVOCABLE TRUST
By:________________________________
Stanley Richards, Trustee
215 Keo Way
Des Moines, Iowa 50309
5
<PAGE> 6
______________________________
Joe W. Lowrance
5960 Fairview Road
Suite 402
Charlotte, North Carolina 28210
LWLDA LIMITED PARTNERSHIP
By: _________________________
General Partner
5960 Fairview Road
Suite 402
Charlotte, North Carolina 28210
______________________________
Brent M. Milgrom
5960 Fairview Road
Suite 402
Charlotte, North Carolina 28210
GDC/A&B LIMITED PARTNERSHIP
By: _________________________
General Partner
5960 Fairview Road
Suite 402
Charlotte, North Carolina 28210
______________________________
Edward S. Brown
321 Airdale Road
Rosemont, Pennsylvania 19010
EDWARD S. BROWN AND SUSAN GARBER, HUSBAND
AND WIFE, AS TENANTS BY THE ENTIRETY
______________________________
Edward S. Brown
______________________________
Susan Garber
c/o Edward S. Brown
321 Airdale Road
Rosemont, Pennsylvania 19010
______________________________
Lawrence A. Brown
140 Erie Road
Columbus, Ohio 43214
6
<PAGE> 7
______________________________
Merrill H.J. Roth
708 Limehouse Road
Radnor, Pennsylvania 19087
THE ROTH FAMILY LIMITED PARTNERSHIP
By: _________________________
General Partner
708 Limehouse Road
Radnor, Pennsylvania 19087
______________________________
Arthur B. Morgenstern
517 Righters Mill Road
Narberth, Pennsylvania 19072
______________________________
Joseph Straus, Jr.
814 Gregory Road
Rydal, Pennsylvania 19046-2929
______________________________
Howard I. Abrams
c/o Leonard J. Cooper, Esq.
Wolf, Block, Schorr and Solis-Cohen
S.E. Corner 15th & Chestnut Streets
Philadelphia, Pennsylvania 19102
HIA LIMITED PARTNERSHIP
By: _________________________
General Partner
c/o Leonard J. Cooper, Esq.
Wolf, Block, Schorr and Solis-Cohen
S.E. Corner 15th & Chestnut Streets
Philadelphia, Pennsylvania 19102
MORGENSTERN, ROUNICK-WEINER ASSOCIATES
By: _________________________
General Partner
517 Righters Mill Road
Narberth, Pennsylvania 19072
7
<PAGE> 8
MARVIN ROUNICK AND JUDY ROUNICK,
HUSBAND AND WIFE, AS
TENANTS-BY-THE-ENTIRETY
______________________________
Marvin Rounick
______________________________
Judy Rounick
The Deb Shops
9401 Blue Grass Road
Philadelphia, Pennsylvania 19114
JOINT REVOCABLE TRUST OF
WARREN AND PENNY WEINER
By: _________________________
Trustee
The Deb Shops
9401 Blue Grass Road
Philadelphia, Pennsylvania 19114
IRREVOCABLE TRUST OF WARREN WEINER
DATED JANUARY 24, 1978
F/B/O ROBYN WEINER
By: _________________________
Trustee
The Deb Shops
9401 Blue Grass Road
Philadelphia, Pennsylvania 19114
IRREVOCABLE TRUST OF WARREN WEINER
DATED JANUARY 24, 1978
F/B/O KIMBERLY WEINER
By: _________________________
Trustee
The Deb Shops
9401 Blue Grass Road
Philadelphia, Pennsylvania 19114
8
<PAGE> 9
EXHIBIT A
Number
of Percentage
General Partner: Units Interest
- --------------- ----- -----------
General Growth 28,567,715.0000 63.3972%
Properties, Inc.
Limited Partners:
- ----------------
Appleton Trust 1,701,236.4524 3.7754
Fallbrook Trust 488,799.4853 1.0847
Martin Investment Trust A 1,030,585.6042 2.2871
Martin Investment Trust B 1,030,585.6042 2.2871
Martin Investment Trust C 1,030,585.6042 2.2871
Martin Investment Trust F 1,030,585.6042 2.2871
Martin Investment Trust G 2,061,171.2084 4.5741
Matthew Investment Trust A 893,169.4968 1.9821
Matthew Investment Trust B 891,984.6398 1.9795
Matthew Investment Trust G 1,783,636.8896 3.9582
Matthew Investment Trust H 1,783,636.8896 3.9582
MBA Trust 293,305.2273 .6509
MBB Trust 292,120.3700 .6483
MBC Trust 291,854.0225 .6477
Matthew Family Trust G 498,815.9255 1.1070
Ann Bucksbaum Friedman 7,872.7911 .0175
Carolyn Bucksbaum 453,791.0000 1.0070
John Bucksbaum 7,872.7911 .0175
Stanley Richards
Revocable Trust 149,706.3938 .3322
Piedmont Mall Associates 1,660.0000 .0037
MP Associates, L.P. 156,136.0000 .3465
PPP Associates 51,507.0000 .1143
Joe W. Lowrance 43,980.0000 .0976
<PAGE> 10
LWLDA Limited Partnership 30,861.0000 .0685
Brent M. Milgrom 43,980.0000 .0976
GDC/A&B Limited Partnership 30,861.0000 .0685
Edward S. Brown 29,079.0000 .0645
Edward S. Brown and Susan
Garber, Husband and Wife,
as Tenants by the Entirety 27,873.0000 .0619
Lawrence A. Brown 12,731.0000 .0283
Merrill H.J. Roth 22,154.0000 .0492
The Roth Family 15,223.0000 .0338
Limited Partnership
Arthur B. Morgenstern 37,321.0000 .0828
Joseph Straus, Jr. 59,547.0000 .1321
Howard I. Abrams 3,341.0000 .0074
HIA Limited Partnership 81,730.0000 .1814
Morgenstern, Rounick-Weiner 48,414.0000 .1074
Associates
Marvin Rounick and
Judy Rounick, Husband
and Wife, as Tenants-by-
the-Entirety 38,036.0000 .0844
Joint Revocable Trust of
Warren and Penny Weiner 12,679.0000 .0283
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Robyn Weiner 12,679.0000 .0283
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Kimberly Weiner 12,679.0000 .0283
---------------
Total Units: 45,061,485.0000 100.0000%
=============== =========
-2-
<PAGE> 1
EXHIBIT 10.7
FIFTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
Fifth Amendment to Amended and Restated Agreement of Limited
Partnership (the "Amendment"), dated as of October 4, 1996, among the
undersigned parties.
R E C I T A L S:
WHEREAS, a Delaware limited partnership known as GGP Limited
Partnership exists pursuant to that certain Amended and Restated Agreement of
Limited Partnership dated 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 Amendment thereto dated as of May 21,
1996 and that certain Fourth Amendment thereto dated as of August 30, 1996 (the
"Initial Partnership Agreement");
WHEREAS, the general partner of the Partnership is General Growth
Properties, Inc., a Delaware corporation (the "General Partner");
WHEREAS, the General Partner acquired substantially all of the assets
relating to a regional shopping center located in Tucson, Arizona and known as
Park Mall (the "Acquired Assets") for a purchase price consisting of 1,000,000
shares (the "Shares") of the common stock, par value $.10 per share, of the
General Partner and cash (the "Cash Portion of the Purchase Price");
WHEREAS, the Partnership made a loan (the "Loan") to the General
Partner in the amount of the Cash Portion of the Purchase Price in order to
finance the acquisition of the Acquired Assets;
WHEREAS, concurrently herewith, the General Partner is contributing to
the capital of the Partnership the Acquired Assets in exchange for the issuance
of 1,000,000 units of general partnership interest in the Partnership (the
"Units") and the cancellation of the Loan;
WHEREAS, the Initial Partnership Agreement provides that a partner may
require that the General Partner file an election under Section 754 of the
Internal Revenue Code of 1986, as amended (the "Code"), which election, if
made, would impose burdensome record-keeping requirements on the Partnership;
WHEREAS, certain partners of the Partnership previously have
transferred all or a portion of their units of partnership interest in the
Partnership; and
WHEREAS, the parties hereto, being the General Partner and a majority
in interest of other partners of the Partnership, desire to amend the Initial
Partnership Agreement to issue to the General Partner the Units, to reflect the
transfers of units of partnership
<PAGE> 2
interest referred to above, to provide that the consent of General Partner to
the making of an election under Section 754 of the Code on behalf of the
Partnership shall be required in order for such election to be effective, which
consent may be withheld in the General Partner's sole discretion, and to set
forth certain other agreements regarding the Partnership.
NOW, THEREFORE, the parties hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the
meanings set forth in the Initial Partnership Agreement, as amended hereby.
2. The issuance of the Units to the General Partner in partial
consideration for the contribution of the Acquired Assets to the capital of the
Partnership is hereby approved, and the Units are hereby issued to the General
Partner.
3. Exhibit A of the Initial Partnership Agreement is hereby
deleted and the Exhibit A attached to this Amendment is hereby inserted in lieu
thereof.
4. Notwithstanding anything to the contrary contained in the
Partnership Agreement, the General Partner shall not be required to make an
election on behalf of the Partnership under Section 754 of the Code unless the
General Partner shall have consented thereto, which consent may be given or
withheld in the sole discretion of the General Partner.
5. The phrase "and upon no less than fifteen (15) days prior
written notice to the Limited Partners," contained in the fifth and sixth lines
of Section 8.3 of the Initial Partnership Agreement is hereby deleted.
6. Except as specifically set forth herein, the Initial Partnership
Agreement shall remain in full force and effect.
7. This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware (without regard to its conflicts of law
principles).
8. This Amendment may be executed in counterparts, each of which
shall be an original and all of which together shall constitute the same
document.
9. This Amendment shall be binding upon, and inure to the benefit
of, the parties and their respective successors and assigns.
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first written above.
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By:_______________________________
Its:___________________________
LIMITED PARTNERS:
APPLETON TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
FALLBROOK TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
-3-
<PAGE> 4
MARTIN INVESTMENT TRUST C
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST F
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
-4-
<PAGE> 5
MATTHEW INVESTMENT TRUST H
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW FAMILY TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBA TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBB TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBC TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
The address for each of the foregoing
Limited Partners is as follows:
4001 W. 41st Street
#04A Empire Mall
Sioux Falls, South Dakota 57116
-5-
<PAGE> 6
______________________________
Ann Bucksbaum Friedman
215 Keo Way
Des Moines, Iowa 50309
______________________________
John Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
STANLEY RICHARDS REVOCABLE TRUST
By:________________________________
Stanley Richards, Trustee
215 Keo Way
Des Moines, Iowa 50309
______________________________
Carolyn Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
-6-
<PAGE> 7
<TABLE>
<S> <C> <C>
LWLDA Limited Partnership 30,861.0000 .0670
Brent M. Milgrom 43,980.0000 .0955
GDC/A&B Limited Partnership 30,861.0000 .0670
Edward S. Brown 29,079.0000 .0631
Edward S. Brown and Susan
Garber, Husband and Wife,
as Tenants by the Entirety 27,873.0000 .0605
Lawrence A. Brown 12,731.0000 .0276
Merrill H.J. Roth 22,154.0000 .0481
The Roth Family 15,223.0000 .0330
Limited Partnership
Arthur B. Morgenstern 37,321.0000 .0810
Joseph Straus, Jr. 59,547.0000 .1293
HIA Limited Partnership 81,730.0000 .1774
Morgenstern, Rounick-Weiner 48,414.0000 .1051
Associates
Marvin Rounick and
Judy Rounick, Husband
and Wife, as Tenants-by-
the-Entirety 38,036.0000 .0826
Joint Revocable Trust of
Warren and Penny Weiner 12,679.0000 .0275
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Robyn Weiner 12,679.0000 .0275
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Kimberly Weiner 12,679.0000 .0275
---------------
Total Units: 46,061,502.0000 100.0000%
=============== =========
</TABLE>
<PAGE> 1
EXHIBIT 10.8
SIXTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
Sixth Amendment to Amended and Restated Agreement of Limited
Partnership (the "Amendment"), dated as of November 27, 1996, among the
undersigned parties.
R E C I T A L S:
WHEREAS, a Delaware limited partnership known as GGP Limited
Partnership exists pursuant to that certain Amended and Restated Agreement of
Limited Partnership dated 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 Amendment thereto dated as of May 21,
1996, that certain Fourth Amendment thereto dated as of August 30, 1996 and
that certain Fifth Amendment dated as of October 4, 1996 (the "Initial
Partnership Agreement");
WHEREAS, the general partner of the Partnership is General Growth
Properties, Inc., a Delaware corporation (the "General Partner");
WHEREAS, the General Partner acquired certain interests in regional
shopping centers located in Oklahoma and known as Sooner Mall and Quail Mall
(the "Acquired Assets") for a purchase price consisting of 895,928 shares (the
"Shares") of the common stock, par value $.10 per share, of the General Partner
and cash (the "Cash Portion of the Purchase Price");
WHEREAS, the Partnership made a loan (the "Loan") to the General
Partner in order to finance the payment of the Cash Portion of the Purchase
Price;
WHEREAS, concurrently herewith, the General Partner is contributing to
the capital of the Partnership the Acquired Assets in exchange for the issuance
of 895,928 units of general partnership interest in the Partnership (the
"Units") and the cancellation of the Loan;
WHEREAS, the parties hereto, being the General Partner and a majority
in interest of other partners of the Partnership, desire to amend the Initial
Partnership Agreement to issue to the General Partner the Units upon the terms
and subject to the conditions hereof.
NOW, THEREFORE, the parties hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the
meanings set forth in the Initial Partnership Agreement, as amended hereby.
<PAGE> 2
2. The issuance of the Units to the General Partner in partial
consideration for the contribution of the Acquired Assets to the capital of the
Partnership is hereby approved, and the Units are hereby issued to the General
Partner.
3. Exhibit A of the Initial Partnership Agreement is hereby
deleted and the Exhibit A attached to this Amendment is hereby inserted in lieu
thereof.
4. Except as specifically set forth herein, the Initial
Partnership Agreement shall remain in full force and effect.
5. This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware (without regard to its conflicts of law
principles).
6. This Amendment may be executed in counterparts, each of which
shall be an original and all of which together shall constitute the same
document.
7. This Amendment shall be binding upon, and inure to the benefit
of, the parties and their respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first written above.
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By:_______________________________
Its:___________________________
LIMITED PARTNERS:
APPLETON TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
-2-
<PAGE> 3
FALLBROOK TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST C
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST F
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
-3-
<PAGE> 4
MATTHEW INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST H
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW FAMILY TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBA TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
-4-
<PAGE> 5
MBB TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBC TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
The address for each of the foregoing
Limited Partners is as follows:
4001 W. 41st Street
#04A Empire Mall
Sioux Falls, South Dakota 57116
______________________________
Ann Bucksbaum Friedman
215 Keo Way
Des Moines, Iowa 50309
______________________________
John Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
STANLEY RICHARDS REVOCABLE TRUST
By:________________________________
Stanley Richards, Trustee
215 Keo Way
Des Moines, Iowa 50309
______________________________
Carolyn Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
-5-
<PAGE> 6
EXHIBIT A
<TABLE>
<CAPTION>
Number
of Percentage
General Partner: Units Interest
- --------------- ----- ----------
<S> <C> <C>
General Growth
Properties, Inc. 30,466,984.0000 64.8821%
Limited Partners:
- ----------------
Appleton Trust 1,701,236.4524 3.6229
Fallbrook Trust 488,799.4853 1.0409
Martin Investment Trust A 1,030,585.6042 2.1947
Martin Investment Trust B 1,030,585.6042 2.1947
Martin Investment Trust C 1,030,585.6042 2.1947
Martin Investment Trust F 1,030,585.6042 2.1947
Martin Investment Trust G 2,061,171.2084 4.3895
Matthew Investment Trust A 893,169.4968 1.9021
Matthew Investment Trust B 891,984.6398 1.8996
Matthew Investment Trust G 1,783,636.8896 3.7984
Matthew Investment Trust H 1,783,636.8896 3.7894
MBA Trust 293,305.2273 .6246
MBB Trust 292,120.3700 .6221
MBC Trust 291,854.0225 .6215
Matthew Family Trust G 498,815.9255 1.0623
Ann Bucksbaum Friedman 7,872.7911 .0168
Carolyn Bucksbaum 453,791.0000 .9664
John Bucksbaum 7,872.7911 .0168
Stanley Richards
Revocable Trust 149,706.3938 .3188
Piedmont Mall Associates 1,660.0000 .0035
MP Associates, L.P. 156,136.0000 .3325
PPP Associates 51,507.0000 .1097
Joe W. Lowrance 43,980.0000 .0937
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
LWLDA Limited Partnership 30,861.0000 .0657
Brent M. Milgrom 43,980.0000 .0937
GDC/A&B Limited Partnership 30,861.0000 .0657
Edward S. Brown 29,079.0000 .0619
Edward S. Brown and Susan
Garber, Husband and Wife,
as Tenants by the Entirety 27,873.0000 .0594
Lawrence A. Brown 12,731.0000 .0271
Merrill H.J. Roth 22,154.0000 .0472
The Roth Family 15,223.0000 .0324
Limited Partnership
Arthur B. Morgenstern 37,321.0000 .0795
Joseph Straus, Jr. 59,547.0000 .1268
HIA Limited Partnership 81,730.0000 .1741
Morgenstern, Rounick-Weiner 48,414.0000 .1031
Associates
Marvin Rounick and
Judy Rounick, Husband
and Wife, as Tenants-by-
the-Entirety 38,036.0000 .0810
Joint Revocable Trust of
Warren and Penny Weiner 12,679.0000 .0270
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Robyn Weiner 12,679.0000 .0270
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Kimberly Weiner 12,679.0000 .0270
---------------
Total Units: 46,957,430.0000 100.0000%
=============== =========
</TABLE>
<PAGE> 1
EXHIBIT 10.9
SEVENTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
Seventh Amendment to Amended and Restated Agreement of Limited
Partnership (the "Amendment"), dated December ___, 1996, among the undersigned
parties.
R E C I T A L S:
WHEREAS, a Delaware limited partnership known as GGP Limited
Partnership exists pursuant to that certain Amended and Restated Agreement of
Limited Partnership dated 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 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 and that certain
Sixth Amendment thereto dated as of November 27, 1996 (the "Initial Partnership
Agreement");
WHEREAS, concurrently herewith, Forbes/Cohen Properties, a Michigan
general partnership ("FCP"), Jackson Properties, a Michigan general partnership
("JP"), and Lakeview Square Associates, a Michigan general partnership ("LSA"
and, together with FCP and JP, "Contributors"), are being admitted as
additional limited partners of the Partnership pursuant to that certain
Contribution Agreement dated the date hereof, between the Partnership and FCP,
that certain Contribution Agreement dated the date hereof, between the
Partnership and JP, and that certain Contribution Agreement dated the date
hereof, between the Partnership and LSA (collectively, the "Contribution
Agreements"); and
WHEREAS, the parties hereto, being the general partner of the
Partnership, Contributors and a majority in interest of other partners of the
Partnership, desire to amend the Initial Partnership Agreement to reflect the
foregoing admission and certain other understandings as set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the
meanings set forth in the Initial Partnership Agreement, as amended hereby.
2. The issuance of Additional Units to Contributors upon the
terms set forth in the Contribution Agreements (including without limitation
the provisions of Section 11.16 thereof, which are deemed to amend the Initial
Partnership Agreement to the extent that they are inconsistent therewith) is
hereby approved and Contributors are hereby admitted as Additional Partners.
<PAGE> 2
3. Each Contributor hereby agrees to be bound by the Initial
Partnership Agreement, as the same is amended hereby and as the same hereafter
may be amended.
4. The last sentence of Section 13.7 of the Initial Partnership
Agreement may not be amended to modify the approval rights of a Contributor
without such Contributor's consent. In addition, without the consent of a
majority in interest of the holders of the Units issued pursuant to the
Contribution Agreements and this Amendment, the Initial Partnership Agreement,
as amended hereby, may not be amended to further restrict the transfer of such
Units to persons or entities who are direct or indirect owners of Contributors
on the date hereof and Section 2 hereof may not be amended.
5. Exhibit A of the Initial Partnership Agreement is hereby
deleted and the Exhibit A attached to this Amendment is hereby inserted in lieu
thereof.
6. Except as specifically set forth herein, the Initial
Partnership Agreement shall remain in full force and effect.
7. This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware (without regard to its conflicts of law
principles).
8. This Amendment may be executed in counterparts, each of which
shall be an original and all of which together shall constitute the same
document.
9. This Amendment shall be binding upon, and inure to the benefit
of, the parties and their respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first written above.
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By:_______________________________
Its:___________________________
LIMITED PARTNERS:
APPLETON TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
<PAGE> 3
FALLBROOK TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST C
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST F
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MARTIN INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST A
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
<PAGE> 4
MATTHEW INVESTMENT TRUST B
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW INVESTMENT TRUST H
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MATTHEW FAMILY TRUST G
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBA TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBB TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
MBC TRUST
By: GENERAL TRUST COMPANY,
Trustee
By:___________________________
Its:_______________________
<PAGE> 5
The address for each of the foregoing
Limited Partners is as follows:
4001 W. 41st Street
#04A Empire Mall
Sioux Falls, South Dakota 57116
______________________________
John Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
STANLEY RICHARDS REVOCABLE TRUST
By:________________________________
Stanley Richards, Trustee
215 Keo Way
Des Moines, Iowa 50309
______________________________
Carolyn Bucksbaum
215 Keo Way
Des Moines, Iowa 50309
<PAGE> 6
FORBES/COHEN PROPERTIES, a
Michigan general partnership
By: __________________________
Maurice Cohen, partner
By: __________________________
Sidney Forbes, partner
JACKSON PROPERTIES, a
Michigan general partnership
By: Forbes/Cohen Properties, a
Michigan general partnership,
a partner
By: __________________________
Maurice Cohen, partner
By: __________________________
Sidney Forbes, partner
By: The Frankel Group, a Michigan general
partnership, a partner
By: __________________________
Samuel Frankel, Trustee under
Trust Agreement dated 7/9/91,
partner
By: The Cohn Group, a Michigan general
partnership, a partner
By: __________________________
Avern Cohn, partner
<PAGE> 7
LAKEVIEW SQUARE ASSOCIATES, a
Michigan general partnership
By: Forbes/Cohen Properties, a
Michigan general partnership,
a partner
By: __________________________
Maurice Cohen, partner
By: __________________________
Sidney Forbes, partner
By: Lakeview Properties, a
Michigan limited partnership,
a partner
By: Forbes/Cohen Properties,
a Michigan general partnership,
its general partner
By: __________________________
Maurice Cohen, partner
By: __________________________
Sidney Forbes, partner
The address for Forbes/Cohen Properties,
Lakeview Square Associates and Jackson Properties
is as follows:
100 Galleria Officentre
Suite 427
Southfield, Michigan 48037
<PAGE> 8
EXHIBIT A
PARTNERS
<TABLE>
<CAPTION>
Number
of Percentage
General Partner: Units Interest
- --------------- ----- ----------
<S> <C> <C>
General Growth
Properties, Inc. 30,468,020.0000 62.9473%
Limited Partners:
- ----------------
Appleton Trust 1,701,236.4524 3.5148
Fallbrook Trust 488,799.4853 1.0099
Martin Investment Trust A 1,030,585.6042 2.1292
Martin Investment Trust B 1,030,585.6042 2.1292
Martin Investment Trust C 1,030,585.6042 2.1292
Martin Investment Trust F 1,030,585.6042 2.1292
Martin Investment Trust G 2,061,171.2084 4.2584
Matthew Investment Trust A 893,169.4968 1.8453
Matthew Investment Trust B 891,984.6398 1.8429
Matthew Investment Trust G 1,783,636.8896 3.6850
Matthew Investment Trust H 1,783,636.8896 3.6850
MBA Trust 293,305.2273 .6060
MBB Trust 292,120.3700 .6035
MBC Trust 291,854.0225 .6030
Matthew Family Trust G 498,815.9255 1.0306
Carolyn Bucksbaum 453,791.0000 .9375
Ann Bucksbaum Friedman 7,872.7911 .0163
John Bucksbaum 7,872.7911 .0163
Stanley Richards
Revocable Trust 149,706.3938 .3093
Joe W. Lowrance 57,620.0000 .1190
</TABLE>
<PAGE> 9
<TABLE>
<S> <C> <C>
LWLDA Limited Partnership 45,223.0000 .0934
Brent M. Milgrom 57,620.0000 .1190
GDC/A&B Limited Partnership 45,223.0000 .0934
Edward S. Brown 38,098.0000 .0787
Edward S. Brown and Susan
Garber, Husband and Wife,
as Tenants by the Entirety 40,846.0000 .0844
Lawrence A. Brown 17,647.0000 .0365
Merrill H.J. Roth 29,024.0000 .0600
The Roth Family 22,308.0000 .0461
Limited Partnership
Arthur B. Morgenstern 54,625.0000 .1129
Joseph Straus, Jr. 78,017.0000 .1612
HIA Limited Partnership 107,080.0000 .2212
Morgenstern, Rounick-Weiner 63,422.0000 .1310
Associates
Marvin Rounick and
Judy Rounick, Husband
and Wife, as Tenants-by-
the-Entirety 55,670.0000 .1150
Joint Revocable Trust of
Warren and Penny Weiner 18,557.0000 .0383
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Robyn Weiner 18,557.0000 .0383
Irrevocable Trust of
Warren Weiner dated
January 24, 1978 F/B/O
Kimberly Weiner 18,557.0000 .0383
Forbes/Cohen Properties 801,842.0000 1.6566
</TABLE>
2
<PAGE> 10
<TABLE>
<S> <C> <C>
Jackson Properties 346,795.0000 .7165
Lakeview Square Properties 296,363.0000 .6123
------------ -------
Total Units: 48,402,430.0000 100.0000%
=============== ========
</TABLE>
3
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
General Growth Properties, Inc. on Form S-3 of our report dated February 13,
1996, on our audits of the consolidated financial statements and financial
statement schedule of General Growth Properties, Inc. as of December 31, 1995
and 1994, and for the three years in the period ended December 31, 1995, and of
our report dated February 13, 1996, on our audits of the consolidated financial
statements of CenterMark Properties, Inc. as of December 31, 1995 and 1994 and
for the year ended December 31, 1995 and the periods from February 12, 1994
through December 31, 1994 and from January 1, 1994 through February 12, 1994,
which reports are included in the Annual Report on Form 10-K. We also consent
to the incorporation by reference of our report dated January 10, 1997 on our
audit of the combined statement of revenues and certain expenses of the Lansing
Mall, the Westfield Mall and the Lakeview Mall for the year ended December 31,
1995, which report is included in the Current Report on Form 8-K/A, as amended,
dated February 18, 1997. We also consent to the reference to our firm under
the caption "Experts".
/s/ COOPERS & LYBRAND L.L.P.
Chicago, Illinois
March 5, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
General Growth Properties, Inc. on Form S-3 of our report dated February 25,
1994 on our audit of the consolidated financial statements of CenterMark
Properties, Inc. for the year ended December 31, 1993, appearing in the Annual
Report on Form 10-K of General Growth Properties, Inc. for the year ended
December 31, 1995 and to the reference to us under the heading "Experts" in the
prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
/s/ DELOITTE & TOUCHE LLP
St. Louis, Missouri
March 6, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
General Growth Properties, Inc. on Form S-3 of our report dated March 15, 1996
on our audit of the consolidated financial statements of GGP/Homart, Inc. as of
December 31, 1995, and for the period from December 22, 1995 (Date of
Acquisition) through December 31, 1995, appearing in the Annual Report on Form
10-K of General Growth Properties, Inc. for the year ended December 31, 1995
and to the reference to us under the heading "Experts" in the prospectus, which
is part of this Registration Statement.
DELOITTE & TOUCHE LLP
/s/ DELOITTE & TOUCHE LLP
Chicago, Illinois
March 6, 1997
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in the Registration Statement of
General Growth Properties, Inc. on Forms S-3 of our report dated July 19, 1996
on our audit of the Statement of Revenues and Certain Expenses of Park Mall for
the year ended December 31, 1995, which report is included in the Current
Report on Form 8-K/A, as amended, dated February 18, 1997. We also consent to
the reference to our firm under the caption "Experts."
/s/ ADDISON, ROBERTS & LUDWIG, P.C.
Tucson, Arizona
March 7, 1997
