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EXHIBIT 10.1
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
GGPLP L.L.C.
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
GGPLP L.L.C.
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THIS AMENDED AND RESTATED OPERATING AGREEMENT is made and entered into
this 25th day of May, 2000, by and among the undersigned parties.
W I T N E S S E T H:
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WHEREAS, a Delaware limited liability company known as GGPLP
L.L.C. (the "Company") exists pursuant to that certain Operating Agreement dated
as of May 17, 2000 (the "Original Agreement"), made by GGP Limited Partnership,
a Delaware limited partnership (the "Operating Partnership"), and the Delaware
Limited Liability Company Act;
WHEREAS, concurrently herewith, GGP American Properties Inc.
("GGP American") and Caledonian Holding Company, Inc. ("Caledonian"), affiliates
of the Operating Partnership, are contributing membership and partnership
interests in certain limited liability companies and partnerships to the capital
of the Company and, in exchange therefor, the Company is issuing common units of
membership interest to them;
WHEREAS, concurrently herewith, Goldman Sachs 2000 Exchange
Place Fund, L.P. (the "Goldman Exchange Fund") is contributing $175,000,000 to
the capital of the Company and, in exchange therefor, the Company is issuing to
the Goldman Exchange Fund preferred units of membership interest in the Company;
and
WHEREAS, the parties hereto, being all of the members of the
Company, desire to amend and restate the Original Agreement in its entirety to
reflect such capital contributions and otherwise set forth their understandings
in respect of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound, do hereby amend and restate the Original
Agreement to read in its entirety as follows:
ARTICLE I
DEFINITIONS; ETC.
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1.1 DEFINITIONS. Except as otherwise herein expressly provided, the following
terms and phrases shall have the meanings set forth below (such definitions to
be equally applicable to the singular and plural forms of the terms so defined):
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"Accountants" shall mean the firm or firms of independent certified
public accountants selected by the Managing Member on behalf of the Company and
the Property Partnerships.
"Act" shall mean the Limited Liability Company Act as enacted in the
State of Delaware, and as the same may hereafter be amended from time to time.
"Adjusted Capital Account Deficit" shall mean, with respect to any
Member, the deficit balance, if any, in such Member's Capital Account as of the
end of any relevant fiscal year and after giving effect to the following
adjustments:
(a) credit to such Capital Account any amounts which such Member
is obligated or treated as obligated to restore with respect to any
deficit balance in such Capital Account pursuant to Section
1.704-1(b)(2)(ii)(c) of the Regulations, or is deemed to be obligated
to restore with respect to any deficit balance pursuant to the
penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of
the Regulations; and
(b) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the - - - Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the requirements of the alternate test for economic
effect contained in Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be
interpreted consistently therewith.
"Administrative Expenses" shall mean (i) all administrative and
operating costs and expenses incurred by the Company, (ii) all administrative,
operating and other costs and expenses incurred by the Property Partnerships,
which expenses are being assumed by the Company pursuant to Section 6.1, (iii) a
pro rata portion (as determined in the reasonable judgment of the Managing
Member) of administrative costs and expenses of the Managing Member and GGPI,
including salaries paid to officers of the Managing Member and GGPI and
accounting and legal expenses undertaken by the Managing Member and GGPI on
behalf or for the benefit of the Company, and (iv) to the extent not included in
clause (iii) above, a pro rata portion (as determined in the reasonable
discretion of the Managing Member) of REIT Expenses.
"Affiliate" shall mean, with respect to any Member (or as to any other
Person the affiliates of whom are relevant for purposes of any of the provisions
of this Agreement), (i) any member of the Immediate Family of such Member; (ii)
any trustee or beneficiary of a Member; (iii) any legal representative,
successor, or assignee of such Member or any Person referred to in the preceding
clauses (i) and (ii); (iv) any trustee of any trust for the benefit of such
Member or any Person referred to in the preceding clauses (i) through (iii); or
(v) any Person which directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such Member or any
Person referred to in the preceding clauses (i) through (iv).
"Agreement" shall mean this Amended and Restated Operating Agreement,
as originally executed and as amended, modified, supplemented or restated from
time to time, as the context requires.
"Approved Replacement Property" means, with respect to a Property being
sold, conveyed, transferred or otherwise disposed of, a real estate asset with a
fair market value of at
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least 90% of the fair market value of the Property being sold, conveyed,
transferred or disposed of.
"Assumed Debt" shall have the meaning set forth in Section 4.3(i)(ii).
"Bankruptcy" shall mean, with respect to any Member or the Company, (i)
the commencement by such Member or the Company of any proceeding seeking relief
under any provision or chapter of the federal Bankruptcy Code or any other
federal or state law relating to insolvency, bankruptcy or reorganization, (ii)
an adjudication that such Member or the Company is insolvent or bankrupt; (iii)
the entry of an order for relief under the federal Bankruptcy Code with respect
to such Member or the Company, (iv) the filing of any such petition or the
commencement of any such case or proceeding against such Member or the Company,
unless such petition and the case or proceeding initiated thereby are dismissed
within ninety (90) days from the date of such filing, (v) the filing of an
answer by such Member or the Company admitting the allegations of any such
petition, (vi) the appointment of a trustee, receiver or custodian for all or
substantially all of the assets of such Member or the Company unless such
appointment is vacated or dismissed within ninety (90) days from the date of
such appointment but not less than five (5) days before the proposed sale of any
assets of such Member or the Company, (vii) the insolvency of such Member or the
Company or the execution by such Member or the Company of a general assignment
for the benefit of creditors, (viii) the convening by such Member or the Company
of a meeting of its creditors, or any class thereof, for purposes of effecting a
moratorium upon or extension or composition of its debts, (ix) the failure of
such Member or the Company to pay its debts as they mature, (x) the levy,
attachment, execution or other seizure of substantially all of the assets of
such Member or the Company where such seizure is not discharged within thirty
(30) days thereafter, or (xi) the admission by such Member or the Company in
writing of its inability to pay its debts as they mature or that it is generally
not paying its debts as they become due.
"Business Day" shall mean a day other than a Saturday, Sunday or a day
on which state or federally chartered banking institutions in New York, New York
are not required to be open.
"Capital Account" shall mean, with respect to any Member, the separate
"book" account which the Company shall establish and maintain for such Member in
accordance with Section 704(b) of the Code and Section 1.704-1(b)(2)(iv) of the
Regulations and such other provisions of Section 1.704-1(b) of the Regulations
that must be complied with in order for the Capital Accounts to be determined in
accordance with the provisions of said Regulations. In furtherance of the
foregoing, the Capital Accounts shall be maintained in compliance with Section
1.704-1(b)(2)(iv) of the Regulations; and the provisions hereof shall be
interpreted and applied in a manner consistent therewith. In the event that any
Units are transferred in accordance with the terms of this Agreement, the
Capital Account, at the time of the transfer, of the transferor attributable to
the transferred Units shall carry over to the transferee.
"Capital Contribution" shall mean, with respect to any Member, the
amount of money and the initial Gross Asset Value of any property other than
money contributed to the Company with respect to the Units held by such Member
(net of liabilities to which such property is subject).
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"Certificate" shall mean the Certificate of Formation establishing the
Company, as filed with the office of the Delaware Secretary of State, as it may
be amended from time to time in accordance with the terms of this Agreement and
the Act.
"Charter" shall mean the certificate of incorporation of GGPI, as filed
with the office of the Delaware Secretary of State, as it may be amended from
time to time.
"Closing Price" on any date shall mean the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Common
Shares are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the
Common Shares are listed or admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price, or if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System or, if such system is no
longer in use, the principal other automated quotations system that may then be
in use or, if the Common Shares are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Common Shares as such person is selected
from time to time by the Board of Directors of GGPI.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Shares" shall mean the shares of the common stock, par value
$.10 per share, of GGPI.
"Common Units" shall mean all Units other than Preferred Units.
"Common Unit Record Date" shall mean the record date established by the
Managing Member for a distribution of Net Operating Cash Flow pursuant to
Section 5.2.
"Company" shall have the meaning set forth in the preliminary recitals
hereto.
"Consent of the Holders of Common Units" shall mean the written consent
of the holders of a Majority-In-Interest of the Common Units, which Consent
shall be obtained prior to the taking of any action for which it is required by
this Agreement and may be given or withheld by the holders of a
Majority-In-Interest of the Common Units, unless otherwise expressly provided
herein, in their sole and absolute discretion.
"Consolidated Group" means the Company and all Subsidiaries.
"Consolidated Group Pro Rata Share" shall mean, with respect to any
Investment Affiliate, the percentage of the aggregate equity ownership interests
held by the Consolidated Group in such Investment Affiliate, determined by
calculating the greater of (i) the percentage of the issued and outstanding
stock, partnership interests or membership interests in such Investment
Affiliate held by the Consolidated Group in the aggregate and (ii) the
percentage of
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the total book value of such Investment Affiliate that would be received by the
Consolidated Group in the aggregate upon liquidation of such Investment
Affiliate after repayment in full of all Indebtedness of such Investment
Affiliate.
"Consolidated Interest Expense" shall mean, for any period, without
duplication, the sum of (a) the amount of interest expense, determined in
accordance with GAAP, of the Consolidated Group for such period related to
Consolidated Outstanding Indebtedness for such period plus (b) the Consolidated
Group Pro Rata Share of any interest expense, determined in accordance with
GAAP, of any Investment Affiliate, for such period, whether recourse or
non-recourse (in the case of each of clause (a) or (b), excluding prepayment
fees, premiums or penalties and net of amortization of deferred costs associated
with new financings or refinancings of existing Indebtedness) less (c) with
respect to each Subsidiary in which the Company does not directly or indirectly
hold a 100% ownership interest, a percentage of the interest expense
attributable to such consolidated Subsidiary which is included under clause (a)
of this definition and which is related to Indebtedness which is not guaranteed
by the Company equal to the percentage ownership interest in such consolidated
Subsidiary which is not held directly or indirectly by the Company.
"Consolidated Outstanding_Indebtedness" shall mean, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP, plus (b) the applicable Consolidated Group Pro Rata
Share of any Indebtedness of each Investment Affiliate other than Indebtedness
of such Investment Affiliate to a member of the Consolidated Group, less (c)
with respect to each Subsidiary in which the Company does not directly or
indirectly hold a 100% ownership interest, a percentage of any Indebtedness of
such Subsidiary which is not guaranteed by the Company equal to the percentage
ownership interest in such consolidated Subsidiary which is not held directly or
indirectly by the Company.
"Consolidated Tangible Net Worth" shall mean, the excess of (a) the
total fair market value of the assets (including cash and cash equivalents) of
the Consolidated Group and the applicable Consolidated Group Pro Rata Shares of
the assets of the Investment Affiliates over (b) total liabilities of the
Company and its Subsidiaries; provided, that for purposes of this definition,
the determination of total assets shall exclude (a) all assets which in
accordance with GAAP should be classified as intangible assets (such as
goodwill, patents, trademarks, copyrights, franchises, unamortized debt
discount, capitalized research and development costs, capitalized software costs
and organization costs), (b) cash held in a sinking or other similar fund
established for the purpose of redemption or other retirement of capital stock
and (c) to the extent not already deducted from total assets, reserves for
depreciation, depletion, obsolescence or amortization of properties and other
reserves or appropriations of retained earnings which have been established or
which a prudent owner and operator should establish in connection with the
business of operating and maintaining the Company properties. For purposes of
the calculation of Consolidated Tangible Net Worth, the fair market value of
income producing real property shall be the Net Operating Income of such
property divided by a 9% capitalization rate and the fair market value of
non-income producing real property shall be the acquisition or construction cost
thereof.
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"Control" shall have the meaning provided in the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Current Per Share Market Price" shall mean, as of any date, the
average of the Closing Price for the twenty consecutive Trading Days ending on
such date.
"Demand Notice" shall have the meaning set forth in Section 9.2.
"Depreciation" shall mean, with respect to any asset of the Company for
any fiscal year or other period, the depreciation, depletion or amortization, as
the case may be, allowed or allowable for Federal income tax purposes in respect
of such asset for such fiscal year or other period; provided, however, that if
there is a difference between the Gross Asset Value and the adjusted tax basis
of such asset, Depreciation shall mean "book depreciation, depletion or
amortization" as determined under Section 1.704-1(b)(2)(iv)(g)(3) of the
Regulations.
"Entity" shall mean any general partnership, limited partnership,
limited liability company, corporation, joint venture, trust, business trust,
cooperative, association or other entity.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time (or any corresponding provisions of succeeding
laws).
"Event" shall have the meaning set forth in Section 4.3(c).
"Excess Units" shall have the meaning set forth in Section
4.3(g)(i)(F).
"Financial Statements" shall mean financial statements (balance sheet,
statement of income, statement of partners' equity and statement of cash flows)
prepared in accordance with generally accepted accounting principles.
"Fixed Charges" shall mean the sum of (a) Consolidated Interest Expense
for such period plus (b) the aggregate of all scheduled principal payments on
Indebtedness during such period (excluding balloon, bullet or similar payments
of principal due upon the stated maturity of Indebtedness) of the Consolidated
Group and the Consolidated Group Pro Rata Share of such amounts plus (c) the
aggregate of all dividends paid or accrued on any shares of Preferred Stock
issued by members of the Consolidated Group and the Consolidated Group Pro Rata
Share of all dividends paid or accrued on any shares of Preferred Stock issued
by Investment Affiliates (provided that dividends paid or accrued on shares of
Preferred Stock owned by the Company or any Subsidiary that is 100% owned by the
Company shall be excluded from the amount calculated under clause (c) of this
definition and with respect to dividends on Preferred Stock owned by a
consolidated Subsidiary of the Company in which the Company does not directly or
indirectly hold a 100% ownership interest, a percentage of the paid or accrued
dividends attributable to such consolidated Subsidiary shall be excluded from
the amount calculated under clause (c) of this definition equal to the
percentage ownership interest in such consolidated Subsidiary which is held
directly or indirectly by the Company).
"GAAP" shall mean generally accepted accounting principles in the
United States as in effect from time to time.
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"GGPI" shall mean General Growth Properties, Inc., a Delaware
corporation and the general partner of the Managing Member.
"Gross Asset Value" shall mean, with respect to any asset of the
Company, such asset's adjusted basis for Federal income tax purposes, except as
follows:
(a) the initial Gross Asset Value of (i) the assets contributed
by each Member to the Company prior to the date hereof is the gross
fair market value of such contributed assets as indicated in the books
and records of the Company as of the date hereof, and (ii) any asset
hereafter contributed by a Member (including the Managing Member),
other than money, is the gross fair market value thereof as reasonably
determined by the Managing Member using such reasonable method of
valuation as the Managing Member may adopt;
(b) if the Managing Member reasonably determines that an
adjustment is necessary or appropriate to reflect the relative economic
interests of the Members, the Gross Asset Values of all Company assets
shall be adjusted to equal their respective gross fair market values,
as reasonably determined by the Managing Member, as of the following
times:
(i) a Capital Contribution (other than a de minimis Capital
Contribution) to the Company by a new or existing Member as
consideration for Units;
(ii) the distribution by the Company to a Member of more than
a de minimis amount of Company property as consideration for the
redemption of Units; and
(iii) the liquidation of the Company within the meaning of
Section 1.704-1(b)(2)(ii)(g) of the Regulations;
(c) the Gross Asset Values of Company assets distributed to any
Member shall be the gross fair market values of such assets (taking
Section 7701(g) of the Code into account) as reasonably determined by
the Managing Member as of the date of distribution; and
(d) the Gross Asset Values of Company assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Sections 734(b) or 743(b) of the Code, but only to
the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the
Regulations (See Exhibit A); provided, however, that Gross Asset Values
shall not be adjusted pursuant to this paragraph to the extent that the
Managing Member reasonably determines that an adjustment pursuant to
paragraph (b) above is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to
this paragraph (d).
At all times, Gross Asset Values shall be adjusted by any Depreciation
taken into account with respect to the Company's assets for purposes of
computing Net Income and Net Loss. Any adjustment to the Gross Asset Values of
Company property shall require an adjustment to the Members' Capital Accounts;
as for the manner in which such adjustments are allocated to the
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Capital Accounts, see paragraph (c) of the definition of Net Income and Net Loss
in the case of adjustment by Depreciation, and paragraph (d) of said definition
in all other cases.
"Immediate Family" shall mean, with respect to any Person, such
Person's spouse, parents, parents-in-law, descendants, nephews, nieces,
brothers, sisters, brothers-in-law, sisters-in-law and children-in-law.
"Indebtedness" of any Person at any date means, without duplication,
(a) all indebtedness of such Person for borrowed money including without
limitation any repurchase obligation or liability of such Person with respect to
securities, accounts or notes receivable sold by such Person, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), to the extent
such obligations constitute indebtedness for Purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) all capitalized lease obligations of such Person, (e)
all obligations of such Person in respect of acceptances issued or created for
the account of such Person, (f) all guarantee obligations of such Person
(excluding in any calculation of consolidated Indebtedness of the Consolidated
Group, guarantee obligations of one member of the Consolidated Group in respect
of primary reimbursement obligations of any other member of the Consolidated
Group) (g) all reimbursement obligations of such Person for letters of credit
and other contingent liabilities, and (h) all liabilities secured by any lien
(other than liens for taxes not yet due and payable) on any property owned by
such Person even though such Person has not assumed or otherwise become liable
for the payment thereof. Notwithstanding the foregoing, any indebtedness between
or among the Company and any of its Subsidiaries or among the Subsidiaries and
the Consolidated Group Pro Rata Share of any indebtedness between or among the
Company or any Subsidiary and any Investment Affiliate or among Investment
Affiliates shall not be treated as Indebtedness.
"Investment Affiliate" means any Person in which the Consolidated
Group, directly or indirectly, has an ownership interest, whose financial
results are not consolidated under GAAP with the financial results of the
Consolidated Group.
"Junior Units" shall have the meaning set forth in Section 4.3(b)(i).
"Lien" shall mean any liens, security interests, mortgages, deeds of
trust, charges, claims, encumbrances, pledges, options, rights of first offer or
first refusal and any other rights or interests of others of any kind or nature,
actual or contingent, or other similar encumbrances of any nature whatsoever.
"Liquidating Trustee" shall mean such individual or Entity as is
selected as the Liquidating Trustee hereunder by the Managing Member, which
individual or Entity may include the Managing Member or an Affiliate of the
Managing Member, provided such Liquidating Trustee agrees in writing to be bound
by the terms of this Agreement. The Liquidating Trustee shall be empowered to
give and receive notices, reports and payments in connection with the
dissolution, liquidation and/or winding-up of the Company and shall hold and
exercise such other rights and powers as are necessary or required to permit all
parties to deal with the Liquidating Trustee in connection with the dissolution,
liquidation and/or winding-up of the Company.
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"Majority-In-Interest of the Common Units" shall mean holders of more
than fifty percent (50%) of then issued and outstanding Common Units.
"Management Agreement" shall mean a property management agreement with
respect to the property management of each Property entered into (a) with
respect to any Property in which the Company directly holds or acquires
ownership of a fee or leasehold interest, between the Company, as owner, and the
Property Manager, or such other property manager as the Managing Member shall
engage, as manager, and (b) with respect to all Properties other than those
described in (a) above, between each Property Partnership, as owner, and the
Property Manager, or such other property manager as the Managing Member shall
engage, as such agreement may be amended, modified or supplemented from time to
time.
"Managing Member" shall mean the Operating Partnership, its duly
admitted successors and assigns and any other Person who is a Managing Member of
the Company at the time of reference thereto. The Managing Member may not be
removed as Managing Member for any reason.
"Members" shall mean the Persons listed under the caption "Members" on
the signature pages hereto, their permitted successors or assigns or any Person
who, at the time of reference thereto, is a member of the Company, including the
holders of Common Units and Preferred Units on the date thereof.
"Minimum Gain Attributable to Partner Nonrecourse Debt" shall mean
"partner nonrecourse debt minimum gain" as determined in accordance with
Regulation Section 1.704-2(i)(2).
"Net Financing Proceeds" shall mean the cash proceeds received by the
Company in connection with any borrowing or refinancing of borrowing by or on
behalf of the Company or by or on behalf of any Property Partnership (whether or
not secured), after deduction of all costs and expenses incurred by the Company
or the Property Partnership in connection with such borrowing, and after
deduction of that portion of such proceeds used to repay any other indebtedness
of the Company or Property Partnerships, or any interest or premium thereon.
"Net Income or Net Loss" shall mean, for each fiscal year or other
applicable period, an amount equal to the Company's net income or loss for such
year or period as determined for federal income tax purposes by the Accountants,
determined in accordance with Section 703(a) of the Code (for this purpose, all
items of income, gain, loss or deduction required to be stated separately
pursuant to Section 703(a) of the Code shall be included in taxable income or
loss), with the following adjustments: (a) by including as an item of gross
income any tax-exempt income received by the Company; (b) by treating as a
deductible expense any expenditure of the Company described in Section
705(a)(2)(B) of the Code (including amounts paid or incurred to organize the
Company (unless an election is made pursuant to Code Section 709(b)) or to
promote the sale of interests in the Company and by treating deductions for any
losses incurred in connection with the sale or exchange of Company property
disallowed pursuant to Section 267(a)(1) or Section 707(b) of the Code as
expenditures described in Section 705(a)(2)(B) of the Code); (c) in lieu of
depreciation, depletion, amortization, and other cost recovery deductions taken
into account in computing total income or loss, there shall be taken into
account Depreciation; (d) gain or loss resulting from any disposition of Company
property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Gross Asset Value of such
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property rather than its adjusted tax basis; and (e) in the event of an
adjustment of the Gross Asset Value of any Company asset which requires that the
Capital Accounts of the Company be adjusted pursuant to Regulation Section
1.704-1(b)(2)(iv)(e), (f) and (m), the amount of such adjustment is to be taken
into account as additional Net Income or Net Loss pursuant to Exhibit A.
"Net Operating Cash Flow" shall mean, with respect to any fiscal period
of the Company, the excess, if any, of "Receipts" over "Expenditures." For
purposes hereof, the term "Receipts" means the sum of all cash receipts of the
Company from all sources for such period, including Net Sale Proceeds and Net
Financing Proceeds but excluding Capital Contributions, and any amounts held as
reserves as of the last day of such period which the Managing Member reasonably
deems to be in excess of necessary reserves as determined below. The term
"Expenditures" means the sum of (a) all cash expenses or expenditures of the
Company for such period, (b) the amount of all payments of principal and
interest on account of any indebtedness of the Company, or amounts due on such
indebtedness during such period (in the case of clauses (a) and (b), excluding
expenses or expenditures paid from previously established reserves or deducted
in computing Net Financing Proceeds or Net Sales Proceeds), and (c) such
additional cash reserves as of the last day of such period as the Managing
Member deems necessary for any capital or operating expenditure permitted
hereunder.
"Net Operating Income" means, with respect to any property of the
Company, any Subsidiary and any Investment Affiliate (to the extent, directly or
indirectly, owned by the Company) for any period, the sum of (a) "property
rental and other income" of the Consolidated Group (as determined by GAAP)
attributable to such property accruing for such period less the amount of all
operating expenses other than taxes, depreciation, interest expense, and
amortization (as determined in accordance with GAAP) incurred in connection with
and directly attributable to the ownership and operation of such property for
such period plus (b) the Consolidated Group Pro Rata Share of "property rental
and other income" of an Investment Affiliate, calculated in the same manner as
in clause (a).
"Net Sale Proceeds" means the cash proceeds received by the Company in
connection with a sale of any asset by or on behalf of the Company or by or on
behalf of a Property Partnership after deduction of any costs or expenses
incurred by the Company or a Property Partnership, or payable specifically out
of the proceeds of such sale (including, without limitation, any repayment of
any indebtedness required to be repaid as a result of such sale or which the
Managing Member elects to repay out of the proceeds of such sale, together with
accrued interest and premium, if any, thereon and any sales commissions or other
costs and expenses due and payable to any Person in connection with a sale,
including to a Member or its Affiliates).
"19.95% Limit" shall have the meaning set forth in Section
4.3(g)(i)(D).
"Nonrecourse Deductions" shall have the meaning set forth in Sections
1.704-2(b)(1) and (c) of the Regulations.
"Nonrecourse Liabilities" shall have the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"Original Agreement" shall have the meaning set forth in the
preliminary recitals hereto.
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"Parity Units" shall have the meaning set forth in Section 4.3(b).
"Partner Nonrecourse Deductions" shall have the meaning set forth in
Section 1.704-2(i)(2) of the Regulations.
"Partnership Minimum Gain" shall have the meaning set forth in Section
1.704-2(b)(2) of the Regulations.
"Person" or "person" shall mean any individual or Entity.
"Precontribution Gain" shall have the meaning set forth in Exhibit A.
"Preferred Stock" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"Preferred Units" shall mean the Series A Preferred Units, and any
other series of preferred units of partnership interest in the Partnership that
are established and issued from time to time in accordance with the terms
hereof.
"Prime Rate" shall mean the prime rate announced from time to time by
Wells Fargo Bank, N.A. or any successor thereof.
"Property" shall mean a Shopping Center Project in which the Company or
any Property Partnership, directly or indirectly, acquires ownership of a fee or
leasehold interest.
"Property Manager" shall mean General Growth Management, Inc., a
Delaware corporation, or its successors or assigns.
"Property Partnership" shall mean and include any partnership, limited
liability company or other Entity in which the Company directly or indirectly is
or becomes a partner, member or other equity participant and which has been or
is formed for the purpose of directly or indirectly acquiring, developing or
owning a Property or a proposed Property.
"Property Partnership Interests" shall mean and include the interest of
the Company or any other Entity as a partner, member or other equity participant
in any Property Partnership.
"PTP" shall have the meaning set forth in Section 4.3(g)(i)(C).
"Qualified Individual" shall have the meaning set forth in Section 9.2.
"Regulations" shall mean the final, temporary or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Regulatory Allocations" shall have the meaning set forth in Exhibit A.
"REIT" shall mean a real estate investment trust as defined in Section
856 of the Code.
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"REIT Expenses" shall mean (i) costs and expenses relating to the
formation and continuity of existence of GGPI and its subsidiaries (which
subsidiaries shall, for purposes of this definition, be included within the
definition of GGPI), including taxes, fees and assessments associated therewith,
any and all costs, expenses or fees payable to any director or trustee of GGPI
or such subsidiaries, (ii) costs and expenses relating to any offer or
registration of securities by GGPI and all statements, reports, fees and
expenses incidental thereto, including underwriting discounts and selling
commissions applicable to any such offer of securities, (iii) costs and expenses
associated with the preparation and filing of any periodic reports by GGPI under
federal, state or local laws or regulations, including filings with the SEC,
(iv)costs and expenses associated with compliance by GGPI with laws, rules and
regulations promulgated by any regulatory body, including the SEC, and (v) all
other operating or administrative costs of GGPI incurred in the ordinary course
of its business.
"REIT Preferred Shares" shall mean 8.95% Cumulative Redeemable
Preferred Stock, Series B, par value $100 per share, of GGPI.
"REIT Requirements" shall have the meaning set forth in Section 5.2.
"Requesting Party" shall have the meaning set forth in Section 9.2.
"Responding Party" shall have the meaning set forth in Section 9.2.
"SEC" shall mean the United States Securities and Exchange Commission.
"Section 704(c) Tax Items" shall have the meaning set forth in Exhibit
A.
"Series A Accumulated Preferred Unit Distributions" shall have the
meaning set forth in Section 4.3(d)(ii).
"Series A Common Exchange Rate" shall have the meaning set forth in
Section 4.3(g)(i)(B).
"Series A Exchange Price" shall have the meaning set forth in Section
4.3(g)(i)(E).
"Series A Preferred Exchange Rate" shall have the meaning set forth in
Section 4.3(g)(i)(A).
"Series A Preferred Units" shall have the meaning set forth in Section
4.3(a).
"Series A Preferred Unit Distribution" shall have the meaning set forth
in Section 4.3(d)(i).
"Series A Preferred Unit Distribution Payment Date" shall have the
meaning set forth in Section 4.3(d)(i).
"Series A Redemption Date" shall have the meaning set forth in Section
4.3(h)(iii).
"Series A Redemption Price" shall have the meaning set forth in Section
4.3(h)(i).
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"Series A Third Party Redemption Date" shall have the meaning set forth
in Section 4.3(h)(ii).
"Shopping Center Project" shall mean any shopping center, including
construction and improvement activities undertaken with respect thereto and
off-site improvements, on-site improvements, structures, buildings and/or
related parking and other facilities.
"Subsidiary" shall mean all Entities that are consolidated with the
Company for financial reporting purposes under GAAP.
"Substituted Member" shall have the meaning set forth in Section 8.2.
"Tax Items" shall have the meaning set forth in Exhibit A.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Common Shares are listed or admitted to trading
is open for the transaction of business or, if the Common Shares are not listed
or admitted to trading on any national securities exchange, shall mean any
Business Day.
"Units" shall mean the units of membership interest in the Company
established and issued from time to time in accordance with the terms hereof,
including without limitation Common Units and Preferred Units. The number and
designation of all Units held by each Member is set forth opposite such Member's
name on Schedule A.
1.2 EXHIBITS, ETC. References to an "Exhibit" or to a "Schedule" are,
unless otherwise specified, to one of the Exhibits or Schedules attached to this
Agreement, and references to an "Article" or a "Section" are, unless otherwise
specified, to one of the Articles or Sections of this Agreement. Each Exhibit
and Schedule attached hereto and referred to herein is hereby incorporated
herein by reference.
1.3 PRONOUNS AND HEADINGS. As used herein, all pronouns shall include
the masculine, feminine and neuter, and all defined terms shall include the
singular and plural thereof wherever the context and facts require such
construction. The headings, titles and subtitles herein are inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof. Any references in this Agreement to "including" shall be
deemed to mean "including without limitation".
ARTICLE II
CONTINUATION
------------
2.1 CONTINUATION. The Company was formed as a limited liability company
under the Act on May 17, 2000 by the filing of the Certificate with the Delaware
Secretary of State on May 17, 2000. The parties hereby ratify the execution and
filing by the authorized person (within the meaning of the Act) identified
therein. The Members agree that the rights and liabilities of the Members shall
be as provided in this Agreement (which amends and restates and supercedes the
Original Agreement in its entirety) and, to the extent not provided herein, in
the Act. The Managing Member shall cause such notices, instruments, documents,
or certificates as
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may be required by applicable law or which may be necessary to enable the
Company to conduct its business and to own its properties in the Company name to
be filed or recorded in all appropriate public offices.
2.2 NAME. The business of the Company shall be conducted under the name
of "GGPLP L.L.C." or such other name as the Managing Member may select, and all
transactions of the Company, to the extent permitted by applicable law, shall be
carried on and completed in such name.
2.3 CHARACTER OF THE BUSINESS. The purpose of the Company shall be to
acquire, hold, own, develop, construct, improve, maintain, operate, sell, lease,
transfer, encumber, convey, exchange, and otherwise dispose of or deal with
Properties; to acquire, hold, own, develop, construct, improve, maintain,
operate, sell, lease, transfer, encumber, convey, exchange, and otherwise
dispose of or deal with real and personal property of all kinds; to exercise all
of the powers of a partner, member or other equity participant in Property
Partnerships; to acquire, own, deal with and dispose of Property Partnership
Interests; to undertake such other activities as may be necessary, advisable,
desirable or convenient to the business of the Company, and to engage in such
other ancillary activities as shall be necessary or desirable to effectuate the
foregoing purposes. The Company shall have all powers necessary or desirable to
accomplish the purposes enumerated. In connection with and without limiting the
foregoing, but subject to all of the terms, covenants, conditions and
limitations contained in this Agreement and any other agreement entered into by
the Company, the Company shall have full power and authority, directly or
through its interests in Property Partnerships, to enter into, perform, and
carry out contracts of any kind, to borrow money and to issue evidences of
indebtedness, whether or not secured by mortgage, trust deed, pledge or other
Lien, and, directly or indirectly, to acquire and construct additional
Properties.
2.4 LOCATION OF THE PRINCIPAL PLACE OF BUSINESS. The location of the
principal place of business of the Company shall be at 110 North Wacker Drive,
Chicago, Illinois 60606, or at such other location as shall be selected by the
Managing Member from time to time in its sole discretion.
2.5 REGISTERED AGENT AND REGISTERED OFFICE. The Company shall maintain
a registered agent and registered office as is required by the Act.
ARTICLE III
TERM
----
3.1 COMMENCEMENT. The Company heretofore commenced business as a
limited liability company.
3.2 DISSOLUTION. The Company shall continue until dissolved upon the
occurrence of the earliest of the following events:
(a) The dissolution, termination, retirement or Bankruptcy of the
Managing Member unless the Partnership is continued as provided in Section 8.1;
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(b) The sale or other disposition of all or substantially all the
assets of the Company unless the Managing Member elects to continue the Company
business for the purpose of the receipt and the collection of indebtedness or
the collection of any other consideration to be received in exchange for the
assets of the Company (which activities shall be deemed to be part of the
winding up of the affairs of the Company);
(c) Dissolution required by operation of law; or
(d) December 31, 2075.
ARTICLE IV
CLASSES OF UNITS
----------------
4.1 COMMON UNITS. The Company has issued to the Managing Member 911,900
common units of membership interest (the "Common Units") and, in exchange
therefor, Managing Member has contributed to the Company as its Capital
Contribution the partnership and membership interests described on Schedule B.
Concurrently herewith, the Company is issuing to GGP American and Caledonian
88,100 Common Units, and, in exchange therefor, GGP American and Caledonian are
contributing to the Company as their Capital Contributions the property
described on Schedule C opposite their names. The Common Units shall have such
rights as are described herein. The Managing Member may, without the consent of
the other Members, issue additional Common Units to itself and others from time
to time for such consideration as it deems is appropriate. The Managing Member
shall be authorized to amend this Agreement to reflect the issuance of Common
Units in accordance with this Section 4.1 without the joinder of any other
Member.
4.2 PREFERRED UNITS. The Managing Member shall have the right, without
the consent of the other Members (except as otherwise provided herein), to
establish and issue from time to time series of preferred units of membership
interest in the Company ("Preferred Units") and to establish from time to time
the number of Preferred Units to be included in each such series, to fix the
designation, powers, preferences and rights of the Preferred Units of each such
series and the qualifications, limitations and restrictions thereof and to
determine the consideration to be paid from time to time for the Preferred Units
in each such series. Except as otherwise provided herein, Preferred Units that
are cancelled or redeemed or purchased by the Company may, at the election of
the Managing Member, either (a) be reissued by the Company or (b) be cancelled.
The Managing Member shall be authorized to amend this Agreement to effect the
provisions of this Section 4.2 without the joinder of any other Member.
4.3 ESTABLISHMENT OF SERIES A PREFERRED UNITS.
(a) ESTABLISHMENT OF SERIES A PREFERRED UNITS. A series of
preferred units of the Company designated as the "8.95% Series A
Cumulative Redeemable Preferred Units" (the "Series A Preferred
Units") is hereby established and shall have such preferences and
other rights as are described herein. The maximum number of Series A
Preferred Units which may be issued by the Company from time to time
shall be 700,000. Concurrently herewith, the Company is issuing to the
GS Exchange Fund 700,000 Series
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A Preferred Units in exchange for a Capital Contribution by the GS
Exchange Fund of $175,000,000. Series A Preferred Units shall not have
any relative, participating, optional or other special rights and
powers other than as set forth herein. Series A Preferred Units that
are redeemed or purchased by the Company shall be cancelled and may
not be reissued.
(b) RANK OF THE SERIES A PREFERRED UNITS. The Series A Preferred
Units shall, with respect to distribution rights and rights upon
liquidation, dissolution or winding up of the Company, rank as follows:
(i) senior to all classes or series of Common Units and all
other series of Preferred Units other than (A) a series of Preferred
Units referred to in Section 4.3(b)(iii) and (B) a series of
Preferred Stock the express terms of which provide that such series
ranks on parity with the Series A Preferred Units (Preferred Units
ranking junior to the Series A Preferred Units with respect to
distribution rights and rights upon liquidation, dissolution and
winding up, collectively, "Junior Units");
(ii) on parity with each series of Preferred Units which
provides by its express terms that it ranks on parity with the Series A
Preferred Units as to distribution rights and rights upon liquidation,
dissolution and winding-up of the Company ("Parity Units") (and if the
distribution rates, distribution payment dates or redemption or
liquidation prices per Unit are different from those of the Series A
Preferred Units, the units of such class or series and the Series A
Preferred Units shall be entitled to the receipt of distributions and
the amounts distributable upon liquidation, dissolution and winding-up
in proportion to their respective amounts of accrued and unpaid
distributions per unit or liquidation preferences, without preference
or priority one over the other); and
(iii) junior to any class or series of Preferred Units that is
hereafter established, that provides by its express terms that it ranks
senior to the Series A Preferred Units and that is approved in
accordance with the provisions of Section 4.3(c).
(c) VOTING. The Company shall not, without the affirmative vote or
consent of the holders of at least fifty-one percent (51%) of the
Series A Preferred Units outstanding at such time, (i) authorize or
create, or increase the authorized or issued amount of, any class or
series of Units ranking senior to the Series A Preferred Units with
respect to payments of distributions or rights upon liquidation,
dissolution or winding up of the Company or reclassify any Common Units
into Preferred Units ranking senior to or on parity with the Series A
Preferred Units with respect to the payment of distributions or
distribution of assets upon liquidation, dissolution or winding-up of
the Company, (ii) issue additional Series A Preferred Units or (iii)
amend, alter or repeal this Section 4.3 or any other provisions of this
Agreement, whether by merger, consolidation or otherwise (an "Event")
so as to negate the provisions of clause (i) or (ii) of this paragraph
or materially and adversely affect any right, preference, privilege or
voting power of the holders of the Series A Preferred Units.
Notwithstanding anything to the contrary contained herein, (A) with
respect to the occurrence of any of the Events set forth in clause
(iii) of this paragraph, so long as Series A Preferred Units remain
outstanding with the terms thereof materially unchanged, taking into
account that, upon the occurrence of
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an Event, the Company may not be the surviving entity, the occurrence
of any such Event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting power of holders
of the Series A Preferred Units and (B) the authorization or creation
of, or the increase in the authorized or issued amount of, any other
series of Preferred Units, in either case which rank junior to or on
parity with the Series A Preferred Units (and any amendments to this
Agreement to effect such increase, creation or issuance), shall not be
deemed to materially and adversely affect such rights, preferences,
privileges or voting powers or otherwise require the vote or consent of
the holders of the Series A Preferred Units.
For purposes of the provisions of this Section 4.3(c), each
Series A Preferred Unit shall have one (1) vote.
Notwithstanding anything to the contrary contained herein, the
foregoing voting provisions shall not apply if, prior to the time when
the act with respect to which such vote would otherwise be required
shall be effected, all outstanding Series A Preferred Units shall have
been exchanged or redeemed.
Except as provided herein, the holders of Series A Preferred
Units shall have no voting or consent rights or other rights to
participate in the management of the Company or to receive notices of
meetings.
(d) DISTRIBUTIONS.
(i) PAYMENT OF DISTRIBUTIONS. Each holder of Series A
Preferred Units will be entitled to receive, when, as and if declared
by the Managing Member, out of Net Operating Cash Flow and subject to
the prior right to payment of the holders of Preferred Units ranking
senior to or on parity with the Series A Preferred Units, cumulative
preferential cash distributions per Series A Preferred Unit at the rate
per annum of 8.95% of the $250 liquidation preference thereof (or
$5.59375 per quarter) (the "Series A Preferred Unit Distribution").
Series A Preferred Unit Distributions with respect to any Series A
Preferred Units shall be cumulative, shall accrue from the date of the
issuance of such Series A Preferred Units and will be payable (A)
quarterly when, as and if authorized and declared by the Managing
Member, in arrears, on or before the 15th day of January, April, July
and October of each year and in the event of an exchange or redemption
of Series A Preferred Units, on the exchange or redemption date, as
applicable (each a "Series A Preferred Unit Distribution Payment
Date"), commencing on the first of such payment dates to occur
following their original date of issuance. The amount of distribution
per Series A Preferred Unit accruing in each full quarterly
distribution period shall be computed by dividing the annual
distribution rate by four. The amount of distributions payable for the
initial distribution period or any other period shorter or longer than
a full quarterly distribution period on the Series A Preferred Units
will be computed on the basis of twelve 30-day months and a 360-day
year and the actual number of days elapsed in such a thirty (30) day
month. If any Series A Preferred Unit Distribution Payment Date is not
a Business Day, then payment of the Series A Preferred Unit
Distribution to be made on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of such delay),
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except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business
Day (without any deduction), in each case with the same force and
effect as if made on such date. Series A Preferred Unit Distributions
will be made to the holders of Series A Preferred Units of record on
the relevant record dates, which will be fifteen (15) days prior to the
relevant Series A Preferred Unit Distribution Payment Date.
(ii) DISTRIBUTIONS CUMULATIVE. Notwithstanding the
foregoing, Series A Preferred Unit Distributions will accrue whether or
not the terms and provisions of this Agreement or any other agreement
of the Company at any time prohibit the current payment of
distributions, whether or not the Company has revenues, whether or not
there are funds legally available for the payment of such distributions
and whether or not such distributions are authorized. Accrued but
unpaid Series A Preferred Unit Distributions will accumulate as of the
Series A Preferred Unit Distribution Payment Date on which they first
become payable. Any accrued but unpaid Series A Preferred Unit
Distributions that are not paid on or prior to the date that they first
become payable are hereinafter referred to as "Series A Accumulated
Preferred Unit Distributions". No interest or sum of money in lieu of
interest will be payable in respect of any Series A Accumulated
Preferred Unit Distributions. Series A Accumulated Preferred Unit
Distributions may be declared and paid at any time, without reference
to any regular Series A Preferred Unit Distribution Payment Date.
(iii) PRIORITY AS TO DISTRIBUTIONS.
(A) So long as any Series A Preferred Units are
outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or
with respect to any Parity Units, nor shall any cash or other
property be set aside for or applied to the purchase,
redemption or other acquisition for consideration of any
Series A Preferred Units or any Parity Units, unless, in each
case, all Series A Accumulated Preferred Unit Distributions
have been paid in full or when Series A Accumulated Preferred
Unit Distributions are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all
distributions declared upon Series A Preferred Units and all
distributions declared upon any other series or class or
classes of Parity Units shall be declared ratably in
proportion to the respective amounts of distributions
accumulated and unpaid on the Series A Preferred Units and
such Parity Units.
(B) So long as any Series A Preferred Units are
outstanding, no distribution of cash or other property (other
than distributions paid solely in Junior Units or options,
warrants or other rights to subscribe for or purchase Junior
Units) shall be authorized, declared, paid or set apart for
payment on or with respect to any class or series of Junior
Units nor shall any cash or other property be set aside for or
applied to the purchase, redemption or other acquisition for
consideration of any Junior Units (other than consideration
paid solely in Junior Units or options, warrants or other
rights to subscribe for or purchase Junior Units) unless, in
each case, all Series A Accumulated Preferred Unit
Distributions have been paid in full or set apart for payment.
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(C) So long as there are Series A Accumulated
Preferred Unit Distributions (or a sum sufficient for full
payment of Series A Accumulated Preferred Unit Distributions
is not so set apart), all future Series A Preferred Unit
Distributions shall be authorized and declared so that the
amount of Series A Preferred Unit Distributions per Series A
Preferred Unit shall in all cases bear to each other the same
ratio that Series A Accumulated Preferred Unit Distributions
per Series A Preferred Unit bear to each other.
(D) Notwithstanding anything to the contrary set
forth herein, distributions on Units held by the Managing
Member ranking junior to or on parity with the Series A
Preferred Units may be made, without preserving the priority
of distributions described in Section 4.4(d)(iii)(A) and (B),
but only to the extent such distributions are required to
preserve the REIT status of GGPI.
(iv) NO FURTHER RIGHTS. Holders of Series A Preferred
Units shall not be entitled to any distributions, whether payable in
cash, other property or otherwise, in excess of the Series A Preferred
Unit Distributions (and any Series A Accumulated Preferred Unit
Distributions) described herein.
(e) LIQUIDATION PREFERENCE. (i) In the event of any
liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, before any payment or distribution of the
assets of the Company shall be made to or set apart for the holders of
Junior Units, holders of the Series A Preferred Units shall be entitled
to receive an amount equal to the holder's Capital Account in respect
of those Series A Preferred Units; but the holders of Series A
Preferred Units shall not be entitled to any further payment. If, upon
any such liquidation, dissolution or winding up of the Company, the
assets of the Company, or proceeds thereof, distributable to the
holders of Series A Preferred Units, shall be insufficient to pay in
full the preferential amount aforesaid and liquidating payments on any
other Parity Units, then such assets, or the proceeds thereof, shall be
distributed among the holders of the Series A Preferred Units and the
holders of any such other Parity Units ratably in accordance with the
respective amounts that would be payable on such Series A Preferred
Units and any such other Parity Units if all amounts payable thereon
were paid in full. For the purposes of this Section 4.3(e), none of (i)
a consolidation or merger of the Company with or into one or more
entities, (ii) a merger of an entity with or into the Company, (iii) a
statutory share exchange by the Company or (iv) a sale, lease or
conveyance of all or substantially all of the Company's assets shall be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Company.
(ii) Subject to the rights of the holders of Parity
Units, after payment shall have been made in full to the holders of the
Series A Preferred Units as provided in this Section, any series or
class or classes of Junior Units shall, subject to any respective terms
and provisions applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holder of the
Series A Preferred Units shall not be entitled to share therein.
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(f) TRANSFER BY HOLDERS OF SERIES A PREFERRED UNITS.
Notwithstanding anything to the contrary contained herein, a holder of
Series A Preferred Units may sell, assign or otherwise transfer all or
part of its Series A Preferred Units without the consent of the
Managing Member; provided, however, that no such sale, conveyance or
other transfer may be made unless the requirements of Section 8.3
(other than Section 8.3(b)) and the second and fourth sentences of
Section 8.2 are satisfied with respect to such sale, conveyance or
other transfer.
(g) EXCHANGE RIGHTS.
(i) RIGHT TO EXCHANGE.
(A) Series A Preferred Units will be exchangeable
in whole but not in part with GGPI at any time on or after May
25, 2010, at the option of the holders of at least fifty-one
percent (51%) of all outstanding Series A Preferred Units for
authorized but previously unissued REIT Preferred Shares. Each
holder of Series A Preferred Units will be entitled to receive
for each Series A Preferred Unit held by it a number of REIT
Preferred Shares equal to the quotient of the Capital Account
per Series A Preferred Unit of such holder of Series A
Preferred Units (adjusted and booked up to reflect fair market
value through the exchange date) divided by $1,000 (the
"Series A Preferred Exchange Rate"). This exchange right is
only exercisable if, at the time of exercise, the fair market
value of the Company's assets exceeds the Company's
liabilities (and any preferred security claims senior to the
Series A Preferred Units) by an amount at least equal to twice
the sum of (1) the aggregate Capital Accounts of all holders
of Series A Preferred Units plus (2) the aggregate Capital
Accounts of all holders of Parity Units.
(B) The Series A Preferred Units will be
exchangeable with GGPI at any time on or after May 25, 2005,
in whole but not in part, at the option of the holders of at
least fifty-one percent (51%) of all outstanding Series A
Preferred Units, for authorized but previously unissued Common
Shares if at any time Series A Accumulated Preferred Unit
Distributions exist with respect to the Series A Preferred
Units in an amount equal to the amount that should have been
distributed in six (6) prior quarterly distribution periods,
whether or not consecutive, at the following exchange rate:
for each Series A Preferred Unit, a number of Common Shares
equal to the quotient of (x) the sum of $250 and the Series A
Accumulated Preferred Unit Distributions (but only up to an
amount equal to the amount distributable for six (6) quarterly
distribution periods) divided by (y) $37.25 (as adjusted to
reflect any splits, combinations or the like after the date
hereof) (the "Series A Common Exchange Rate").
(C) Series A Preferred Units will be exchangeable
at any time, in whole but not in part, with GGPI at the option
of the holders of at least fifty-one percent (51%) of all
outstanding Series A Preferred Units for authorized but
previously unissued REIT Preferred Shares at the Series A
Preferred Exchange Rate upon receipt by a holder or holders of
Series A Preferred Units of (A) notice from the Managing
Member that the Managing Member or an Affiliate of the
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Managing Member has taken the position that the Company is, or
upon the consummation of an identified event in the immediate
future will be, a "publicly traded partnership", taxable as a
corporation (a "PTP") within the meaning of Section 7704 of
the Code or (B) an opinion rendered by independent counsel
familiar with such matters addressed to a holder or holders of
Series A Preferred Units, that the Company is or likely is, or
upon the occurrence of an imminent identified event will be or
likely will be, a PTP. This exchange right is exercisable only
under the circumstances described in the last sentence of
Section 4.3(g)(i)(A).
(D) Series A Preferred Units will be exchangeable
with GGPI at any time in whole but not in part, at the option
of a holder for authorized but previously unissued Common
Shares at the Series A Common Exchange Rate if such holder
concludes based on results or projected results that there
exists (in the reasonable judgment of such holder as confirmed
by an opinion of nationally recognized independent counsel or
accounting firm) an imminent and substantial risk that such
holder's interest in the Company represents or will represent
more than nineteen and ninety-five one hundredths percent
(19.95%) of the total profits or capital interests in the
Company for a taxable year (the "19.95% Limit") (determined in
accordance with Treasury Regulations Section 1.731-2 (e)(4)).
(E) Notwithstanding anything to the contrary set
forth in Sections 4.3(g)(i)(A) through (D), if an Exchange
Notice (as defined herein) has been delivered to the Managing
Member and GGPI, then the Managing Member or GGPI may at its
option, within ten (10) Business Days after receipt of the
Exchange Notice, elect to purchase or cause the Company to
redeem all or a portion of the outstanding Series A Preferred
Units (for which Exchange Notices were delivered) for cash or
Common Shares, in each case at the Series A Exchange Price per
Series A Preferred Unit as of the date the Exchange Notice is
sent. The "Series A Exchange Price" of an outstanding Series A
Preferred Unit shall equal: (1) in the event that the holders
of the Series A Preferred Units are exchanging such Unit for
Common Shares, the product of the number of Common Shares
issued in respect of such Preferred Unit multiplied by the
Current Per Share Market Price, or (2) in the event that the
holders of the Series A Preferred Units are exchanging such
Unit for REIT Preferred Shares, the pro rata portion of the
Capital Account (as adjusted and booked up immediately prior
to such redemption) allocable to that Series A Preferred Unit.
If such election is made with respect to fewer than all of the
outstanding Series A Preferred Units, the number of Series A
Preferred Units held by each holder of Series A Preferred
Units to be redeemed or purchased shall equal such holder's
pro rata share (based on the percentage of the aggregate
number of outstanding Series A Preferred Units that the total
number of Series A Preferred Units held by such holder of
Series A Preferred Units represents) of the aggregate number
of Series A Preferred Units being redeemed. An election by the
Managing Member or GGPI under this Section shall be effected
by delivering notice thereof to the holders identified in the
Exchange Notice.
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(F) If an exchange of all Series A Preferred Units
pursuant to Sections 4.3(g)(i)(A) through (D) would violate
the provisions on ownership limitation of GGPI set forth in
its Charter and such ownership limitation is not waived by
GGPI, each holder of Series A Preferred Units shall be
entitled to exchange that number of Series A Preferred Units
which would comply with the provisions on the ownership
limitation of GGPI and any Series A Preferred Units not so
exchanged (the "Excess Units") shall be redeemed by the
Company for cash in an amount determined in the manner set
forth in subsection (E).
(ii) PROCEDURE FOR EXCHANGE AND/OR REDEMPTION OF SERIES
A PREFERRED UNITS.
(A) Any exchange shall be exercised pursuant to a
written notice of exchange (the "Exchange Notice") delivered
to the Managing Member and GGPI by holders of Series A
Preferred Units owning at least fifty-one percent (51%) of the
outstanding Series A Preferred Units (or by a holder of Series
A Preferred Units in the case of an exchange pursuant to
Section 4.3(g)(i)(D) hereof) by fax and certified mail postage
prepaid. The Exchange Notice shall specify the name or names
of the holders of Series A Preferred Units that are exercising
the exchange rights and the number of Series A Preferred Units
as to which such rights are being exercised. The closing of
the exchange or redemption pursuant to this Section 4.3(g)
shall occur within fifteen (15) Business Days following the
giving of the Exchange Notice. At the closing, the exchanging
holder(s) shall deliver such instruments of transfer and other
documents as GGPI or the Managing Member may reasonably
request and GGPI and/or the Company shall deliver to the
exchanging holder certificates representing the REIT Preferred
Shares or Common Shares and/or the cash redemption price.
Notwithstanding anything to the contrary contained herein, any
and all Series A Preferred Units to be exchanged for Common
Shares or REIT Preferred Shares pursuant to this Section shall
be so exchanged in a single transaction at one time. As a
condition to exchange, each holder of Series A Preferred Units
shall make such customary representations as may be reasonably
necessary for the Managing Member or GGPI to establish that
the issuance of Common Shares or REIT Preferred Shares
pursuant to the exchange shall not be required to be
registered under the Securities Act of 1933, as amended, or
any applicable state securities laws. Any Common Shares or
REIT Preferred Shares issued pursuant to this Section shall be
delivered as shares which are duly authorized, validly issued,
fully paid and nonassessable, free of any pledge, lien,
encumbrance or restriction other than those provided in the
Charter or the by-laws of GGPI, the Securities Act and
relevant state securities or blue sky laws and any Series A
Preferred Units as to which the exchange right has been
exercised shall be free of any pledge, lien, encumbrance or
restriction other than those provided in this Agreement, the
Securities Act and relevant state securities or blue sky laws
(and the parties shall make representations and warranties to
the other to such effect). The certificates representing the
Common Shares or REIT Preferred Shares issued upon exchange of
the Series A Preferred Units shall, in addition to any legend
required by the Charter, contain the following legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY
OPINION OF COUNSEL FOR THE HOLDER OF THE SHARES
REPRESENTED HEREBY, OR OTHER EVIDENCE SATISFACTORY TO
THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE
RULES AND REGULATIONS THEREUNDER.
Notwithstanding anything to the contrary contained
herein and at the request of a majority of the holders of
Series A Preferred Shares that have exercised the exchange
right pursuant to this Section 4.3(g), GGPI shall cause
depositary shares to be issued to such holders upon the
closing of the exchange in lieu of REIT Preferred Shares, each
depositary share (1) to have a face amount of $25 (or such
other amount as may be specified by holders of a majority of
the Series A Preferred Units prior to any such exchange) and
(2) to represent a fraction of a REIT Preferred Share the
denominator of which is $1,000 and the numerator of which is
the face amount of such depositary share. At the request of
holders of a majority of the Series A Preferred Units, the
Company shall take such actions as are necessary to provide
for such depository shares to be issued immediately upon
exchange of Series A Preferred Units for REIT Preferred
Shares.
(B) In the event of an exchange of Series A
Preferred Units, an amount equal to the Series A Accumulated
Preferred Unit Distributions to the date of exchange on any
Series A Preferred Units tendered for exchange shall continue
to accrue on such Series A Preferred Units, which remain
outstanding following such exchange, with the Managing Member
as the holder of such Series A Preferred Units (GGPI having
contributed the Series A Preferred Units to the Managing
Member). Fractional REIT Preferred Shares or Common Shares are
not to be issued upon exchange but, in lieu thereof, the
Managing Member will pay a cash adjustment based upon either
(i) the fair market value of the REIT Preferred Shares on the
day prior to the exchange date as determined in good faith by
the Board of Directors of the Managing Member or (ii) the
Current Per Share Market Price of the Common Shares as of the
date immediately prior to the exchange date, as the case may
be.
(iii) ADJUSTMENT OF EXCHANGE PRICE. In case GGPI shall
be a party to any transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all or
substantially all of GGPI's Common Shares or sale of all
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or substantially all of GGPI's assets), in each case as a result of
which the REIT Preferred Shares or Common Shares will be converted into
the right to receive shares of capital stock, other securities or other
property (including cash or any combination thereof), each Series A
Preferred Unit will thereafter be exchangeable into the kind and amount
of shares of capital stock and other securities and property receivable
(including cash or any combination thereof) upon the consummation of
such transaction by a holder of that number of REIT Preferred Shares or
Common Shares or fraction thereof into which one (1) Series A Preferred
Unit was exchangeable immediately prior to such transaction. GGPI may
not become a party to any such transaction unless the terms thereof are
consistent with the foregoing.
(iv) NO OTHER EXCHANGE RIGHTS. The Series A Preferred
Units are not convertible into or redeemable or exchangeable for any
other property or securities of GGPI, the Managing Member, the Company
or any other Person at the option of any holder of Series A Preferred
Units except as expressly provided in this Section 4.3(g).
(h) REDEMPTION.
(i) The Series A Preferred Units shall not be
redeemable prior to May 25, 2005. On and after May 25 2005, the
Managing Member may, at its option, cause the Company to redeem the
Series A Preferred Units in whole or in part, as set forth herein,
subject to the provisions described below, at a redemption price,
payable in cash, in an amount equal to $250 per Series A Preferred Unit
being redeemed (the "Series A Redemption Price"). Upon any such
redemption, the Company shall also pay any accumulated and unpaid
distributions owing in respect of the Series A Preferred Units being
redeemed.
(ii) Such Series A Preferred Units as are not held by
the Managing Member may be redeemed by the Company on or after May 25,
2005, in whole or in part, at any time or from time to time, upon not
less than 30 nor more than 60 days' written notice. If fewer than all
of the outstanding Series A Preferred Units that are not held by the
Managing Member are to be redeemed, the Series A Preferred Units to be
redeemed from each holder (other than the Managing Member) shall be
selected pro rata (as nearly as practicable without creating fractional
units). Any notice of redemption delivered pursuant to this Section
4.3(h) will be mailed by the Company, by certified mail, postage
prepaid, not less than 30 nor more than 60 days prior to the date upon
which such redemption is to occur (the "Series A Third Party Redemption
Date"), addressed to each holder of record of the Series A Preferred
Units at their respective addresses as they appear on the records of
the Company. No failure to give or defect in such notice shall affect
the validity of the proceedings for the redemption of any Series A
Preferred Units. In addition to any information required by law, each
such notice shall state: (a) the Series A Third Party Redemption Date,
(b) the amount payable per Series A Preferred Unit upon redemption,
including the Series A Redemption Price and any amount payable pursuant
to Section 4.3(h)(iv) hereof, (c) the aggregate number of Series A
Preferred Units to be redeemed and, if fewer than all of the
outstanding Series A Preferred Units are to be redeemed, the number of
Series A Preferred Units to be redeemed held by such holder, which
number shall equal such holder's pro rata share (based on the
percentage of
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the aggregate number of outstanding Series A Preferred Units not held
by the Managing Member that the total number of Series A Preferred
Units held by such holder represents and determined as nearly as
practicable without creating fractional interests) of the aggregate
number of Series A Preferred Units to be redeemed, (d) the place or
places where the instrument of transfer is surrendered for payment of
the amount payable upon redemption and (e) that payment of such amount
will be made upon presentation and surrender of the instrument of
transfer in the form provided by the Managing Member. If the Company
gives a notice of redemption in respect of Series A Preferred Units
pursuant to this Section 4.3(h), then, by 12:00 noon, New York City
time, on the Series A Third Party Redemption Date, the Company will
deposit irrevocably in trust for the benefit of the holders of Series A
Preferred Units being redeemed funds sufficient to pay the applicable
amount payable with respect to such Series A Preferred Units and will
give irrevocable instructions and authority to pay such amount to the
holders of the Series A Preferred Units upon surrender of the Series A
Preferred Units and such instruments of transfer by such holders at the
place designated in the notice of redemption. Any Series A Preferred
Units surrendered shall be free and clear of all Liens and the holders
thereof shall make representations and warranties to such effect.
(iii) Such Series A Preferred Units as may be held by
the Managing Member may be redeemed, in whole or in part, at the option
of the Managing Member, at any time, upon payment by the Company to the
Managing Member of the Series A Redemption Price and any amount payable
pursuant to Section 4.3(h)(iv) hereof with respect to such Series A
Preferred Units; provided that GGPI shall redeem an equivalent number
of REIT Preferred Shares. Such redemption of Series A Preferred Units
shall occur substantially concurrently with the redemption by GGPI of
such REIT Preferred Shares (such date is herein referred to
collectively with the Third Party Redemption Date as the "Series A
Redemption Date").
(iv) Upon any redemption of Series A Preferred Units,
the Company shall pay any accumulated and unpaid distributions for any
distribution period, or any other period shorter than a full
distribution period, ending on or prior to the Redemption Date. On and
after the Redemption Date, distributions will cease to accumulate on
the Series A Preferred Units called for redemption, unless the Company
defaults in payment therefor. If any date fixed for redemption of
Series A Preferred Units is not a Business Day, then payment of the
Series A Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for redemption. If
payment of the Series A Redemption Price is improperly withheld or
refused and not paid by the Company, distributions on such Series A
Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for
purposes of calculating the applicable Series A Redemption Price.
Except as provided above, the Company shall make no payment or
allowance for unpaid distributions, whether or not in arrears, on
Series A Preferred Units called for redemption under this Section
4.3(h).
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<PAGE> 27
(v) If full cumulative distributions on the Series A
Preferred Units and any other Parity Units have not been paid or
declared and set apart for payment, the Series A Preferred Units may
not be redeemed in part and the Company may not purchase, redeem or
otherwise acquire Series A Preferred Units or any Parity Units other
than in exchange for Junior Units.
(vi) As promptly as practicable after the surrender of
any such Series A Preferred Units so redeemed, such Series A Preferred
Units shall be exchanged for the amount of cash (without interest
thereon) payable therefor pursuant to Section 4.3(h). If fewer than all
the Series A Preferred Units represented by any physical certificate
are redeemed, then the Company shall issue new certificates
representing the unredeemed Series A Preferred Units without cost to
the holder thereof.
(i) OTHER MATTERS. As long as any of the Series A Preferred
Units are outstanding, the Company shall comply with the following:
(i) DIVIDENDS. The Company shall not declare any
dividends or distributions on any class of equity (other than the
Series A Preferred Units or Preferred Units ranking on parity with the
Series A Preferred Units) or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase,
redemption, retirement or other acquisition of any class of entity
other than the Series A Preferred Units, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations
of the Company and any of its Subsidiaries if, immediately before or
after giving effect to such dividend or distribution, there shall
exist, or be reasonably likely to exist any Series A Accumulated
Preferred Unit Distributions for any quarterly period.
(ii) AFFILIATE TRANSACTIONS. Except as expressly
provided elsewhere in this Agreement, the Company shall not, nor will
it permit any of its Subsidiaries to, enter into any transaction
(including, without limitation, the purchase or sale of any property or
service) with, or make any payment or transfer to, any Affiliate of the
Company except in the ordinary course of business and pursuant to the
reasonable requirements of the Company's or such Subsidiary's business
and upon fair and reasonable terms no less favorable to the Company or
such Subsidiary than the Company or such Subsidiary would obtain in a
comparable arms-length transaction. The parties acknowledge that the
Company has assumed $170,625,000 (the "Assumed Debt") of the
outstanding principal amount under a line of credit of the Operating
Partnership (but the rights of the Operating Partnership to borrow or
reborrow thereunder have not been assigned to the Company). The Company
shall repay the Assumed Debt, together with accrued and unpaid interest
thereon, as soon as reasonably practicable following the date hereof.
(iii) CONSOLIDATED TANGIBLE NET WORTH. The Company shall
provide the holders of Series A Preferred Units prompt written notice
in the event Consolidated Tangible Net Worth is or is reasonably likely
to be less than $600 million as of the last day of any quarter.
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(iv) ASSET TRANSFER. Without the prior written consent
of the holders of at least fifty-one percent (51%) of Series A
Preferred Units, the Company shall not, and shall not permit any of its
Subsidiaries to sell, convey, transfer or otherwise dispose of any
Property (i) to any Affiliate of the Company (other than Subsidiaries
of the Company) or (ii) to any person that is not an Affiliate of the
Company, unless simultaneously therewith, the Company or such
Subsidiary acquires an Approved Replacement Property or the following
requirements are met:
(A) the net income of the Company for the most
recently completed twelve months, calculated in accordance
with GAAP on a pro forma basis as though such Property had
been sold, transferred, conveyed or otherwise disposed of
prior to the beginning of such period, would be at least $90
million; and
(B) after giving effect to any such sale,
conveyance, transfer or other disposition, the Consolidated
Tangible Net Worth would not be less than $1 billion; and
(C) after giving effect to any such sale,
conveyance, transfer or other disposition, the interest of no
holder of Series A Preferred Units would represent more than
17.5% of the total profits or capital interests in the Company
for a taxable year (determined in accordance with Treasury
Regulation Section 1.731-2(e)(4)).
The Company shall give the holders of the Series A Preferred Units
notice of any such sale, transfer or other disposition.
Notwithstanding anything to the contrary contained herein, the
provisions of this Section 4.3(i)(iv) shall not apply to (i) the
conveyance of any Property or any part thereof to any Person in
connection with a foreclosure or imminent domain proceeding or deed in
lieu thereof, (ii) the sale, exchange or other disposition of all or
substantially all of the properties of the Company and its
Subsidiaries, (iii) the grant of an easement or right-of-way, (iv) the
lease of the Properties in the ordinary course of business, (v) the
sale to any department store or retailer of the portion of the property
occupied or proposed to be occupied by it (including parking area and
other surrounding area), (vi) the mortgage of any Property and (vii)
the other sale, conveyance, transfer or other disposal of a portion of
a Property or interests therein in the ordinary course of business, and
no notice need be given to the holders of the Series A Preferred Units
in connection with a transaction described in this sentence.
(v) NET OPERATING INCOME. The Company shall provide
the holders of Series A Preferred Units prompt written notice in the
event aggregate Net Operating Income for any two consecutive calendar
quarters from all properties owned in fee simple or ground leased by
the Company, a Subsidiary, or an Investment Affiliate is, or is
reasonably likely to be, less than 2.1 times the portion of the
Consolidated Interest Expense for such two fiscal quarters attributable
to debt, as of the last day of any fiscal quarter.
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(vi) FIXED CHARGE COVERAGE. The Company shall provide
the holders of Series A Preferred Units prompt written notice in the
event the ratio of (i) Net Operating Income determined on a
consolidated basis for any two consecutive calendar quarters, to (ii)
Fixed Charges determined on a consolidated basis for such two
calendar-quarter period, is or is reasonably likely to be, less than
1.8 to 1 at the end of such two calendar-quarter period.
(vii) [INTENTIONALLY OMITTED]
(viii) EFFECT OF BREACH. In the event of any material
breach of any of the covenants set forth in this Section 4.3(i), the
holders of Series A Preferred Units shall have all rights at law, and
as long as such breach remains uncured (following the earlier of
receipt of notice of material breach from the holders of Series A
Preferred Units or knowledge of material breach by the Company), the
Company shall not make any distributions or dividends to or in respect
of any Units other than the Series A Preferred Units or Parity Units or
purchase or redeem any Units other than the Series A Preferred Units or
Parity Units. The occurrence of any matter for which notice is required
to be given in accordance with Section 4.3(i)(iii), (v) or (vi) shall
not in and of itself constitute a breach hereof; however, the failure
to provide written notice in accordance with each such section is a
breach of this Agreement.
4.4 NO THIRD PARTY BENEFICIARY. No creditor or other third party
having dealings with the Company shall have the right to enforce the right or
obligation of any Member to make Capital Contributions or loans or to pursue any
other right or remedy hereunder or at law or in equity, it being understood and
agreed that the provisions of this Agreement shall be solely for the benefit of,
and may be enforced solely by, the parties hereto and their respective
successors and assigns. None of the rights or obligations of the Members herein
set forth to make Capital Contributions or loans to the Company shall be deemed
an asset of the Company for any purpose by any creditor or other third party,
nor may such rights or obligations be sold, transferred or assigned by the
Company or pledged or encumbered by the Company to secure any debt or other
obligation of the Company or of any of the Members.
4.5 NO INTEREST; NO RETURN; NO WITHDRAWAL. No Member shall be
entitled to interest on its Capital Contribution or on its Capital Account.
Except as provided herein or by law, no Member shall have any right to demand or
receive the return of its Capital Contribution from the Company. No Member may
withdraw from the Company without the prior written consent of the Managing
Member, other than as expressly provided in this Agreement.
ARTICLE V
ALLOCATIONS AND OTHER TAX AND ACCOUNTING MATTERS
5.1 ALLOCATIONS. The Net Income, Net Loss and/or other Company
items shall be allocated pursuant to the provisions of Exhibit A hereto.
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5.2 DISTRIBUTIONS.
(a) Subject to the rights of holders of Preferred Units, the
Managing Member shall, from time to time as determined by the Managing
Member (but in any event not less frequently than quarterly), cause the
Company to distribute all or a portion of Net Operating Cash Flow to
the holders of the Common Units who are such on the relevant Common
Unit Record Date in such amounts as the Managing Member shall
determine; provided, however, that all such distributions shall be made
pro rata in accordance with the number of Common Units then owned by
the Members; and provided further, that notwithstanding the foregoing,
the Managing Member shall use its best efforts to cause the Company to
distribute sufficient amounts to enable GGPI to pay shareholder
dividends that will (a) satisfy the requirements for qualifying as a
REIT under the Code and Regulations ("REIT Requirements"), and (b)
avoid any federal income or excise tax liability of GGPI.
(b) The Company shall pay distributions in respect of each
series of Preferred Units as provided in Section 4.3 hereof and/or any
amendment hereto relating to such series of Preferred Units.
5.3 BOOKS OF ACCOUNT. At all times during the continuance of the
Company, the Managing Member shall maintain or cause to be maintained full,
true, complete and correct books of account in accordance with generally
accepted accounting principles wherein shall be entered particulars of all
monies, goods or effects belonging to or owing to or by the Company, or paid,
received, sold or purchased in the course of the Company's business, and all of
such other transactions, matters and things relating to the business of the
Company as are usually entered in books of account kept by persons engaged in a
business of a like kind and character. In addition, the Company shall keep all
records as required to be kept pursuant to the Act. The books and records of
account shall be kept at the principal office of the Company, and each Member
shall at all reasonable times have access to such books and records and the
right to inspect the same.
5.4 REPORTS. The Managing Member shall cause to be submitted to
the other Members, promptly following the end of the last calendar year, copies
of Financial Statements prepared on a consolidated basis for the Company and the
Property Partnerships. The Company shall also cause to be prepared such reports
and/or information as are necessary for GGPI to determine its qualification as a
REIT and its compliance with the REIT Requirements.
5.5 TAX ELECTIONS AND RETURNS.
(a) All elections required or permitted to be made by the
Company under any applicable tax law shall be made by the Managing
Member in its sole discretion, including without limitation an election
on behalf of the Company pursuant to Section 754 of the Code to adjust
the basis of the Company property in the case of transfers of Units,
and the Managing Member shall not be required to make any such
election.
(b) The Managing Member shall cause the Accountants to
prepare and file all state and federal tax returns on a timely basis.
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5.6 TAX MATTERS MEMBER. The Managing Member is hereby designated
as the Tax Matters Member of the Company, which has the meaning of "Tax Matters
Partner" as specified in Section 6231(a)(7) of the Code; provided, however, in
exercising its authority as Tax Matters Member it shall be limited by the
provisions of this Agreement affecting tax aspects of the Company;
5.7 WITHHOLDING. Each Member hereby authorizes the Company to
withhold or pay on behalf of or with respect to such Member any amount of
federal, state, local or foreign taxes that the Managing Member determines the
Company is required to withhold or pay with respect to any amount distributable
or allocable to such Member pursuant to this Agreement, including without
limitation any taxes required to be withheld or paid by the Company pursuant to
Sections 1441, 1442, 1445 or 1446 of the Code. Any amount paid on behalf of or
with respect to a Member shall constitute a loan by the Company to such Member,
which loan shall be due within fifteen (15) days after repayment is demanded of
such Member and shall be repaid through withholding of subsequent distributions
to such Member. Any amounts payable by a Member hereunder shall bear interest at
the lesser of (a) the Prime Rate and (b) the maximum lawful rate of interest on
such obligation, such interest to accrue from the date such amount is due (i.e.,
fifteen (15) days after demand) until such amount is paid in full. To the extent
the payment or accrual of withholding tax results in a federal, state or local
tax credit to the Company, such credit shall be allocated to the Member to whose
distribution the tax is attributable.
ARTICLE VI
RIGHTS, DUTIES AND RESTRICTIONS OF THE MANAGING MEMBER
6.1 EXPENDITURES BY COMPANY. The Managing Member is hereby
authorized to pay compensation for accounting, administrative, legal, technical,
management and other services rendered to the Company. All of the aforesaid
expenditures shall be made on behalf of the Company, and the Managing Member
shall be entitled to reimbursement by the Company for any expenditures incurred
by it on behalf of the Company which shall be made other than out of the funds
of the Company. The Company also shall assume, and pay when due, all
Administrative Expenses.
6.2 POWERS AND DUTIES OF MANAGING MEMBER. The Managing Member
shall be responsible for the management of the Company's business and affairs.
Except as otherwise herein expressly provided, the Managing Member shall have,
and is hereby granted, full, complete and exclusive power, authority and
discretion under all circumstances to manage the business of the Company and to
take all actions for and on behalf of the Company and in its name as the
Managing Member shall, in its sole and absolute discretion, deem necessary or
appropriate to carry out the purposes for which the Company was organized.
Except as otherwise expressly provided herein and without limiting the
foregoing, the Managing Member shall have the right, power and authority:
(a) To manage, control, invest, reinvest, acquire by
purchase, lease or otherwise, sell, contract to purchase or sell,
grant, obtain, or exercise options to purchase, options to sell or
conversion rights, assign, transfer, convey, deliver, endorse,
exchange, pledge, mortgage, abandon, improve, repair, maintain, insure,
lease for any term and
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otherwise deal with any and all property of whatsoever kind and nature,
and wheresoever situated, in furtherance of the purposes of the
Company;
(b) To acquire, directly or indirectly, interests in real
estate of any kind and of any type, and any and all kinds of interests
therein, and to determine the manner in which title thereto is to be
held; to manage, insure against loss, protect and subdivide any of the
real estate, interests therein or parts thereof; to improve, develop or
redevelop any such real estate; to participate in the ownership and
development of any property; to dedicate for public use, to vacate any
subdivisions or parts thereof, to resubdivide, to contract to sell, to
grant options to purchase or lease, to sell on any terms; to convey, to
mortgage, pledge or otherwise encumber said property, or any part
thereof; to lease said property or any part thereof from time to time,
upon any terms and for any period of time, and to renew or extend
leases, to amend, change or modify the terms and provisions of any
leases and to grant options to lease and options to renew leases and
options to purchase; to partition or to exchange said real property, or
any part thereof, for other real or personal property; to grant
easements or charges of any kind; to release, convey or assign any
right, title or interest in or about or easement appurtenant to said
property or any part thereof; to construct and reconstruct, remodel,
alter, repair, add to or take from buildings on said premises; to
insure any Person having an interest in or responsibility for the care,
management or repair of such property; to direct the trustee of any
land trust to mortgage, lease, convey or contract to convey the real
estate held in such land trust or to execute and deliver deeds,
mortgages, notes, and any and all documents pertaining to the property
subject to such land trust or in any matter regarding such trust; to
execute assignments of all or any part of the beneficial interest in
such land trust;
(c) To employ, engage or contract with or dismiss from
employment or engagement Persons to the extent deemed necessary by the
Managing Member for the operation and management of the Company
business, including but not limited to, the engagement of the Property
Manager pursuant to the Management Agreements and the employment or
engagement of other contractors, subcontractors, engineers, architects,
surveyors, mechanics, consultants, accountants, attorneys, insurance
brokers, real estate brokers and others;
(d) To enter into contracts on behalf of the Company;
(e) To borrow money, procure loans and advances from any
Person for Company purposes, and to apply for and secure, from any
Person, credit or accommodations; to contract liabilities and
obligations, direct or contingent and of every kind and nature with or
without security; and to repay, discharge, settle, adjust, compromise,
or liquidate any such loan, advance, credit, obligation or liability;
(f) To pledge, hypothecate, mortgage, assign, deposit,
deliver, enter into sale and leaseback arrangements or otherwise give
as security or as additional or substitute security, or for sale or
other disposition any and all Company property, tangible or intangible,
including, but not limited to, real estate and beneficial interests in
land trusts, and to make substitutions thereof, and to receive any
proceeds thereof upon the release or surrender thereof; to sign,
execute and deliver any and all assignments, deeds and other
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contracts and instruments in writing; to authorize, give, make,
procure, accept and receive moneys, payments, property, notices,
demands, vouchers, receipts, releases, compromises and adjustments; to
waive notices, demands, protests and authorize and execute waivers of
every kind and nature; to enter into, make, execute, deliver and
receive written agreements, undertakings and instruments of every kind
and nature; to give oral instructions and make oral agreements; and
generally to do any and all other acts and things incidental to any of
the foregoing or with reference to any dealings or transactions which
any attorney may deem necessary, proper or advisable;
(g) To acquire and enter into any contract of insurance
which the Managing Member deems necessary or appropriate for the
protection of the Company, for the conservation of the Company's assets
or for any purpose convenient or beneficial to the Company;
(h) To conduct any and all banking transactions on behalf of
the Company; to adjust and settle checking, savings, and other accounts
with such institutions as the Managing Member shall deem appropriate;
to draw, sign, execute, accept, endorse, guarantee, deliver, receive
and pay any checks, drafts, bills of exchange, acceptances, notes,
obligations, undertakings and other instruments for or relating to the
payment of money in, into, or from any account in the Company's name;
to execute, procure, consent to and authorize extensions and renewals
of the same; to make deposits and withdraw the same and to negotiate or
discount commercial paper, acceptances, negotiable instruments, bills
of exchange and dollar drafts;
(i) To demand, sue for, receive, and otherwise take steps to
collect or recover all debts, rents, proceeds, interests, dividends,
goods, chattels, income from property, damages and all other property,
to which the Company may be entitled or which are or may become due the
Company from any Person; to commence, prosecute or enforce, or to
defend, answer or oppose, contest and abandon all legal proceedings in
which the Company is or may hereafter be interested; and to settle,
compromise or submit to arbitration any accounts, debts, claims,
disputes and matters which may arise between the Company and any other
Person and to grant an extension of time for the payment or
satisfaction thereof on any terms, with or without security;
(j) To make arrangements for financing, including the taking
of all action deemed necessary or appropriate by the Managing Member to
cause any approved loans to be closed;
(k) To take all reasonable measures necessary to insure
compliance by the Company with applicable arrangements, and other
contractual obligations and arrangements entered into by the Company
from time to time in accordance with the provisions of this Agreement,
including periodic reports as required to lenders and using all due
diligence to insure that the Company is in compliance with its
contractual obligations;
(l) To maintain the Company's books and records;
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(m) To prepare and deliver, or cause to be prepared and
delivered by the Company's Accountants, all financial and other reports
with respect to the operations of the Company, and preparation and
filing of all Federal and state tax returns and reports; and
(n) Any and all other actions that the Managing Member, in
its sole and absolute discretion, may deem necessary or appropriate in
furtherance of the business of the Company.
The Managing Member shall not have any obligations hereunder except to
the extent that Company funds are reasonably available to it for the performance
of such duties, and nothing herein contained shall be deemed to authorize or
require the Managing Member, in its capacity as such, to expend its individual
funds for payment to third parties or to undertake any individual liability or
obligation on behalf of the Company. Subject to the terms of Section 4.3 and the
terms of any other Preferred Units, the merger or consolidation of the Company
with or into another Entity shall be authorized by the Consent of the Holders of
Common Units.
6.3 PROSCRIPTIONS. The Managing Member shall not have the
authority to:
(a) Do any act in contravention of this Agreement or which
would make it impossible to carry on the ordinary business of the
Company (other than a sale of all or substantially all of the Company
assets or the dissolution of the Company, each of which is within the
power and authority of the Managing Member and do not require the
consent of the Members;
(b) Possess any Company property or assign rights in
specific Company property for other than Company purposes; or
(c) Do any act in contravention of applicable law.
Nothing herein contained shall impose any obligation on any Person or firm doing
business with the Company to inquire as to whether or not the Managing Member
has properly exercised its authority in executing any contract, lease, mortgage,
deed or other instrument or document on behalf of the Company, and any such
third Person shall be fully protected in relying upon such authority.
6.4 TITLE HOLDER. To the extent allowable under applicable law,
title to all or any part of the properties of the Company may be held in the
name of the Company or any other individual, corporation, partnership, trust or
otherwise, the beneficial interest in which shall at all times be vested in the
Company. Any such title holder shall perform any and all of its respective
functions to the extent and upon such terms and conditions as may be determined
from time to time by the Managing Member.
6.5 COMPENSATION OF THE MANAGING MEMBER. The Managing Member shall
not be entitled to any compensation for services rendered to the Company solely
in its capacity as Managing Member except with respect to reimbursement for
those costs and expenses constituting Administrative Expenses.
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6.6 WAIVER AND INDEMNIFICATION.
(a) Neither the Managing Member nor any Person acting on its
behalf, pursuant hereto, shall be liable, responsible or accountable in
damages or otherwise to the Company or to any Member for any acts or
omissions performed or omitted to be performed by them within the scope
of the authority conferred upon the Managing Member by this Agreement
and the Act; provided that (i) the Managing Member's or such other
Person's conduct or omission to act was taken in good faith and in the
belief that such conduct or omission was in the best interests of the
Company and (ii) the Managing Member or such other Person shall not be
guilty of fraud, willful misconduct or gross negligence. The Company
shall, and hereby does, indemnify and hold harmless the Managing Member
and its Affiliates and any individual acting on their behalf from any
loss, damage, claim or liability, including, but not limited to,
reasonable attorneys' fees and expenses, incurred by them by reason of
any act performed by them in accordance with the standards set forth
above or in enforcing the provisions of this indemnity; provided,
however, no Member shall have any personal liability with respect to
the foregoing indemnification, any such indemnification to be satisfied
solely out of the assets of the Company.
(b) Any Person entitled to indemnification under this
Agreement shall be entitled to receive, upon application therefor,
advances to cover the costs of defending any proceeding against such
Person; provided, however, that such advances shall be repaid to the
Company, without interest, if such Person is found by a court of
competent jurisdiction upon entry of a final judgment not to be
entitled to such indemnification. All rights of the indemnitee
hereunder shall survive the dissolution of the Company. The
indemnification rights contained in this Agreement shall be cumulative
of, and in addition to, any and all rights, remedies and recourse to
which the person seeking indemnification shall be entitled, whether at
law or at equity. Indemnification pursuant to this Agreement shall be
made solely and entirely from the assets of the Company and no Member
shall be liable therefor.
(c) The provisions of this Section 6.6 also shall apply to
the Liquidating Trustee and the Tax Matters Member.
6.7 OPERATION IN ACCORDANCE WITH REIT REQUIREMENTS. The Members
acknowledge and agree that the Company shall be operated in a manner that will
enable GGPI to (a) satisfy the REIT Requirements and (b) avoid the imposition of
any federal income or excise tax liability. The Company shall avoid taking any
action, or permitting any Property Partnership to take any action, which would
result in GGPI ceasing to satisfy the REIT Requirements or would result in the
imposition of any federal income or excise tax liability on GGPI.
6.8 DUTIES AND CONFLICTS. The Managing Member only shall be
required to devote such time to the management of the business of the Company as
it deems necessary to promote the interests of the Company. Each Member
recognizes that the other Members (including the Managing Member) and their
Affiliates have or may hereafter have other business interests, activities and
investments, some of which may be in conflict or competition with the business
or properties of the Company, and that such Persons are entitled to carry on
such other business
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interests, activities and investments. The Members (including the Managing
Member) and their Affiliates may engage in or possess an interest in any other
business or venture of any kind, independently or with others, on their own
behalf or on behalf of other entities with which they are affiliated or
associated, and such persons may engage in any activities, whether or not
competitive with the Company, without any obligation to offer any interest in
such activities to the Company or to any Member. Neither the Company nor any
Member shall have any right, by virtue of this Agreement, in or to such
activities, or the income or profits derived therefrom, and the pursuit of such
activities, even if competitive with the business of the Company, shall not be
deemed wrongful or improper. Without limiting the foregoing, each Member
recognizes that (a) the Managing Member and/or its Affiliates (other than the
Company and its Subsidiaries) own, independently and/or with others, direct
and/or indirect interests in Shopping Center Projects in which the Company and
its Subsidiaries have no interest and which may be in conflict or competition
with the business or properties of the Company and its Subsidiaries, (b) the
Managing Member intends to continue to conduct and expand such business and
activities and (c) the Managing Member and its Affiliates (other than the
Company and its Subsidiaries) are entitled to carry on such other business and
activities and own such properties without any obligation to offer any interest
in such business, activities or properties to the Company or to any Member.
ARTICLE VII
DISSOLUTION, LIQUIDATION AND WINDING-UP
7.1 ACCOUNTING. In the event of the dissolution, liquidation and
winding-up of the Company, a proper accounting (which shall be certified) shall
be made of the Capital Account of each Member and of the Net Profits or Net
Losses of the Company from the date of the last previous accounting to the date
of dissolution. Financial statements presenting such accounting shall include a
report of a certified public accountant selected by the Liquidating Trustee.
7.2 DISTRIBUTION ON DISSOLUTION. In the event of the dissolution
and liquidation of the Company for any reason, the assets of the Company shall
be liquidated for distribution in the following rank and order:
(a) Payment of creditors of the Company (other than Members)
in the order of priority as provided by law;
(b) Establishment of reserves as provided by the Managing
Member to provide for contingent liabilities, if any;
(c) Payment of debts of the Company to Members, if any, in
the order of priority provided by law; and
(d) Payment to holders of Units in accordance with their
Capital Accounts.
Whenever the Liquidating Trustee reasonably determines that any
reserves established pursuant to paragraph (b) above are in excess of the
reasonable requirements of the Company, the amount determined to be excess shall
be distributed to the Members in accordance with the above provisions.
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7.3 TIMING REQUIREMENTS. In the event that the Company is
"liquidated" within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations, any and all distributions to the Members pursuant to Section 7.2(d)
hereof shall be made no later than the later to occur of (i) the last day of the
taxable year of the Company in which such liquidation occurs or (ii) ninety (90)
days after the date of such liquidation.
7.4 SALE OF COMPANY ASSETS. In the event of the liquidation of the
Company in accordance with the terms of this Agreement, the Liquidating Trustee
may sell Company or Property Partnership property if the Liquidating Trustee has
in good faith solicited bids from unrelated third parties and obtained
independent appraisals before making any such sale; provided, however, all
sales, leases, encumbrances or transfers of Company assets shall be made by the
Liquidating Trustee solely on an "arm's-length" basis, at the best price and on
the best terms and conditions as the Liquidating Trustee in good faith believes
are reasonably available at the time and under the circumstances and on a
non-recourse basis to the Members. The liquidation of the Company shall not be
deemed finally terminated until the Company shall have received cash payments in
full with respect to obligations such as notes, installment sale contracts or
other similar receivables received by the Company in connection with the sale of
Company assets and all obligations of the Company have been satisfied. The
Liquidating Trustee shall continue to act to enforce all of the rights of the
Company pursuant to any such obligations until paid in full.
7.5 DISTRIBUTIONS IN KIND. In the event that it becomes necessary
to make a distribution of Company property in kind, the Managing Member may
transfer and convey such property to the distributees as tenants in common,
subject to any liabilities attached thereto, so as to vest in them undivided
interests in the whole of such property in proportion to their respective rights
to share in the proceeds of the sale of such property (other than as a creditor)
in accordance with the provisions of Section 7.2 hereof.
7.6 DOCUMENTATION OF LIQUIDATION. Upon the completion of the
dissolution and liquidation of the Company, the Company shall terminate and the
Liquidating Trustee shall have the authority to execute and record any and all
documents or instruments required to effect the dissolution, liquidation and
termination of the Company.
ARTICLE VIII
TRANSFER OF UNITS
8.1 MANAGING MEMBER TRANSFER. The Managing Member shall not
withdraw from the Company and shall not sell, assign, pledge, encumber or
otherwise dispose of all or any portion of its Units without (i) the Consent of
the Holders of Common Units; and (ii) the consent of the holders of at least
fifty-one percent (51%) of the outstanding Series A Preferred Units, which
consent may not be unreasonably withheld (except that the Managing Member may
sell, assign or transfer its interest to an Affiliate without the consent of the
Members). Upon any transfer of Units in accordance with the provisions of this
Section 8.1, the transferee Managing Member shall become vested with the powers
and rights of the transferor Managing Member, and shall be liable for all
obligations and responsible for all duties of the Managing Member, once such
transferee has executed such instruments as may be necessary to effectuate such
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admission and to confirm the agreement of such transferee to be bound by all the
terms and provisions of this Agreement with respect to the Units so acquired. It
is a condition to any transfer otherwise permitted hereunder that the transferee
assumes by operation of law or express agreement all of the obligations of the
transferor Managing Member under this Agreement with respect to such transferred
Units and no such transfer (other than pursuant to a statutory merger or
consolidation wherein all obligations and liabilities of the transferor Managing
Member are assumed by a successor corporation by operation of law) shall relieve
the transferor Managing Member of its obligations under this Agreement without
the Consent of the Holders of the Common Units, in their reasonable discretion.
In the event the Managing Member withdraws from the Company, in violation of
this Agreement or otherwise, or dissolves or terminates or upon the Bankruptcy
of the Managing Member, a Majority in Interest of the Common Units and the
holders of at least fifty-one percent (51%) of the outstanding Series A
Preferred Units, voting separately as separate classes, may elect to continue
the Company business by selecting a substitute Managing Member.
8.2 TRANSFERS BY OTHER MEMBERS. Except as otherwise provided
herein, no Member (other than the Managing Member) shall have the right to
transfer all or a portion of its Units to any Person without the written consent
of the Managing Member, which consent may be given or withheld in the sole
discretion of the Managing Member. It is a condition to any transfer otherwise
permitted hereunder that the transferee assumes by operation of law or express
agreement all of the obligations of the transferor Member under this Agreement
with respect to such transferred Units and no such transfer (other than pursuant
to a statutory merger or consolidation wherein all obligations and liabilities
of the transferor Member are assumed by a successor corporation by operation of
law) shall relieve the transferor Member of its obligations under this Agreement
without the approval of the Managing Member, which may be given or withheld in
its sole discretion. Upon such transfer, the transferee shall be admitted as a
substituted member of the Company (the "Substituted Member") and shall succeed
to all of the rights of the transferor Member under this Agreement in the place
and stead of such transferor Member. Any transferee, whether or not admitted as
a Substituted Member, shall take subject to the obligations of the transferor
hereunder. Unless admitted as a Substituted Member, no transferee, whether by a
voluntary transfer, by operation of law or otherwise, shall have rights
hereunder, other than to receive such portion of the distributions made by the
Company as are allocable to the Units transferred.
8.3 RESTRICTIONS ON TRANSFER. In addition to any other
restrictions on transfer herein contained, in no event may any transfer or
assignment of Units by any Member be made (a) to any Person who lacks the legal
right, power or capacity to own Units; (b) in violation of any provision of any
mortgage or trust deed (or the note or bond secured thereby) constituting a Lien
against a Property or any part thereof, or other instrument, document or
agreement to which the Company or any Property Partnership is a party or
otherwise bound; (c) in violation of applicable law; (d) unless such assignment
or transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or is exempt from registration thereunder;
(e) of any component portion of a Unit, such as the Capital Account, or rights
to Net Operating Cash Flow, separate and apart from all other components of such
Unit, (f) in the event such transfer would cause GGPI to cease to comply with
the REIT Requirements, (g) if such transfer would cause a termination of the
Company for federal income tax purposes, (h) if such transfer would, in the
opinion of counsel to the Company, cause the Company to cease to be classified
as a
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partnership for Federal income tax purposes or would cause the Company to have
more than 100 partners within the meaning of Reg. ss.1.7704-1(h), (i) if such
transfer would cause the Company to become, with respect to any employee benefit
plan subject to Title 1 of ERISA, a "party-in-interest" (as defined in Section
3(14) of ERISA) or a "disqualified person" (as defined in Section 4975(e)(2) of
the Code), or (j) if such transfer would, in the opinion of counsel to the
Company, cause any portion of the assets of the Company to constitute assets of
any employee benefit plan pursuant to Department of Labor Regulations Section
2510.3-101.
8.4 BANKRUPTCY OF A MEMBER. The Bankruptcy of any Member (other
than the Managing Member) shall not cause a dissolution of the Company, but the
rights of such Member to share in the Net Profits or Net Losses of the Company
and to receive distributions of Company funds shall, on the happening of such
event, devolve on its successors or assigns, subject to the terms and conditions
of this Agreement, and the Company shall continue as a limited liability
company. However, in no event shall such assignee(s) become a Substituted Member
without the written consent of the Managing Member.
ARTICLE IX
ARBITRATION OF DISPUTES
9.1 ARBITRATION. Notwithstanding anything to the contrary
contained in this Agreement, all claims, disputes and controversies between the
parties hereto (including, without limitation, any claims, disputes and
controversies between the Company and any one or more of the Members and any
claims, disputes and controversies between any one or more Members) arising out
of or in connection with this Agreement or the Company shall be resolved by
binding arbitration in (x) New York, New York with respect to any dispute
involving the Series A Preferred Units and (y) with respect to all other
disputes, Chicago, Illinois, in accordance with this Article IX and, to the
extent not inconsistent herewith, the Expedited Procedures and Commercial
Arbitration Rules of the American Arbitration Association.
9.2 PROCEDURES. Any arbitration called for by this Article IX
shall be conducted in accordance with the following procedures:
(a) The Company or any Member (the "Requesting Party") may
demand arbitration pursuant to Section 9.1 at any time by giving
written notice of such demand (the "Demand Notice") to all other
Members and (if the Requesting Party is not the Company) to the Company
which Demand Notice shall describe in reasonable detail the nature of
the claim, dispute or controversy.
(b) Within fifteen (15) days after the giving of a Demand
Notice, the Requesting Party, on the one hand, and each of the other
Members and/or the Company against whom the claim has been made or with
respect to which a dispute has arisen (collectively, the "Responding
Party"), on the other hand, shall select and designate in writing to
the other party one reputable, disinterested individual (a "Qualified
Individual") willing to act as an arbitrator of the claim, dispute or
controversy in question. Each of the Requesting Party and the
Responding Party shall use their best efforts to select a lawyer or
retired judge having no affiliation with any of the parties as
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their respective Qualified Individual. Within fifteen (15) days after
the foregoing selections have been made, the arbitrators so selected
shall jointly select a lawyer or retired judge having no affiliation
with any of the parties as the third Qualified Individual willing to
act as an arbitrator of the claim, dispute or controversy in question.
In the event that the two arbitrators initially selected are unable to
agree on a third arbitrator within the second fifteen (15) day period
referred to above, then, on the application of either party, the
American Arbitration Association shall promptly select and appoint a
lawyer or retired judge having no affiliation with any of the parties
as the Qualified Individual to act as the third arbitrator. The three
arbitrators selected pursuant to this subsection (b) shall constitute
the arbitration panel for the arbitration in question.
(c) The presentations of the parties hereto in the
arbitration proceeding shall be commenced and completed within sixty
(60) days after the selection of the arbitration panel pursuant to
subsection (b) above, and the arbitration panel shall render its
decision in writing within thirty (30) days after the completion of
such presentations. Any decision concurred in by any two (2) of the
arbitrators shall constitute the decision of the arbitration panel, and
unanimity shall not be required.
(d) The arbitration panel shall have the discretion to
include in its decision a direction that all or part of the attorneys'
fees and costs of any party or parties and/or the costs of such
arbitration be paid by any other party or parties. On the application
of a party before or after the initial decision of the arbitration
panel, and proof of its attorneys' fees and costs, the arbitration
panel shall order the other party to make any payments directed
pursuant to the preceding sentence.
9.3 BINDING CHARACTER. Any decision rendered by the arbitration
panel pursuant to this Article IX shall be final and binding on the parties
hereto, and judgment thereon may be entered by any state or federal court of
competent jurisdiction.
9.4 EXCLUSIVITY. Arbitration shall be the exclusive method
available for resolution of claims, disputes and controversies described in
Section 9.1, and the Company and its Members stipulate that the provisions
hereof shall be a complete defense to any suit, action, or proceeding in any
court or before any administrative or arbitration tribunal with respect to any
such claim, controversy or dispute. The provisions of this Article IX shall
survive the dissolution of the Company. Notwithstanding the foregoing, the
parties may seek injunctive relief or similar relief from a court of competent
jurisdiction in New York, New York before an arbitration panel has been
appointed.
9.5 NO ALTERATION OF AGREEMENT. Nothing contained herein shall be
deemed to give the arbitrators any authority, power or right to alter, change,
amend, modify, add to, or subtract from any of the provisions of this Agreement.
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ARTICLE X
GENERAL PROVISIONS
10.1 NOTICES. Except as otherwise provided herein, all notices,
offers or other communications required or permitted to be given pursuant to
this Agreement shall be in writing and may be personally served, delivered by
nationally recognized overnight courier, telecopied or sent by registered or
certified United States mail, postage prepaid and properly addressed, and shall
be deemed to have been given when delivered in person or by nationally
recognized courier or registered or certified U.S. mail or upon receipt of
telecopy by the appropriate party. For purposes of this Section 10.1, the
addresses of the parties hereto shall be as set forth opposite their names on
the signature pages thereto. The address of any party hereto may be changed by a
notice in writing given in accordance with the provisions hereof.
10.2 SUCCESSORS. This Agreement and all the terms and provisions
hereof shall be binding upon and shall inure to the benefit of all Members, and
their legal representatives, heirs, successors and permitted assigns, except as
expressly herein otherwise provided.
10.3 EFFECT AND INTERPRETATION. This Agreement shall be governed by
and construed in conformity with the laws of the State of Delaware (without
regard to its conflicts of law principles, which might result in the application
of the laws of any other jurisdiction).
10.4 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which shall constitute one and
the same document and all signatures need not appear on the same page.
10.5 MEMBERS NOT AGENTS. Nothing contained herein shall be
construed to constitute any Member the agent of another Member, except as
specifically provided herein, or in any manner to limit the Members in the
carrying on of their own respective businesses or activities.
10.6 ENTIRE UNDERSTANDING; ETC. This Agreement constitutes the
entire agreement and understanding among the Members and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter within (including without limitation the Original Agreement).
10.7 AMENDMENTS. Except as otherwise provided herein (including the
provisions of Section 4.3), this Agreement may not be amended, and no provision
may be waived, except by a written instrument signed by the holders of a
Majority in Interest of the Common Units.
10.8 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid by such court, shall not be affected thereby.
10.9 TRUST PROVISION. This Agreement, to the extent executed by the
trustee of a trust, is executed by such trustee solely as trustee and not in a
separate capacity. Nothing herein contained shall create any liability on, or
require the performance of any covenant by, any such
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trustee individually, nor shall anything contained herein subject the individual
personal property of any trustee to any liability.
10.10 ISSUANCE OF CERTIFICATES REPRESENTING UNITS. The Managing
Member may, in its sole discretion, issue certificates representing all or a
portion of the Units of one or more Members and, in such event, the Managing
Member shall establish such rules and regulations relating to issuances and
reissuances of certificates upon transfer of Units, the division of Units among
multiple certificates and the loss, theft, destruction or mutilation of
certificates as the Managing Member reasonably deems appropriate.
10.11 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage will result in the event that this Agreement is not specifically
enforced, and the parties agree that any damages available at law for a breach
of this Agreement would not be an adequate remedy. Therefore, the provisions
hereof and the obligations of the parties hereunder shall be enforceable in a
court of equity or other tribunal with jurisdiction by a decree of specific
performance, and appropriate injunctive relief may be applied for and granted in
connection therewith. Such remedies shall, however, be cumulative and not
exclusive and shall be in addition to any other remedies which a party may have
under this Agreement or otherwise.
10.12 POWER OF ATTORNEY. Each Member (other than the holders of
Series A Preferred Units) hereby irrevocably constitutes and appoints the
Managing Member his or its true and lawful attorney-in-fact, in his or its name,
place and stead with full power of substitution, to consent to, make, execute,
sign, acknowledge, swear to, record and file, on behalf of such Member and/or on
behalf of the Company, the following:
(a) this Agreement, any certificate of foreign limited
liability company, any certificate of doing business under an assumed
name, and any other certificates or instruments which may be required
to be filed by the Company or such Member under the laws of the State
of Delaware or any other jurisdiction the laws of which may be
applicable;
(b) a certificate of cancellation of the Certificate of
Formation of the Company and such other instruments or documents as may
be deemed necessary or desirable by said attorneys upon the termination
of the Company;
(c) any and all amendments or restatements of the documents
described in subsections (a) and (b) above, provided such amendments
are either required by law, are necessary to correct statements herein
or therein, or are consistent with this Agreement (including without
limitation any amendments referred to in Sections 4.1 and 4.2); and
(d) any and all such other documents as may be deemed
necessary or desirable by said attorney to carry out fully the
provisions of this Agreement and as are consistent with the terms
hereof.
The foregoing grant of authority: (i) is a special power of attorney
coupled with an interest, is irrevocable and shall survive the death or
incapacity of each member and (ii) shall survive the delivery of an assignment
by a Member of the whole or any portion of his or its Units.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, and GGPI has executed this Agreement solely for the purpose of
binding itself under Section 4.3(g), as of the date and year first above
written.
MANAGING MEMBER:
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: General Growth Properties, Inc., a
Delaware corporation, its general
partner
By: /s/ Ronald L. Gern
------------------
Its: Senior Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
OTHER MEMBERS:
CALEDONIAN HOLDING COMPANY, INC., a
Delaware corporation
By: /s/ Ronald L. Gern
------------------
Its: Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
GGP AMERICAN PROPERTIES INC., a
Delaware corporation
By: /s/ Ronald L. Gern
------------------
Its: Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
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<PAGE> 44
GOLDMAN SACHS 2000 EXCHANGE PLACE FUND, L.P.
By: Goldman Sachs Management Partners, L.P.,
its general partner
By: /s/ Eric Lane
-------------
Its:
---------------------------------
c/o Goldman, Sachs & Co.
One New York Plaza
New York, New York 10004
Attention: Elizabeth C. Groves
GGPI:
GENERAL GROWTH PROPERTIES, INC., a
Delaware corporation
By: /s/ Ronald L. Gern
------------------
Its: Senior Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
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<PAGE> 45
EXHIBIT A
ALLOCATIONS
1. Allocation of Net Income and Net Loss.
(a) Net Income. Except as otherwise provided herein, Net Income
for any fiscal year or other applicable period shall be allocated in the
following order and priority:
(1) First, to the holders of the Series A Preferred
Units until the cumulative amount of Net Income allocated to them
pursuant to this subparagraph (a)(1) for such period and all prior
periods equals the cumulative amount of the Net Losses allocated to
them pursuant to subparagraph (b)(2) below for all prior periods;
(2) Second, to the holders of the Series A Preferred
Units until the cumulative amount of Net Income allocated to them
pursuant to this subparagraph (a)(2) equals the cumulative amount of
accrued distributions in respect of the Series A Preferred Units for
such period and all prior periods (whether or not declared or paid);
(3) Third, to the holders of Common Units, until the
cumulative Net Income allocated to them pursuant to this subparagraph
(a)(3) for such period and all prior periods equals the cumulative Net
Losses allocated to them pursuant to subparagraph (b)(3) hereof for all
prior periods (such allocation to be among such holders in the reverse
order that such Net Losses were allocated to them); and
(4) Thereafter, the balance of the Net Income, if any,
shall be allocated to the holders of Common Units, pro rata, in
accordance with the number of Common Units owned by them.
(b) Net Loss. Except as otherwise provided herein, Net Loss of
the Company for each fiscal year or other applicable period shall be allocated
as follows:
(1) First, to the holders of Common Units, pro rata in
accordance with their Capital Accounts, until their Capital Accounts
are reduced to zero (for this purpose, a holder's Capital Account shall
be determined by disregarding any capital contributed by such holder to
the Company that is attributable to the holder's Preferred Units);
(2) Second, to the holders of the Series A Preferred
Units, pro-rata, in accordance with their Capital Accounts, until their
Capital Accounts are reduced to zero; and
(3) Third, to the holders of the Common Units, pro rata
in accordance with the number of Common Units owned by them.
A-1
<PAGE> 46
2. Special Allocations.
Notwithstanding any provisions of paragraph 1 of this Exhibit A,
the following special allocations shall be made in the following order:
(a) Minimum Gain Chargeback (Nonrecourse Liabilities). If there
is a net decrease in Partnership Minimum Gain for any Company fiscal year
(except as a result of conversion or refinancing of Company indebtedness,
certain capital contributions or revaluation of the Company property as further
outlined in Regulation Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each Member
shall be specially allocated items of Company income and gain for such year
(and, if necessary, subsequent years) in an amount equal to that Member's share
of the net decrease in Partnership Minimum Gain. The items to be so allocated
shall be determined in accordance with Regulation Section 1.704-2(f). This
paragraph (a) is intended to comply with the minimum gain chargeback requirement
in said section of the Regulations and shall be interpreted consistently
therewith. Allocations pursuant to this paragraph (a) shall be made in
proportion to the respective amounts required to be allocated to each Member
pursuant hereto.
(b) Minimum Gain Attributable to Partner Nonrecourse Debt. If
there is a net decrease in Minimum Gain Attributable to Partner Nonrecourse Debt
during any fiscal year (other than due to the conversion, refinancing or other
change in the debt instrument causing it to become partially or wholly
nonrecourse, certain capital contributions, or certain revaluations of Company
property as further outlined in Regulation Section 1.704-2(i)(4)), each Member
shall be specially allocated items of Company income and gain for such year
(and, if necessary, subsequent years) in an amount equal to that Member's share
of the net decrease in the Minimum Gain Attributable to Partner Nonrecourse
Debt. The items to be so allocated shall be determined in accordance with
Regulation Section 1.704-2(i)(4) and (j)(2). This paragraph (b) is intended to
comply with the minimum gain chargeback requirement with respect to Partner
Nonrecourse Debt contained in said section of the Regulations and shall be
interpreted consistently therewith. Allocations pursuant to this paragraph (b)
shall be made in proportion to the respective amounts required to be allocated
to each Member pursuant hereto.
(c) Qualified Income Offset. In the event a Member unexpectedly
receives any adjustments, allocations or distributions described in Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), and such Member has an Adjusted
Capital Account Deficit, items of Company income and gain shall be specially
allocated to such Member in an amount and manner sufficient to eliminate the
Adjusted Capital Account Deficit as quickly as possible. This paragraph (c) is
intended to constitute a "qualified income offset" under Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
(d) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal
year or other applicable period shall be allocated to Members in accordance with
the number of Common Units held by them.
(e) Partner Nonrecourse Deductions. Partner Nonrecourse
Deductions for any fiscal year or other applicable period shall be specially
allocated to the Member that bears the economic risk of loss for the debt (i.e.,
the Partner Nonrecourse Debt) in respect of which such
A-2
<PAGE> 47
Partner Nonrecourse Deductions are attributable (as determined under Regulation
Section 1.704-2(b)(4) and (i)(1).
(f) Precontribution Gain. In the event that, during any fiscal
year or other applicable period, any Property Partnership allocates to the
Company Precontribution Gain, each Member (or its successors in interest) who
heretofore contributed to the capital of the Company an interest in such
Property Partnership shall be allocated that Precontribution Gain in accordance
with its respective interest in such Precontribution Gain. For purposes hereof,
"Precontribution Gain" shall mean, with respect to each Shopping Center Project
owned by an existing Property Partnership, that unrealized gain attributable to
the excess of (a) the fair market value of such Shopping Center Project on the
date hereof over (b) the adjusted tax basis of such Shopping Center Project on
such date; provided, however, that the amount of any Precontribution Gain
associated with a Shopping Center Project shall be adjusted to account for
allocations made in accordance with the provisions of Section 3(c) of this
Exhibit A and shall not, in any event, exceed that amount of gain actually
allocated to the Company by the Property Partnership as a result of the sale or
other disposition of such Shopping Center Project.
(g) Curative Allocations. The Regulatory Allocations shall be
taken into account in allocating other items of income, gain, loss, and
deduction among the Members so that, to the extent possible, the cumulative net
amount of allocations of Company items under paragraphs 1 and 2 of this Exhibit
A shall be equal to the net amount that would have been allocated to each Member
if the Regulatory Allocations had not occurred. This subparagraph (g) is
intended to minimize to the extent possible and to the extent necessary any
economic distortions which may result from application of the Regulatory
Allocations and shall be interpreted in a manner consistent therewith. For
purposes hereof, "Regulatory Allocations" shall mean the allocations provided
under this paragraph 2.
3. Tax Allocations.
(a) Generally. Subject to paragraphs (b) and (c) hereof, items of
income, gain, loss, deduction and credit to be allocated for income tax purposes
(collectively, "Tax Items") shall be allocated among the Members on the same
basis as their respective book items.
(b) Sections 1245/1250 Recapture. If any portion of gain from the
sale of property is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 ("Affected Gain"), then (A) such
Affected Gain shall be allocated among the Members in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated and (B) other Tax Items of gain of the same character that would
have been recognized, but for the application of Code Sections 1245 and/or 1250,
shall be allocated away from those Members who are allocated Affected Gain
pursuant to Clause (A) so that, to the extent possible, the other Members are
allocated the same amount, and type, of capital gain that would have been
allocated to them had Code Sections 1245 and/or 1250 not applied. For purposes
hereof, in order to determine the proportionate allocations of depreciation and
amortization deductions for each fiscal year or other applicable period, such
deductions shall be deemed allocated on the same basis as Net Income and Net
Loss for such respective period.
A-3
<PAGE> 48
(c) Allocations Respecting Section 704(c) and Revaluations;
Curative Allocations Resulting from the Ceiling Rule. Notwithstanding paragraph
(b) hereof, Tax Items with respect to Company property that is subject to Code
Section 704(c) and/or Regulation Section 1.704-1(b)(2)(iv)(f) (collectively
"Section 704(c) Tax Items") shall be allocated in accordance with said Code
section and/or Regulation Section 1.704-1(b)(4)(i), as the case may be. The
allocation of Tax Items shall be in accordance with the "traditional method" set
forth in Treas. Reg. "1.704-3(b)(1), unless otherwise determined by the Managing
Member, and shall be subject to the ceiling rule stated in Regulation Section
1.704-3(b)(1). The Managing Member is authorized to specially allocate Tax Items
(other than the Section 704(c) Tax Items) to cure for the effect of the ceiling
rule. The intent of this Section 3(c) and Section 2(f) above is that each Member
who contributed to the capital of the Company a partnership or other interest in
an existing Property Partnership will bear, through reduced allocations of
depreciation and increased allocations of gain or other items, the tax
detriments associated with any Precontribution Gain and this Section 3(c) and
Section 2(f) are to be interpreted consistently with such intent.
A-4
<PAGE> 49
SCHEDULE A
MEMBERS
Member Common Units Preferred Units
------ ------------ ---------------
GGP Limited Partnership 911,900 0
Caledonian Holding
Company, Inc. 29,600 0
GGP American Properties Inc. 58,500 0
Goldman Sachs 2000
Exchange Place Fund, L.P. 0 700,000 Series A Preferred Units
<PAGE> 50
SCHEDULE B
TO
OPERATING AGREEMENT
<TABLE>
<CAPTION>
Entity Interest
------ --------
<S> <C>
Park Mall L.L.C. 100% membership interest
Bay Shore Mall II L.L.C. 99% membership interest
Bellis Fair Partners 99% general partnership interest
Birchwood Mall Partners L.L.C. 99.999% membership interest
Gateway Mall Partners 99% general partnership interest
Grand Traverse Mall Partners 99% general partnership interest
Mall of the Bluffs Partners L.L.C. 99.999% membership interest
Oakwood Hills Mall Partners L.L.P. 99.999% general partnership interest
Pines Mall Partners 99% general partnership interest
River Falls Mall Partners 99% general partnership interest
Eagle Ridge Mall, L.P. 99.5% limited partnership interest
Eden Prairie Mall L.L.C. 99.999% membership interest
Tracy Mall Partners II, L.P. 99.5% limited partnership interest
Century Plaza L.L.C. 99.5% membership interest
Knollwood Company, L.P. 99.5% limited partnership interest
South Shore Partners, L.P. 99.5% limited partnership interest
Lakeview Square Limited Partnership 99% limited partnership interest
Lansing Mall Limited Partnership 99% limited partnership interest
GGP-Grandville L.L.C. 99% membership interest
Valley Hills Mall L.L.C. 99.999% membership interest
Piedmont Mall Partners 99.999% general partnership interest
Bossier Outparcel L.P. 99.999% limited partnership interest
Pierre Bossier Mall, L.P. 99.999% limited partnership interest
Westwood Land L.L.C. 99.999% membership interest
Southwest Denver Land L.L.C. 99.999% membership interest
Southwest Plaza L.L.C. 99.999% membership interest
Spring Hill Mall L.L.C. 99.999% membership interest
Coastland Center, L.P. 99.999% limited partnership interest
</TABLE>
<PAGE> 51
<TABLE>
<CAPTION>
Entity Interest
------ --------
<S> <C>
Market Place Outparcel L.L.C. 99.999% membership interest
Kalamazoo Mall L.L.C. 99.5% membership interest
GGP Ala Moana Holdings L.L.C. 100% membership interest
Baybrook Mall, L.P. 99.999% limited partnership interest
Champaign Market Place L.L.C. 99.999% membership interest
Colony Square Mall L.L.C. 99.999% membership interest
Columbia Mall L.L.C. 99.999% membership interest
Fallbrook Square Partners II, L.P. 99.999% limited partnership interest
Fox River Shopping Center L.L.P. 99.999% general partnership interest
Lockport L.L.C. 99.999% membership interest
Rio West L.L.C. 99.999% membership interest
River Hills Mall L.L.P. 99.999% general partnership interest
Sooner Fashion Mall L.L.C. 99.999% membership interest
Southlake Mall L.L.C. 99.999% membership interest
Westwood Mall Limited Partnership 99.999% limited partnership interest
Capital Mall L.L.C. 100% membership interest
Chapel Hills Mall L.L.C. 100% membership interest
</TABLE>
2
<PAGE> 52
SCHEDULE C
TO
OPERATING AGREEMENT
GGP American 100% membership interest in Rochester Mall LLC
99.5% membership interest in Boulevard Mall I LLC
99.5% membership interest in Boulevard Mall II LLC
Caledonian 100% membership interest in Bakersfield Mall LLC
