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Exhibit 10.33
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SIXTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
SIMON PROPERTY GROUP, L.P.
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ARTICLE I
Definitions; Etc.
1.1 Definitions.......................................................
ARTICLE II
Continuation of Partnership
2.1 Continuation......................................................
2.2 Name..............................................................
2.3 Character of the Business.........................................
2.4 Location of the Principal Place of Business.......................
2.5 Registered Agent and Registered Office............................
ARTICLE III
Term
3.1 Commencement......................................................
3.2 Dissolution.......................................................
ARTICLE IV
Contributions to Capital
4.1 General Partner Capital Contributions.............................
4.2 Limited Partner Capital Contributions.............................
4.3 Additional Funds..................................................
4.4 Redemption; Change in Number of Shares Outstanding................
4.5 Stock Option Plan; Dividend Reinvestment Plan.....................
4.6 No Third Party Beneficiary........................................
4.7 No Interest; No Return............................................
4.8 Capital Accounts..................................................
ARTICLE V
Representations, Warranties and Acknowledgment
5.1 Representations and Warranties by Managing General
Partner...........................................................
5.2 Representations and Warranties by Non-Managing General
Partners..........................................................
5.4 Representations and Warranties by the Limited Partners............
5.5 Acknowledgment by Each Partner....................................
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ARTICLE VI
Allocations, Distributions and Other
Tax and Accounting Matters
6.1 Allocations.......................................................
6.2 Distributions.....................................................
6.3 Books of Account; Segregation of Funds............................
6.4 Reports...........................................................
6.5 Audits............................................................
6.6 Tax Returns.......................................................
6.7 Tax Matters Partner...............................................
6.8 Withholding.......................................................
ARTICLE VII
Rights, Duties and Restrictions
of the General Partners
7.1 Expenditures by Partnership.......................................
7.2 Powers and Duties of the General Partners.........................
7.3 Major Decisions...................................................
7.4 Managing General Partner and Non-Managing General
Partners Participation............................................
7.5 Proscriptions.....................................................
7.6 Additional Partners...............................................
7.7 Title Holder......................................................
7.8 Waiver and Indemnification........................................
7.9 Limitation of Liability of Directors Shareholders
and Officers of the Managing General Partner and
the Non-Managing General Partners.................................
7.10 Distribution to Limited Partners of the
SPG Partnership...................................................
ARTICLE VIII
Dissolution, Liquidation and Winding-Up
8.1 Accounting........................................................
8.2 Distribution on Dissolution.......................................
8.3 Sale of Partnership Assets........................................
8.4 Distributions in Kind.............................................
8.5 Documentation of Liquidation......................................
8.6 Liability of the Liquidation Agent................................
ARTICLE IX
Transfer of Partnership Interests
and Related Matters
9.1 Non-Managing General Partners Transfers and
Deemed Transfers..................................................
9.2 Managing General Partner Transfers and Deemed
Transfers.........................................................
9.3 Transfers by Limited Partners.....................................
9.4 Issuance of Additional Partnership Units and
Preferred Units...................................................
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9.5 Restrictions on Transfer..........................................
9.6 Shelf Registration Rights.........................................
ARTICLE X
Rights and Obligations of the Limited Partners
10.1 No Participation in Management....................................
10.2 Bankruptcy of a Limited Partner...................................
10.3 No Withdrawal.....................................................
10.4 Duties and Conflicts..............................................
10.5 Guaranty and Indemnification Agreements...........................
ARTICLE XI
Grant of Rights to the Limited Partners
11.1 Grant of Rights...................................................
11.2 Limitation on Exercise of Rights..................................
11.3 Computation of Purchase Price/Form of Payment.....................
11.4 Closing...........................................................
11.5 Closing Deliveries................................................
11.6 Term of Rights....................................................
11.7 Covenants of the Managing General Partner.........................
11.8 Limited Partners' Covenant........................................
11.9 Dividends.........................................................
ARTICLE XII
General Provisions
12.1 Investment Representations........................................
12.2 Notices...........................................................
12.3 Successors........................................................
12.4 Liability of Limited Partners.....................................
12.5 Effect and Interpretation.........................................
12.6 Counterparts......................................................
12.7 Partners Not Agents...............................................
12.8 Entire Understanding; Etc.........................................
12.9 Severability......................................................
12.10 Trust Provision...................................................
12.11 Pronouns and Headings.............................................
12.12 Assumption of Liabilities.........................................
12.13 Assurances........................................................
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SIXTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
SIMON PROPERTY GROUP, L.P.
THIS SIXTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT, dated as
of August __, 1998, is made by and among SD PROPERTY GROUP, INC., an Ohio
corporation as a non-managing general partner ("SD Property"), SPG PROPERTIES,
INC., a Maryland corporation as a non-managing general partner ("SPG Properties"
and together with SD Property, the "Non-Managing General Partners"), SIMON
PROPERTY GROUP, INC., a Delaware corporation as managing general partner (the
"Managing General Partner"), and those parties who have executed this Agreement
as limited partners and whose names and addresses are set forth on Exhibit A
hereto as limited partners (the "Limited Partners").
WITNESSETH:
WHEREAS, the Agreement of Limited Partnership of Simon DeBartolo Group,
L.P. (the "Partnership") was last amended and restated in its entirety by the
Fifth Amended and Restated Limited Partnership Agreement, dated August 9, 1996;
and
WHEREAS, concurrently with the execution hereof, SPG Merger Sub, Inc.,
a Maryland corporation and a wholly-owned subsidiary of the Managing General
Partner merged into Simon DeBartolo Group, Inc. ("SDG"), pursuant to the
Agreement and Plan of Merger, dated as of February 18, 1998 (the "Merger
Agreement"), among SDG, Corporate Property Investors (the predecessor to the
Managing General Partner) and Corporate Realty Consultants, Inc. (renamed SPG
Realty Consultants, Inc. ("SPG Realty")); and
WHEREAS, concurrently with the execution hereof, the Partnership and
SPG Realty will enter into an Agreement of Limited Partnership of SPG Realty
Consultants, L.P. (the "SRC Partnership"), pursuant to which the Partnership
will become a limited partner of the SRC Partnership and receive SRC Partnership
Units, which the Partnership will, in turn, distribute pro rata to all Limited
Partners other than any General Partner who also holds SRC Partnership Units,
whereupon such Limited Partners shall become limited partners of the SRC
Partnership; and
WHEREAS, the parties hereto wish to provide for the further amendment
and restatement of the Agreement of Limited Partnership of the Partnership to
allow for the admission of the Managing General Partner and to make various
other changes provided for below; and
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WHEREAS, the Managing General Partner is concurrently herewith, in
exchange for the contribution to the Partnership and its subsidiaries of
substantially all of its assets and liabilities, becoming the managing general
partner and a Limited Partner of the Partnership, holding Units in the amount
set forth in Exhibit A; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree that the Agreement of Limited
Partnership of the Partnership, as heretofore amended and restated, is hereby
further amended and restated in its entirety to read as follows:
ARTICLE I
Definitions; Etc.
1.1 Definitions. Except as otherwise herein expressly provided the
following terms and phrases shall have the meanings set forth below:
"Accountants" shall mean the firm or firms of independent certified
public accountants selected by the Managing General Partner from time to time on
behalf of the Partnership to audit the books and records of the Partnership and
to prepare and certify statements and reports in connection therewith.
"Act" shall mean the Revised Uniform Limited Partnership Act as enacted
in the State of Delaware, as the same may hereafter be amended from time to
time.
"Additional Units" shall have the meaning set forth in Section 9.4
hereof.
"Adjustment Date" shall have the meaning set forth in Section 4.3(b)
hereof.
"Administrative Expenses" shall mean (i) all administrative and
operating costs and expenses incurred by the Partnership, and (ii) those
administrative costs and expenses and accounting and legal expenses incurred by
the Managing General Partner or the Non-Managing General Partners on behalf or
for the benefit of the Partnership.
"Affected Gain" shall have the meaning set forth in Section 6.1(g)
hereof.
"Affiliate" shall mean, with respect to any Partner (or as to any other
Person the affiliates of which are relevant for purposes of any of the
provisions of this Agreement) (i) any member of the Immediate Family of such
Partner or Person; (ii) any partner, trustee, beneficiary or shareholder of such
Partner or Person; (iii) any legal representative, successor or assignee of such
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Partner or any Person referred to in the preceding clauses (i) and (ii); (iv)
any trustee or trust for the benefit of such Partner or any Person referred to
in the preceding clauses (i) through (iii); or (v) any Entity which, directly or
indirectly through one or more intermediaries, Controls, is Controlled by or is
under common Control with such Partner or any Person referred to in the
preceding clauses (i) through (iv).
"Affiliate Financing" shall mean financing or refinancing obtained from
a Partner or an Affiliate of a Partner by the Partnership.
"Agreement" shall mean this Sixth Amended and Limited Partnership
Agreement, as originally and as amended, modified, supplemented or restated from
time to time, as the context requires.
"Bankruptcy" shall mean, with respect to any Partner, (i) the
commencement by such Partner of any proceeding seeking relief under any
provision or chapter of the federal Bankruptcy Code or any other federal or
state law relating to insolvency, bankruptcy or reorganization, (ii) an
adjudication that such Partner is insolvent or bankrupt, (iii) the entry of an
order for relief under the federal Bankruptcy Code with respect to such Partner,
(iv) the filing of any petition or the commencement of any case or proceeding
against such Partner under the federal Bankruptcy Code unless such petition and
the case or proceeding initiated thereby are dismissed within ninety (90) days
from the date of such filing or commencement, (v) the filing of an answer by
such Partner 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 Partner unless such appointment is vacated or dismissed
within ninety (90) days from the date of such appointment but not less than five
(5) days before the proposed sale of any assets of such Partner, (vii) the
execution by such Partner of a general assignment for the benefit of creditors,
(viii) the convening by such Partner 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 Partner to pay its debts as they mature,
(x} the levy, attachment, execution or other seizure of substantially all of the
assets of such Partner where such seizure is not discharged within thirty (30)
days thereafter, or (xi) the admission by such Partner 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.
"Capital Account" shall have the meaning set forth in Section 4.8(a)
hereof.
"Capital Contribution" shall mean, with respect to any Partner, the
amount of money and the initial Gross Asset Value of any property other than
money contributed to the Partnership with respect to the Partnership Units held
by such Partner (net of
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liabilities secured by such property which the Partnership assumes or takes
subject to).
"Certificate" shall mean the Certificate of Limited Partnership
establishing the Partnership, as filed with the office of the Delaware Secretary
of State on November 18, 1993, as it has or may hereafter be amended from time
to time in accordance with the terms of this Agreement and the Act.
"Charter" shall mean the articles of incorporation of a General Partner
and all amendments, supplements and restatements thereof.
"Closing Price" on any date shall mean the last sale price per share,
regular way, of the Shares or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, of the Shares 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 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 Shares are listed or admitted to trading or, if
the 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 for
the Shares or, if such system is no longer in use, the principal other automated
quotations system that may then be in use or, if the 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 Shares selected
from time to time by the Board of Directors of the Managing General Partner.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
corresponding provisions of succeeding law.
"Computation Date" shall have the meaning set forth in Section 11.3
hereof.
"Consent of the DeBartolos" shall mean consent of those Limited
Partners who are "DeBartolos" as defined herein. EJDC (in such capacity the
"DeBartolo Designee") is hereby granted authority by those Limited Partners who
are DeBartolos to grant or withhold consent on behalf of the DeBartolos whenever
the Consent of the DeBartolos is required hereunder. The DeBartolos shall have
the right, from time to time, by written notice to the Partnership signed by
DeBartolos who hold in the aggregate more than fifty percent (50%) of the
Partnership Units then held by the DeBartolos, to substitute a new Person as the
DeBartolo Designee for the Person who is then acting as such. The Partnership,
the Partners and all Persons dealing with the Partnership shall be fully
protected in
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relying on any written consent of the DeBartolos which is executed by the Person
who is then acting as the DeBartolo Designee. In the event that at any time
there is no DeBartolo Designee, the consent of the DeBartolos shall be given by
those DeBartolos who hold in the aggregate more than fifty percent (50%) of the
Partnership Units then held by the DeBartolos.
"Consent of the Limited Partners" shall mean the written consent of a
Majority-In-Interest of the Limited Partners, which consent shall be obtained
prior to the taking of any action for which it is required by this Agreement and
may be given or withheld by a Majority-In-Interest of the Limited Partners,
unless otherwise expressly provided herein, in their sole and absolute
discretion. Whenever the Consent of the Limited Partners is sought by a General
Partner, the request for such consent, outlining in reasonable detail the matter
or matters for which such consent is being requested, shall be submitted to all
of the Limited Partners, and each Limited Partner shall have at least 15 days to
act upon such request.
"Consent of the Simons" shall mean consent of those Limited Partners
who are "Simons" as defined herein. David Simon (the "Simon Designee") is hereby
granted authority by those Limited Partners who are Simons to grant or withhold
consent on behalf of the Simons whenever the Consent of the Simons is required
hereunder. The Simons shall have the right from time to time, by written notice
to the Partnership signed by Simons who hold in the aggregate more than fifty
percent (50%) of the Partnership Units then held by the Simons, to substitute a
new Person as the Simon Designee for the Person who is then acting as such. The
Partnership, the Partners and all Persons dealing with the Partnership shall be
fully protected in relying on any written consent of the Simons which is
executed by the Person who is then acting as the Simon Designee. In the event
that at any time there is no Simon Designee, the Consent of the Simons shall be
given by those Simons who hold in the aggregate more than fifty percent (50%) of
the Partnership Units then held by the Simons.
"Contributed Funds" shall have the meaning set forth in Section 4.3(b)
hereof.
"Contribution Current Per Share Market Price" on any date shall mean
the average of the Closing Prices for a period of not less than five consecutive
Trading Days nor more than thirty consecutive Trading Days ending on such date,
such period determined in the sole and absolute discretion of the Managing
General Partner.
"Contribution Date" shall have the meaning set forth in Section 9.4
hereof.
"Contribution Deemed Partnership Unit Value" as of any date shall mean
(i) the Contribution Current Per Share Market Price as of the Trading Day
immediately preceding such date, minus (ii)
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the Deemed Partnership Unit Value (as defined in the SRC Partnership agreement);
provided, however, that Contribution Deemed Partnership Unit Value shall be
adjusted as described in Section 11.7(d) hereof in the event of any stock
dividend, stock split, stock distribution or similar transaction.
"Control" shall mean the ability, whether by the direct or indirect
ownership of shares or other equity interests, by contract or otherwise, to
elect a majority of the directors of a corporation, to select the managing
partner of a partnership or otherwise to select, or have the power to remove and
then select, a majority of those Persons exercising governing authority over an
Entity. In the case of a limited partnership, the sole general partner, all of
the general partners to the extent each has equal management control and
authority, or the managing general partner or managing general partners thereof
shall be deemed to have control of such partnership and, in the case of a trust,
any trustee thereof or any Person having the right to select or remove any such
trustee shall be deemed to have control of such trust.
"Covered Sale" shall have the meaning set forth in Section 6.2(d)
hereof.
"Current Per Share Market Price" on any date shall mean the average of
the Closing Prices for the five consecutive Trading Days ending on such date.
"DeBartolos" shall mean (i) the Estate of Edward J. DeBartolo, (ii)
Edward J. DeBartolo, Jr., Marie Denise DeBartolo York, members of the Immediate
Family of either of the foregoing, any other members of the Immediate Family of
Edward J. DeBartolo, any other lineal descendants of any of the foregoing and
any trusts established for the benefit of any of the foregoing, and (iii) EJDC
and any other Entity Controlled by any one or more of the Persons listed or
specified in clauses (i) and (ii) above.
"Deemed Partnership Unit Value" as of any date shall mean (i) the
Current Per Share Market Price as of the Trading Day immediately preceding such
date, minus (ii) the Deemed Partnership Unit Value (as defined in the SRC
Partnership agreement); provided, however, that Deemed Partnership Unit Value
shall be adjusted as described in Section 11.7(d) hereof in the event of any
stock dividend, stock split, stock distribution or similar transaction.
"Depreciation" shall mean for each Partnership Fiscal Year or other
period, an amount equal to the depreciation, amortization, or other cost
recovery deduction allowable under the Code with respect to a Partnership asset
for such year or other period, except that if the Gross Asset Value of a
Partnership asset differs from its adjusted basis for federal income tax
purposes at the beginning of such year or other period, Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization or other cost recovery deduction
for such year or other period bears to such
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beginning adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the General Partner.
"Development Land" shall mean any vacant land suitable for development
as a Project.
"Directors" shall mean the Board of Directors of the Managing General
Partner.
"Effective Time" shall have the meaning set forth in the Merger
Agreement.
"EJDC" shall mean The Edward J. DeBartolo Corporation, an Ohio
corporation.
"Entity" shall mean any general partnership, limited partnership,
limited liability company, limited liability partnership, corporation, joint
venture, trust, business trust, cooperative or association.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time (or any corresponding provisions of succeeding
laws).
"Exercise Notice" shall have the meaning set forth in Section 11.1
hereof.
"GAAP" shall mean generally accepted accounting principles consistently
applied.
"General Partner" shall mean the Managing General Partner, the
Non-Managing General Partners and their respective duly admitted successors and
assigns and any other Person who is a general partner of the Partnership at the
time of reference thereto.
"Gross Asset Value" shall have the meaning set forth in Section 4.8(b)
hereof.
"Gross Income" shall mean the income of the Partnership determined
pursuant to Section 61 of the Code before deduction of items of expense or
deduction.
"Immediate Family" shall mean, with respect to any Person, such
Person's spouse, parents, parents-in-law, descendants by blood or adoption,
nephews, nieces, brothers, sisters, brothers-in-law, sisters-in-law and
children-in-law (in each case by whole or half-blood).
"Incurrence" shall have the meaning set forth in Section 10.5(a)
hereof.
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"Independent Directors" shall mean members of the Board of Directors of
the Managing General Partner, none of whom is either employed by the Managing
General Partner or a member (or an Affiliate of a member) of the Simons.
"Institutional Investors" shall have the meaning set forth in Rule
501(a)(1)-(3), (7) and (8) of Regulation D promulgated under the Securities Act.
"Institutional Lender" shall mean a commercial bank or trust company, a
savings and loan association or an insurance company.
"JCP" shall mean JCP Realty, Inc., a Delaware corporation, or
Brandywine Realty, Inc., a Delaware corporation, or any of its or their
Affiliates that becomes a Limited Partner hereunder and that is an "accredited
investor" as defined in Regulation D under the Securities Act, as amended.
"JCP Limited Partner" shall mean JCP, in its capacity as a Limited
Partner or Partners hereunder.
"JCP Property Liabilities" means any liabilities encumbering the assets
of Treasure Coast-JCP Associates, Ltd., Melbourne-JCP Associates, Ltd.,
Boynton-JCP Associates, Ltd., Chesapeake-JCP Associates, Ltd., Mall of the
Mainland Associates, L.P., Port Charlotte-JCP Associates and Northfield Center
Limited Partnership, and any liability of the Partnership or any Subsidiary
Partnership with respect to which JCP has incurred the "economic risk of loss"
within the meaning of Treasury Regulation Section 1.752-2.
"Lien" shall mean any liens, security interests, mortgages, deeds of
trust, charges, claims, encumbrances, restrictions, pledges, options, rights of
first offer or first refusal and any other rights or interests of others of any
kind or nature, actual or contingent, or other similar encumbrances of any
nature whatsoever.
"Limited Partner Liability" shall mean, with respect to each Limited
Partner, each liability (or portion thereof) included in the basis of such
Limited Partner (other than as an "excess nonrecourse liability" within the
meaning of Regulations Section l.752-3(a)(3)) for federal income tax purposes.
"Limited Partners" shall mean those Persons whose names are set forth
on Exhibit A hereto as Limited Partners, their permitted successors or assigns
as limited partners hereof, and/or any Person who, at the time of reference
thereto, is a limited partner of the Partnership.
"Liquidation Agent" shall mean such Person as is selected as the
Liquidation Agent hereunder by the Managing General Partner, which Person may be
the Managing General Partner or an Affiliate of the Managing General Partner,
provided such Liquidation Agent agrees in writing to be bound by the terms of
this Agreement. The
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Liquidation Agent shall be empowered to give and receive notices, reports and
payments in connection with the dissolution, liquidation and/or winding-up of
the Partnership and shall hold and exercise such other rights and powers as are
necessary or required to permit all parties to deal with the Liquidation Agent
in connection with the dissolution, liquidation and/or winding-up of the
Partnership.
"Liquidation Transaction" shall mean any sale of assets of the
Partnership in contemplation of, or in connection with, the liquidation of the
Partnership.
"Losses" shall have the meaning set forth in Section 6.1(a) hereof.
"Major Decisions" shall have the meaning set forth in Section 7.3(b)
hereof.
"Majority-In-Interest of the Limited Partners" shall mean Limited
Partner(s) who hold in the aggregate more than fifty percent (50%) of the
Partnership Units then held by all the Limited Partners, as a class (excluding
any Partnership Units held by the Non-Managing General Partners or by the
Managing General Partner, any Person Controlled by any of such General Partners
or any Person holding as nominee for either of such General Partners).
"Managing General Partner" shall mean Simon Property Group, Inc., a
Delaware corporation.
"Merger Agreement" shall have the meaning set forth in the Recitals
hereto.
"Minimum Gain" shall have the meaning set forth in Section 6.1(d)(l)
hereof.
"Minimum Gain Chargeback" shall have the meaning set forth in Section
6.1(d)(l) hereof.
"Net Financing Proceeds" shall mean the cash proceeds received by the
Partnership in connection with any borrowing by or on behalf of the Partnership
(whether or not secured), or distributed to the Partnership in respect of any
such borrowing by any Subsidiary Entity, after deduction of all costs and
expenses incurred by the Partnership in connection with such borrowing, and
after deduction of that portion of such proceeds used to repay any other
indebtedness of the Partnership, or any interest or premium thereon.
"Net Operating Cash Flow" shall mean, with respect to any fiscal period
of the Partnership, the aggregate amount of all cash received by the Partnership
from any source for such fiscal period (including Net Sale Proceeds and Net
Financing Proceeds but excluding Contributed Funds), less the aggregate amount
of all expenses or other amounts paid with respect to such period and such
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additional cash reserves as of the last day of such period as the Managing
General Partner deems necessary for any capital or operating expenditure
permitted hereunder.
"Net Sale Proceeds" shall mean the cash proceeds received by the
Partnership in connection with a sale or other disposition of any asset by or on
behalf of the Partnership or a sale or other disposition of any asset by or on
behalf of any Subsidiary Entity, after deduction of any costs or expenses
incurred by the Partnership, or payable specifically out of the proceeds of such
sale or other disposition (including, without limitation, any repayment of any
indebtedness required to be repaid as a result of such sale or other disposition
or which the Managing General Partner elects to repay out of the proceeds of
such sale or other disposition, 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 such sale or other disposition.
"Non-Managing General Partners" shall mean, collectively, SD Property
Group, Inc. and SPG Properties, Inc.
"Nonrecourse Liabilities" shall have the meaning set forth in Section
6.l(d)(l) hereof.
"Offered Units" shall have the meaning set forth in Section 11.1
hereof.
"Ownership Limit" shall have the meaning set forth in Article Ninth of
the Charter of the Managing General Partner.
"Paired Shares" shall mean one Share and a pro rata beneficial interest
in the trust which owns all of the outstanding shares of the Common Stock, par
value $0.0001 per share, of SPG Realty that are subject to a trust agreement
among certain stockholders of the Managing General Partner, a trustee and SPG
Realty, pursuant to which holders of Shares are beneficiaries of such trust
agreement.
"Partner Nonrecourse Debt" shall have the meaning set forth in Section
6.1(d)(2) hereof.
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning set
forth in Section 6.1(d)(2) hereof.
"Partner Nonrecourse Deduction" shall have the meaning set forth in
Section 6.1(d)(2) hereof.
"Partners" shall mean the Managing General Partner, the Non-Managing
General Partners and the Limited Partners, their duly admitted successors or
assigns or any Person who is a partner of the Partnership at the time of
reference thereto.
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"Partnership" shall mean Simon Property Group, L.P., a Delaware limited
partnership, as such limited partnership may from time to time be constituted.
"Partnership Fiscal Year" shall mean the calendar year.
"Partnership Interest" shall mean the interest of a Partner in the
Partnership.
"Partnership Minimum Gain" shall have the meaning set forth in Section
1.704-2(b)(2) of the Regulations.
"Partnership Record Date" shall mean the record date established by the
Managing General Partner for a distribution of Net Operating Cash Flow pursuant
to Section 6.2 hereof, which record date shall be the same as the record date
established by the Managing General Partner for distribution to its shareholders
of some or all of its share of such distribution.
"Partnership Units" or "Units" shall mean the interest in the
Partnership of any Partner which entitles a Partner to the allocations (and each
item thereof) specified in Section 6.1(b) hereof and all distributions from the
Partnership, and its rights of management, consent, approval, or participation,
if any, as provided in this Agreement. Partnership Units do not include
Preferred Units. Each Partner's percentage ownership interest in the Partnership
shall be determined by dividing the number of Partnership Units then owned by
each Partner by the total number of Partnership Units then outstanding. The
number of Partnership Units held by each Partner at the date hereof is as set
forth opposite its name on attached Exhibit A. Each Partnership Unit shall be
paired with a SRC Partnership Unit.
"Person" shall mean any individual or Entity.
"Pledge" shall mean granting of a Lien on a Partnership Interest.
"Post-Exchange Distribution" shall have the set forth in Section 6.2(a)
hereof.
"Preferred Contributed Funds" shall have the set forth in Section
4.3(c) hereof.
"Preferred Distribution Requirement" shall have the meaning set forth
in Section 4.3(c) hereof.
"Preferred Distribution Shortfall" shall have the set forth in Section
6.2(b)(i) hereof.
"Preferred Redemption Amount" shall mean, with respect to any class or
series of Preferred Units, the sum of (i) the amount of any accumulated
Preferred Distribution Shortfall with respect to such class or series of
Preferred Units, (ii) the Preferred
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Distribution Requirement with respect to such class or series of Preferred Units
to the date of redemption and (iii) the Preferred Redemption Price indicated in
the Preferred Unit Designation with respect to such class or series of Preferred
Units.
"Preferred Redemption Price" shall have the meaning set forth in
Section 4.3(c) hereof.
"Preferred Shares" shall mean any class of equity securities of any of
the General Partners now or hereafter authorized or reclassified having dividend
rights that are superior or prior to dividends payable on the Shares or any
other shares of common stock of such General Partners.
"Preferred Unit Designation" shall have the set forth in Section 4.3(c)
hereof.
"Preferred Unit Issue Price" shall mean the amount of the Required
Funds contributed or deemed to have been contributed by a General Partner in
exchange for a Preferred Unit.
"Preferred Units" shall mean interests in the Partnership issued to a
General Partner pursuant to Sections 4.1(c) and 4.3(c) hereof. The holder of
Preferred Units shall have such rights to the allocations of Profits and Losses
as specified in Section 6.1 hereof and to distributions pursuant to Section 6.2
hereof, but shall not, by reason of its ownership of such Preferred Units, be
entitled to participate in the management of the Partnership or to consent to or
approve any action which is required by the Act or this Agreement to be approved
by any or all of the Partners.
"Profits" shall have the meaning set forth in Section 6.1(a) hereof.
"Project" shall mean any property that is or is planned to be used
primarily for retail purposes, and shall include, but is not limited to, a
regional mall, a community shopping center, a specialty retail center and a
mixed-use property which contains a major retail component.
"Property or Properties" shall mean any Development Land or Project in
which the Partnership acquires ownership of (a) the fee or leasehold interest or
(b) an indirect fee or leasehold interest through an interest in any other
Entity.
"Purchase Price" shall have the meaning set forth in Section 11.3
hereof.
"Qualified REIT Subsidiaries" shall have the meaning set forth in
Section 856(i)(2) of the Code.
"Registration Rights Agreements" shall mean the agreements, in effect
as of the Effective Time, among the Managing General Partner, certain of its
stockholders and certain holders of Units.
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"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 Section
6.l(d)(5) hereof.
"REIT" shall mean a real estate investment trust as defined in Section
856 of the Code.
"REIT Expenses" shall mean (i) costs and expenses relating to the
continuity of existence of the Managing General Partner and the Non-Managing
General Partners and their respective subsidiaries, including taxes, fees and
assessments associated therewith, and any and all costs, expenses or fees
payable to any director or trustee of the Managing General Partner, the
Non-Managing General Partners or such subsidiaries, (ii) costs and expenses
relating to any offer or registration of securities by the General Partner, the
Non-Managing General Partners or their respective subsidiaries and all
statements, reports, fees and expenses incidental thereto, including
underwriting discounts, selling commissions and placement fees applicable to any
such offer of securities; provided, however, that in the case of any such
registration of securities on behalf of one or more of the security holders of
the General Partner, the Non-Managing General Partners or their respective
subsidiaries, REIT Expenses shall not include underwriting discounts or selling
commissions), (iii) costs and expenses associated with the preparation and
filing of any periodic reports by the Managing General Partner, the Non-Managing
General Partners or their respective subsidiaries under federal, state or local
laws or regulations, including tax returns and filings with the SEC and any
stock exchanges on which the Shares are listed, (iv) costs and expenses
associated with compliance by the Managing General Partner, the Non-Managing
General Partners or their respective subsidiaries with laws, rules and
regulations promulgated by any regulatory body, including the SEC, (v) costs and
expenses associated with any 401(k) Plan, incentive plan, bonus plan or other
plan providing for compensation for the employees of the Managing General
Partner, the Non-Managing General Partners or their respective subsidiaries, and
(vi) all operating, administrative and other costs incurred by the Managing
General Partner, the Non-Managing General Partners or their respective
subsidiaries (including attorney's and accountant's fees, income and franchise
taxes and salaries paid to officers of the Managing General Partner, the
Non-Managing General Partners or their respective subsidiaries, but excluding
costs of any repurchase by the General Partners of any of their securities);
provided, however that amounts described herein shall be considered REIT
Expenses hereunder only if and to the extent during the fiscal year in question
the aggregate amount of such expenses for such fiscal year and all prior fiscal
years exceeds the aggregate of (a) all amounts theretofore distributed or
distributable to the Managing General Partner or a Non-Managing General Partner
by any wholly-owned
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subsidiary thereof and (b) all amounts theretofore paid to the Managing General
Partner or a Non-Managing General Partner pursuant to Section 7.1 hereof.
"REIT Requirements" shall mean all actions or omissions as may be
necessary (including making appropriate distributions from time to time) to
permit each of the Managing General Partner, the Non-Managing General Partners
and, where applicable, their respective subsidiaries to qualify or continue to
qualify as a real estate investment trust within the meaning of Section 856 et
seq. of the Code, as such provisions may be amended from time to time, or the
corresponding provisions of succeeding law.
"Related Issues" shall mean, with respect to a class or series of
Preferred Units, the class or series of Preferred Shares the sale of which
provided a General Partner with the proceeds to contribute to the Partnership in
exchange for such Preferred Units.
"Required Funds" shall have the meaning set forth in Section 4.3(a)
hereof.
"Rights" shall have the meaning set forth in Section 11.1 hereof.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares" shall mean the shares of Common Stock, par value $0.0001 per
share, of the Managing General Partner.
"Simons" shall mean Melvin Simon, Herbert Simon and David Simon, other
members of the Immediate Family of any of the foregoing, any other lineal
descendants of any of the foregoing, any trusts established for the benefit of
any of the foregoing, and any Entity Controlled by any one or more of the
foregoing.
"SPG Realty" shall mean SPG Realty Consultants, Inc.
"SPG Properties" shall mean SPG Properties, Inc.
"SD Property" shall mean SD Property Group, Inc.
"SRC Partnership" shall mean SPG Realty Consultants, L.P., a Delaware
limited partnership.
"SRC Partnership Units" shall mean interests in the SRC Partnership,
each of which is paired with a Partnership Unit.
"Subsidiary Entity" shall mean any Entity in which the Partnership owns
a direct or indirect equity interest.
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"Subsidiary Partnership" shall mean any partnership in which the
Partnership owns a direct or indirect equity interest.
"Substituted Limited Partner" shall have the meaning set forth in the
Act.
"Tax Matters Partner" shall have the meaning set forth in Section 6.7
hereof.
"Third Party" or "Third Parties" shall mean a Person or Persons who is
or are neither a Partner or Partners nor an Affiliate or Affiliates of a Partner
or Partners.
"Third Party Financing" shall mean financing or refinancing obtained
from a Third Party by the Partnership.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Shares are listed or admitted to trading is
open for the transaction of business or, if the Shares are not listed or
admitted to trading on any national securities exchange, shall mean any day
other than a Saturday, a Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to
close.
"Transfer" shall mean any assignment, sale, transfer, conveyance or
other disposition or act of alienation (other than a Pledge), whether voluntary
or involuntary or by operation of law.
1.2 Exhibit. Etc. References in this Agreement to an "Exhibit" are,
unless otherwise specified, to one of the Exhibits attached to this Agreement,
and references in this Agreement to an "Article" or a "Section " are, unless
otherwise specified, to one of the Articles or Sections of this Agreement. Each
Exhibit attached hereto and referred to herein is hereby incorporated herein by
reference.
ARTICLE II
Continuation of Partnership
2.1 Continuation. The parties hereto do hereby agree to continue the
Partnership as a limited partnership pursuant to the provisions of the Act, and
all other pertinent laws of the State of Delaware, for the purposes and upon the
terms and conditions hereinafter set forth. The Partners agree that the rights
and liabilities of the Partners shall be as provided in the Act except as
otherwise herein expressly provided. Promptly upon the execution and delivery of
this Agreement, the Managing General Partner shall cause each notice,
instrument, document or certificate as may be required by applicable law, and
which may be necessary to enable the Partnership to continue to conduct its
business, and to own its properties, under the Partnership name to be filed or
recorded in all appropriate public offices. Upon request of the Managing General
Partner, the Partners shall execute any assumed or fictitious name certificate
or certificates required
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by law to be filed in connection with the Partnership. The Managing General
Partner shall properly cause the execution and delivery of such additional
documents and shall perform such additional acts consistent with the terms of
this Agreement as may be necessary to comply with the requirements of law for
the continued operation of a limited partnership under the laws of the State of
Delaware (it being understood that the Managing General Partner shall be
required to provide the General Partners and Limited Partners with copies of any
amended Certificates of Limited Partnership required to be filed under such laws
only upon request) and for the continued operation of a limited partnership in
each other jurisdiction in which the Partnership shall conduct business.
2.2 Name. The name of the Partnership is Simon Property Group, L.P.,
and all business of the Partnership shall be conducted under the name of Simon
Property Group, L.P. or such other name as the Managing General Partner may
select; provided, however, that the Managing General Partner may not choose the
name (or any derivative thereof) of any Limited Partner (other than the names
"DeBartolo" or "Simon") without the prior written consent of such Limited
Partner. All transactions of the Partnership, to the extent permitted by
applicable law, shall be carried on and completed in such name (it being
understood that the Partnership may adopt assumed or fictitious names in certain
jurisdictions).
2.3 Character of the Business. The purpose of the Partnership is and
shall be to acquire, hold, own, develop, redevelop, construct, reconstruct,
alter, improve, maintain, operate, sell, lease, Transfer, encumber, convey,
exchange and otherwise dispose of or deal with the Properties and any other real
and personal property of all kinds; to undertake such other activities as may be
necessary, advisable, desirable or convenient to the business of the
Partnership; and to engage in such other ancillary activities as shall be
necessary or desirable to effectuate the foregoing purposes. The Partnership
shall have all powers necessary or desirable to accomplish the purposes
enumerated. In connection with the foregoing, but subject to all of the terms,
covenants, conditions and limitations contained in this Agreement and any other
agreement entered into by the Partnership, the Partnership shall have full power
and authority to enter into, perform and carry out contracts of any kind, to
borrow or lend money and to issue evidences of indebtedness, whether or not
secured by mortgage, trust deed, pledge or other Lien and, directly or
indirectly, to acquire and construct additional Properties necessary or useful
in connection with its business.
2.4 Location of the Principal Place of Business. The location of the
principal place of business of the Partnership shall be at 115 West Washington
Street, Indianapolis, Indiana 46204 or such other location as shall be selected
from time to time by the Managing General Partner in its sole discretion;
provided, however, that the Managing General Partner shall promptly notify the
Partners of any change in the location of the principal place of business of the
Partnership.
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2.5 Registered Agent and Registered Office. The Registered Agent of the
Partnership shall be The Prentice Hall Corporation System, Inc. or such other
Person as the Managing General Partner may select in its sole discretion. The
Registered Office of the Partnership in the State of Delaware shall be c/o
Prentice-Hall Corporation System, Inc., 32 Lockerman Square, Suite L-100, Dover,
DE 19901, or such other location as the Managing General Partner may select in
its sole and absolute discretion. The Managing General Partner shall promptly
notify the Partners of any change in the Registered Agent or Registered Office
of the Partnership.
ARTICLE III
Term
3.1 Commencement. The Partnership commenced business as a limited
partnership on November 18, 1993 upon the filing of the Certificate with the
Secretary of State of the State of Delaware.
3.2 Dissolution. The Partnership shall continue until dissolved and
terminated upon the earlier of (i) December 31, 2096, or (ii) the earliest to
occur of the following events:
(a) the dissolution, termination, withdrawal, retirement or
Bankruptcy of a General Partner unless the Partnership is continued as provided
in Section 9.1 hereof;
(b) the election to dissolve the Partnership made in writing by the
Managing General Partner, but only if the consent required by Section 7.3 and
the consent of the Non-Managing General Partners are obtained;
(c) the sale or other disposition of all or substantially all the
assets of the Partnership; or
(d) dissolution required by operation of law.
ARTICLE IV
Contributions to Capital
4.1 General Partner Capital Contributions.
(a) Simultaneously with the execution and delivery hereof, the
Managing General Partner is contributing to the Partnership substantially all of
its assets and liabilities in exchange for a managing general partnership
interest in the Partnership and admission to the Partnership as a Limited
Partner with the number of Units set forth on Exhibit A. The Partnership may
direct the transfer of certain of such assets and/or liabilities to one or more
of its subsidiaries.
(b) The Managing General Partner shall contribute to the capital of
the Partnership, in exchange for Units as provided in Section 4.3(b) hereof, the
proceeds of the sale of any Shares.
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(c) All transfer, stamp or similar taxes payable upon any
contribution provided for in this Section 4.1 shall be paid by the Partnership.
4.2 Limited Partner Capital Contributions. Except as expressly provided
in Sections 4.3, 4.4, 4.5 and 4.8 below, no Partner may make, and no Partner
shall have the obligation to make, additional contributions to the capital of
the Partnership without the consent of the General Partners.
4.3 Additional Funds.
(a) The Partnership may obtain funds ("Required Funds") which it
considers necessary to meet the needs, obligations and requirements of the
Partnership, or to maintain adequate working capital or to repay Partnership
indebtedness, and to carry out the Partnership's purposes, from the proceeds of
Third Party Financing or Affiliate Financing, in each case pursuant to such
terms, provisions and conditions and in such manner (including the engagement of
brokers and/or investment bankers to assist in providing such financing) and
amounts as the Managing General Partner and as the Non-Managing General Partners
shall determine to be in the best interests of the Partnership, subject to the
terms and conditions of this Agreement. Any and all funds required or expended,
directly or indirectly, by the Partnership for capital expenditures may be
obtained or replenished through Partnership borrowings. Any Third Party
Financing or Affiliate Financing obtained by the General Partners for and on
behalf of the Partnership may be convertible in whole or in part into Additional
Units (to be issued in accordance with Section 9.4 hereof), may be unsecured,
may be secured by mortgage(s) or deed(s) of trust and/or assignments on or in
respect of all or any portion of the assets of the Partnership or any other
security made available by the Partnership, may include or be obtained through
the public or private placement of debt and/or other instruments, domestic and
foreign may include provision for the option to acquire Additional Units (to be
issued in accordance with Section 9.4 hereof), and may include the acquisition
of or provision for interest rate swaps, credit enhancers and/or other
transactions or items in respect of such Third Party Financing or Affiliate
Financing; provided, however, that in no event may the Partnership obtain any
Affiliate Financing or Third Party Financing that is recourse to any Partner or
any Affiliate, partner, shareholder, beneficiary, principal officer or director
of any Partner without the consent of the affected Partner and any other Person
or Persons to whom such recourse may be had.
(b) To the extent the Partnership does not borrow all of the
Required Funds (and whether or not the Partnership is able to borrow all or part
of the Required Funds), the Managing General Partner or any of the Non-Managing
General Partners (or an Affiliate thereof) (i) may itself borrow such Required
Funds, in which case the Managing General Partner or such Non-Managing General
Partner shall lend such Required Funds to the Partnership
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on the same economic terms and otherwise on substantially identical terms, or
(ii) may raise such Required Funds in any other manner, in which case, unless
such Required Funds are raised by the Managing General Partner through the sale
of Preferred Shares, the Managing General Partner or such Non-Managing General
Partner shall contribute to the Partnership as an additional Capital
Contribution the amount of the Required Funds so raised ("Contributed Funds")
(hereinafter, each date on which the Managing General Partner or the
Non-Managing General Partners so contributes Contributed Funds pursuant to this
Section 4.3(b) is referred to as an "Adjustment Date"). Any Required Funds
raised from the sale of Preferred Shares shall either be contributed to the
Partnership as Contributed Funds or loaned to the Partnership pursuant to
Section 4.3(c) below. In the event the Managing General Partner or a
Non-Managing General Partner advances Required Funds to the Partnership pursuant
to this Section 4.3(b) as Contributed Funds, then the Partnership shall assume
and pay (or reflect on its books as additional Contributed Funds) the expenses
(including any applicable underwriting discounts) incurred by the Managing
General Partner or a Non-Managing General Partner (or such Affiliate) in
connection with raising such Required Funds through a public offering of its
securities or otherwise. If the Managing General Partner advances Required Funds
to the Partnership as Contributed Funds pursuant to this Section 4.3(b) from any
offering or sale of Shares (including, without limitation, any issuance of
Shares pursuant to the exercise of options, warrants, convertible securities or
similar rights to acquire Shares), the Partnership shall issue additional
Partnership Units to the Managing General Partner to reflect its contribution of
the Contributed Funds equal in number to such number of Shares issued in such
offering or sale.
(c) In the event any General Partner contributes to the Partnership
any Required Funds obtained from the sale of Preferred Shares ("Preferred
Contributed Funds"), then the Partnership shall assume and pay the expenses
(including any applicable underwriter discounts) incurred by the Managing
General Partner in connection with raising such Required Funds. In addition, the
Managing General Partner shall be issued Preferred Units of a designated class
or series to reflect its contribution of such funds. Each class or series of
Preferred Units so issued shall be designated by the Managing General Partner to
identify such class or series with the class or series of Preferred Shares which
constitutes the Related Issue. Each class or series of Preferred Units shall be
described in a written document (the "Preferred Unit Designation") attached as
Exhibit B that shall set forth, in sufficient detail, the economic rights,
including dividend, redemption and conversion rights and sinking fund
provisions, of the class or series of Preferred Units and the Related Issue. The
number of Preferred Units of a class or series shall be equal to the number of
shares of the Related Issue sold. The Preferred Unit Designation shall provide
for such terms for the class or series of preferred Units that shall entitle the
Managing General Partner to substantially the same economic rights as the
holders of the Related Issue. Specifically, the Managing General Partner shall
receive
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distributions on the class or series of Preferred Units pursuant to Section 6.2
equal to the aggregate dividends payable on the Related Issue at the times such
dividends are paid (the "Preferred Distribution Requirement"). The Partnership
shall redeem the class or series of Preferred Units for a redemption price per
Preferred Unit equal to the redemption price per share of the Related Issue,
exclusive of any accrued unpaid dividends (the "Preferred Redemption Price")
upon the redemption of any shares of the Related Issue. Each class or series of
Preferred Units shall also be converted into additional Partnership Units at the
time and on such economic terms and conditions as the Related Issue is converted
into Shares. Upon the issuance of any class or series of Preferred Units
pursuant to this Section 4.3(c), the Managing General Partner shall provide the
Limited Partners with a copy of the Preferred Unit Designation relating to such
class or series. The Managing General Partner shall have the right, in lieu of
contributing to the Partnership proceeds from the sale of Preferred Shares as
Preferred Contributed Funds, to lend such proceeds to the Partnership. Any such
loan shall be on the same terms and conditions as the Related Issue except that
dividends payable on the Related Issue shall be payable by the Partnership to
the Managing General Partner as interest, any mandatory redemptions shall take
the form of principal payments and no Preferred Units shall be issued to the
Managing General Partner. If any such loan is made, the Partnership shall
promptly reimburse the Managing General Partner for all expenses (including any
applicable underwriter discounts) incurred by the Managing General Partner in
connection with raising the Required Funds. Any such loan made by the Managing
General Partner to the Partnership may at any time be contributed to the
Partnership as Preferred Contributed Funds in exchange for Preferred Units as
above provided; and if the Related Issue is by its terms convertible into
Shares, such loan shall be so contributed to the Partnership prior to the
effectuation of such conversion.
4.4 Redemption; Change in Number of Shares Outstanding.
(a) If the Managing General Partner shall redeem any of its
outstanding Shares, the Partnership shall concurrently therewith redeem an equal
number of Units held by the Managing General Partner for the same price as paid
by the Managing General Partner for the redemption of such Shares.
(b) In the event of any change in the outstanding number of Shares
by reason of any share dividend, split, reverse split, recapitalization, merger,
consolidation or combination, the number of Units held by each Partner (or
assignee) shall be proportionately adjusted such that, to the extent possible,
one Unit remains the equivalent of one Share without dilution.
4.5 Stock Option Plan; Dividend Reinvestment Plan. (a) If at any time a
stock option granted by the Partnership in connection with a stock option plan
is exercised in accordance with its terms, and the Partnership chooses not to
acquire any or
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all of the stock required to satisfy such option through open market purchases,
the Managing General Partner shall, as soon as practicable after such exercise,
sell to the Partnership for use in satisfying such stock option, at a purchase
price equal to the Current Per Share Market Price on the date such stock option
is exercised, the number of newly issued Shares for which such option is
exercised (or, if such stock option is to be satisfied in part through open
market purchases, the remaining number of newly issued Shares) and the Managing
General Partner shall contribute to the capital of the Partnership, in exchange
for additional Partnership Units, an amount equal to the price paid to the
Managing General Partner by the Partnership in connection with the Partnership's
purchase of newly issued Shares upon exercise of such stock option. The number
of Partnership Units to be so issued shall be determined by dividing the amount
of such capital contribution by the Deemed Partnership Unit Value, computed as
of the Trading Day immediately preceding the date of such capital contribution.
The Managing General Partner shall promptly give each Limited Partner written
notice of the number of Partnership Units so issued. The Partnership shall
retain the exercise or purchase price paid by the holder of such option for the
Shares such holder is entitled to receive upon such exercise.
(b) All amounts received by the Managing General Partner in respect
of its dividend reinvestment plan, if any, either (a) shall be utilized by the
Managing General Partner to effect open market purchases of Paired Shares, or
(b) if the Managing General Partner elects instead to issue new shares with
respect to such amounts, shall be contributed by the Managing General Partner to
the Partnership in exchange for additional Partnership Units. The number of
Partnership Units so issued shall be determined by dividing the amount of funds
so contributed by the Deemed Partnership Unit Value, computed as of the Trading
Day immediately preceding the date such funds are contributed. The Managing
General Partner shall promptly give each Limited Partner written notice of the
number of Partnership Units so issued.
4.6 No Third Party Beneficiary. No creditor or other Third Party having
dealings with the Partnership shall have the right to enforce the right or
obligation of any Partner to make Capital Contributions or to pursue any other
right or remedy hereunder or at law or in equity, it being understood and agreed
that the provisions of this Agreement shall be solely for the benefit of, and
may be enforced solely by, the parties hereto and their respective successors
and assigns. None of the rights or obligations of the Partners herein set forth
to make Capital Contributions to the Partnership shall be deemed an asset of the
Partnership for any purpose by any creditor or other third party, nor may such
rights or obligations be sold, transferred or assigned by the Partnership or
pledged or encumbered by the Partnership to secure any debt or other obligation
of the Partnership or of any of the Partners.
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4.7 No Interest; No Return. No Partner shall be entitled to interest
on its Capital Contribution or on such Partner's Capital Account. Except as
provided herein or by law, no Partner shall have any right to withdraw any part
of its Capital Account or to demand or receive the return of its Capital
Contribution from the Partnership.
4.8 Capital Accounts.
(a) The Partnership shall establish and maintain a separate
capital account ("Capital Account") for each Partner, including a Partner who
shall pursuant to the provisions hereof acquire a Partnership Interest, which
Capital Account shall be:
(1) credited with the amount of cash contributed by such
Partner to the capital of the Partnership; the initial Gross Asset Value (net of
liabilities secured by such contributed property that the Partnership assumes or
takes subject to) of any other property contributed by such Partner to the
capital of the Partnership; such Partner's distributive share of Profits; and
any other items in the nature of income or gain that are allocated to such
Partner pursuant to Section 6.1 hereof, but excluding tax items described in
Regulations Section 1.704-1(b)(4)(i); and
(2) debited with the amount of cash distributed to such
Partner pursuant to the provisions of this Agreement; the Gross Asset Value (net
of liabilities secured by such distributed property that such Partner assumes or
takes subject to) of any Partnership property distributed to such Partner
pursuant to any provision of this Agreement; the amount of unsecured liabilities
of such Partner assumed by the Partnership; such Partner's distributive share of
Losses; in the case of the General Partners, payments of REIT Expenses by the
Partnership; and any other items in the nature of expenses or losses that are
allocated to such Partner pursuant to Section 6.1 hereof, but excluding tax
items described in Regulations Section 1.704-1(b)(4)(i).
In the event that any or all of a Partner's Partnership Units or
Preferred Units are transferred within the meaning of Regulations Section
1.704-l(b)(2)(iv)(l), the transferee shall succeed to the Capital Account of the
transferor to the extent that it relates to the Units so transferred.
In the event that the Gross Asset Values of Partnership assets are
adjusted pursuant to Section 4.8(b)(ii) hereof, the Capital Accounts of the
Partners shall be adjusted to reflect the aggregate net adjustments as if the
Partnership sold all of its properties for their fair market values and
recognized gain or loss for federal income tax purposes equal to the amount of
such aggregate net adjustment.
A Limited Partner shall be liable unconditionally to the
Partnership for all or a portion of any deficit in its Capital Account if it so
elects to be liable for such deficit or portion
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thereof. Such election may be for either a limited or unlimited amount and may
be amended or withdrawn at any time. The election, and any amendment thereof,
shall be made by written notice to the Managing General Partner (and the
Managing General Partner shall promptly upon receipt deliver copies thereof to
the other Partners) stating that the Limited Partner elects to be liable, and
specifying the limitations, if any, on the maximum amount or duration of such
liability. Said election, or amendment thereof, shall be effective only from the
date 25 days after written notice thereof is received by the Managing General
Partner, and shall terminate upon the date, if any, specified therein as a
termination date or upon delivery to the Managing General Partner of a
subsequent written notice terminating such election. A termination of any such
election, or an amendment reducing the Limited Partner's maximum liability
thereunder or the duration thereof, shall not be effective to avoid
responsibility for any loss incurred prior to such termination or the effective
date of such amendment. Except as provided in this Section 4.8 or as required by
law, no Limited Partner shall be liable for any deficit in its Capital Account
or be obligated to return any distributions of any kind received from the
Partnership.
The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with Section 1.704-1(b) of the Regulations, and shall be interpreted and applied
as provided in the Regulations.
(b) The term "Gross Asset Value" or "Gross Asset Values" means,
with respect to any asset of the Partnership, such asset's adjusted basis for
federal income tax purposes, except as follows:
(i) the initial Gross Asset Value of any asset contributed
by a Partner to the Partnership shall be the gross fair market value of such
asset as reasonably determined by the Managing General Partner;
(ii) the Gross Asset Values of all Partnership assets shall
be adjusted to equal their respective gross fair market values, as reasonably
determined by the General Partner, immediately prior to the following events:
(A) a Capital Contribution (other than a de minimis
Capital Contribution, within the meaning of Section l.704-l(b)(2)(iv)(f)(5)(i)
of the Regulations) to the Partnership by a new or existing Partner as
consideration for Partnership Units;
(B) the distribution by the Partnership to a Partner
of more than a de minimis amount (within the meaning of Section
1.704-1(b)(2)(iv)(f)(5)(ii) of the Regulations) of Partnership property as
consideration for the redemption of Partnership Units; and
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(C) the liquidation of the Partnership within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations; and
(iii) the Gross Asset Values of Partnership assets
distributed to any Partner shall be the gross fair market values of such assets
as reasonably determined by the Managing General Partner as of the date of
distribution. At all times, Gross Asset Values shall be adjusted by any
Depreciation taken into account with respect to the Partnership's assets for
purposes of computing Profits and Losses. Any adjustment to the Gross Asset
Values of Partnership property shall require an adjustment to the Partners'
Capital Accounts as described in Section 4.8(a) above.
ARTICLE V
Representations, Warranties and Acknowledgment
5.1 Representations and Warranties by Managing General Partner. The
Managing General Partner represents and warrants to the Limited Partners, the
other General Partners and to the Partnership that (i) it is a corporation duly
formed, validly existing and in good standing under the laws of its state of
incorporation, with full right, corporate power and authority to fulfill all of
its obligations hereunder or as contemplated herein; (ii) all transactions
contemplated by this Agreement to be performed by it have been duly authorized
by all necessary action; (iii) this Agreement has been duly executed and
delivered by and is the legal, valid and binding obligation of the Managing
General Partner and is enforceable against it in accordance with its terms,
except as such enforcement may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other laws of
general application affecting the rights and remedies of creditors and (b)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law); (iv) no authorization,
approval, consent or order of any court or governmental authority or agency or
any other Entity is required in connection with the execution and delivery of
this Agreement by the Managing General Partner, except as may have been received
prior to the date of this Agreement; (v) the execution and delivery of this
Agreement by the Managing General Partner and the consummation of the
transactions contemplated hereby will not conflict with or constitute a breach
or violation of, or a default under, any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or other
instrument or agreement to which either the Managing General Partner or the
Partnership is a party; and (vi) the Partnership Units, upon payment of the
consideration therefore pursuant to this Agreement, will be validly issued,
fully paid and, except as otherwise provided in accordance with applicable law,
non-assessable.
5.2 Representations and Warranties by Non-Managing General Partners.
Each of the Non-Managing General Partners represents and warrants to the Limited
Partners, the other General Partners and to the Partnership that (i) it is a
corporation duly formed, validly
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existing and in good standing under the laws of its state of incorporation, with
full right, corporate power and authority to fulfill all of its obligations
hereunder or as contemplated herein; (ii) all transactions contemplated by this
Agreement to be performed by it have been duly authorized by all necessary
action; (iii) this Agreement has been duly executed and delivered by and is the
legal, valid and binding obligation of the Non-Managing General Partner and is
enforceable against it in accordance with its terms, except as such enforcement
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other laws of general application affecting
the rights and remedies of creditors and (b) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law); (iv) no authorization, approval, consent or order of any court or
governmental authority or agency or any other Entity is required in connection
with the execution and delivery of this Agreement by the Non-Managing General
Partner, except as may have been received prior to the date of this Agreement;
and (v) the execution and delivery of this Agreement by the Non-Managing General
Partner and the consummation of the transactions contemplated hereby will not
conflict with or constitute a breach or violation of, or default under, any
contract, indenture, mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement to which the Non-Managing
General Partner is a party.
5.4 Representations and Warranties by the Limited Partners. Each
Limited Partner, for itself only, represents and warrants to the General
Partners, the other Limited Partners and the Partnership that (i) all
transactions contemplated by this Agreement to be performed by such Limited
Partner have been duly authorized by all necessary action; and (ii) this
Agreement is binding upon, and enforceable against, such Limited Partner in
accordance with its terms, except as such enforcement may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other laws of general application affecting the rights and remedies
of creditors and (b) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
5.5 Acknowledgment by Each Partner. Each Partner hereby acknowledges
that no representations as to potential profit, cash flows or yield, if any, in
respect of the Partnership or any one or more or all of the Projects owned,
directly or indirectly, by the Partnership have been made to it by any other
Partner or its Affiliates or any employee or representative of any other Partner
or its Affiliates, and that projections and any other information, including,
without limitation, financial and descriptive information and documentation,
which may have been in any manner submitted to such Partner shall not constitute
a representation or warranty, express or implied.
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ARTICLE VI
Allocations, Distributions and Other Tax and Accounting Matters
6.1 Allocations.
(a) For the purpose of this Agreement, the terms "Profits" and
"Losses" mean, respectively, for each Partnership Fiscal Year or other period,
the Partnership's taxable income or loss for such Partnership Fiscal Year or
other period, 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)(l) of the Code shall be included in
taxable income or loss), adjusted as follows:
(1) any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits or Losses
pursuant to this Section 6.1(a) shall be added to such taxable income or loss;
(2) in lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such Partnership Fiscal Year
or other period;
(3) any items that are specially allocated pursuant to Section
6.1(d) hereof shall not be taken into account in computing Profits or Losses;
and
(4) any expenditures of the Partnership described in Section
705(a)(2)(B) of the Code (or treated as such under Regulation Section
1.704-l(b)(2)(iv)(i)) and not otherwise taken into account in computing Profits
or Losses pursuant to this Section 6.1(a) shall be deducted in calculating such
taxable income or loss.
(b) Except as otherwise provided in Section 6.1(d) hereof and this
Section 6.1(b), the Profits and Losses of the Partnership (and each item
thereof) for each Partnership Fiscal Year shall be allocated among the Partners
in the following order of priority:
(1) First, Profits shall be allocated to the holder of Preferred
Units in an amount equal to the excess of (A) the amount of Net Operating Cash
Flow distributed to such holder pursuant to Sections 6.2(b)(i) and (ii) and
Section 6.2(c)(but only to the extent of the Preferred Distribution Requirement
and Preferred Distribution Shortfalls) for the current and all prior Partnership
Fiscal Years over (B) the amount of Profits previously allocated to such holder
pursuant to this subparagraph (1).
(2) Second, for any Partnership Fiscal Year ending on or after a
date on which Preferred Units are redeemed, Profits (or Losses) shall be
allocated to the holder of such Preferred Units in an amount equal to the excess
(or deficit) of the sum of the
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applicable Preferred Redemption Amounts for the Preferred Units that have been
or are being redeemed during such Partnership Fiscal Year over the Preferred
Unit Issue Price of such Preferred Units. In addition, in the event that the
Partnership is liquidated pursuant to Article VIII, the allocation described
above shall be made to the holder of Preferred Units with respect to all
Preferred Units then outstanding.
(3) Third, any remaining Profits and Losses shall be allocated
among the Partners in accordance with their proportionate ownership of
Partnership Units except as otherwise required by the Regulations.
(4) Notwithstanding subparagraphs (1), (2) and (3), Profits and
Losses from a Liquidation Transaction shall be allocated as follows:
First, Profits (or Losses) shall be allocated to the holder
of Preferred Units in an amount equal to the excess (or deficit) of the sum of
the applicable Preferred Redemption Amounts of the Preferred Units which have
been or will be redeemed with the proceeds of the Liquidation Transaction over
the Preferred Unit Issue Price of such Preferred Units;
Second, Profits (or Losses) shall be allocated among the
Partners so that the Capital Accounts of the Partners (excluding from the
Capital Account of any Partner the amount attributable to its Preferred Units)
are proportional to the number of Partnership Units held by each Partner; and
Third, any remaining Profits and Losses shall be allocated
among the Partners in accordance with their proportionate ownership of
Partnership Units.
(c) For the purpose of Section 6.1(b) hereof, gain or loss
resulting from any disposition of Partnership property shall be computed by
reference to the Gross Asset Value of the property disposed of, notwithstanding
that the adjusted tax basis of such property for federal income tax purposes
differs from its Gross Asset Value.
(d) Notwithstanding the foregoing provisions of this Section 6.1,
the following provisions shall apply:
(1) A Partner shall not receive an allocation of any Partnership
deduction that would result in total loss allocations attributable to
"Nonrecourse Liabilities" (as defined in Regulations Section 1.704-2(b)(3)) in
excess of such Partner's share of Minimum Gain (as determined under Regulations
Section 1.704-2(g)). The term "Minimum Gain" means an amount determined in
accordance with Regulations Section 1.704-2(d) by computing, with respect to
each Nonrecourse Liability of the Partnership, the amount of gain, if any, that
the Partnership would realize if it disposed of the property subject to such
liability for no
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consideration other than full satisfaction thereof, and by then aggregating the
amounts so computed. If the Partnership makes a distribution allocable to the
proceeds of a Nonrecourse Liability, in accordance with Regulation Section
1.704-2(h), the distribution will be treated as allocable to an increase in
Partnership Minimum Gain to the extent the increase results from encumbering
Partnership property with aggregate Nonrecourse Liabilities that exceeds the
property's adjusted tax basis. If there is a net decrease in Partnership Minimum
Gain for a Partnership Fiscal Year, in accordance with Regulations Section
1.704-2(f) and the exceptions contained therein, the Partners shall be allocated
items of Partnership income and gain for such Partnership Fiscal Year (and, if
necessary, for subsequent Partnership Fiscal Years) equal to the Partners'
respective shares of the net decrease in Minimum Gain within the meaning of
Regulations Section l.704-2(g)(2) (the "Minimum Gain Chargeback"). The items to
be allocated pursuant to this Section 6.1(d)(1) shall be determined in
accordance with Regulations Section 1.704-2(f) and (j).
(2) Any item of "Partner Nonrecourse Deduction" (as defined in
Regulations Section 1.704-2(i)) with respect to a "Partner Nonrecourse Debt" (as
defined in Regulations Section l.704-2(b)(4)) shall be allocated to the Partner
or Partners who bear the economic risk of loss for such Partner Nonrecourse Debt
in accordance with Regulations Section l.704-2(i)(l). If the Partnership makes a
distribution allocable to the proceeds of a Partner Nonrecourse Debt, in
accordance with Regulation Section l.704-2(i)(6) the distribution will be
treated as allocable to an increase in Partner Minimum Gain to the extent the
increase results from encumbering Partnership property with aggregate Partner
Nonrecourse Debt that exceeds the property's adjusted tax basis. Subject to
Section 6.1(d)(1) hereof, but notwithstanding any other provision of this
Agreement, in the event that there is a net decrease in Minimum Gain
attributable to a Partner Nonrecourse Debt (such Minimum Gain being hereinafter
referred to as "Partner Nonrecourse Debt Minimum Gain") for a Partnership Fiscal
Year, then after taking into account allocations pursuant to Section 6.1(d)(1)
hereof, but before any other allocations are made for such taxable year, and
subject to the exceptions set forth in Regulations Section 1.704-2(i)(4), each
Partner with a share of Partner Non-recourse Debt Minimum Gain at the beginning
of such Partnership Fiscal Year shall be allocated items of income and gain for
such Partnership Fiscal Year (and, if necessary, for subsequent Partnership
Fiscal Years) equal to such Partner's share of the net decrease in Partner
Nonrecourse Debt Minimum Gain as determined in a manner consistent with the
provisions of Regulations Section l.704-2(g)(2). The items to be allocated
pursuant to this Section 6.1(d)(2) shall be determined in accordance with
Regulations Section 1.704-2(i)(4) and (j).
(3) Pursuant to Regulations Section 1.752-3(a)(3), for the purpose
of determining each Partner's share of excess nonrecourse liabilities of the
Partnership, and solely for such purpose, each Partner's interest in Partnership
profits is hereby
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specified to be the quotient of (i) the number of Partnership Units then held by
such Partner, and (ii) the aggregate amount of Partnership Units then
outstanding.
(4) No Limited Partner shall be allocated any item of deduction or
loss of the Partnership if such allocation would cause such Limited Partner's
Capital Account to become negative by more than the sum of (i) any amount such
Limited Partner is obligated to restore upon liquidation of the Partnership,
plus (ii) such Limited Partner's share of the Partnership's Minimum Gain and
Partner Nonrecourse Debt Minimum Gain. An item of deduction or loss that cannot
be allocated to a Limited Partner pursuant to this Section 6.1(d)(4) shall be
allocated to the General Partners in accordance with the number of Partnership
Units held by each General Partner. For this purpose, in determining the Capital
Account balance of such Limited Partner, the items described in Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) shall be taken into account. In the
event that (A) any Limited Partner unexpectedly receives any adjustment,
allocation, or distribution described in Regulations Sections
1.704-l(b)(2)(ii)(d)(4), (5), or (6), and (B) such adjustment, allocation, or
distribution causes or increases a deficit balance (net of amounts which such
Limited Partner is obligated to restore or deemed obligated to restore under
Regulations Section 1.704-2(g)(l) and l.704-2(i)(5) and determined after taking
into account any adjustments, allocations, or distributions described in
Regulations Sections 1.704-l(b)(2)(ii)(d)(4), (5), or (6) that, as of the end of
the Partnership Fiscal Year, reasonably are expected to be made to such Limited
Partner) in such Limited Partner's Capital Account as of the end of the
Partnership Fiscal Year to which such adjustment, allocation, or distribution
relates, then items of Gross Income (consisting of a pro rata portion of each
item of Gross Income) for such Partnership Fiscal Year and each subsequent
Partnership Fiscal Year shall be allocated to such Limited Partner until such
deficit balance or increase in such deficit balance, as the case may be, has
been eliminated. In the event that this Section 6.1(d)(4) and Section 6.1(d)(1)
and/or (2) hereof apply, Section 6.1(d)(1) and/or (2) hereof shall be applied
prior to this Section 6.l(d)(4).
(5) The Regulatory Allocations shall be taken into account in
allocating other items of income, gain, loss, and deduction among the Partners
so that, to the extent possible, the cumulative net amount of allocations of
Partnership items under this Section 6.1 shall be equal to the net amount that
would have been allocated to each Partner if the Regulatory Allocations had not
been made. This Section 6.1(d)(5) 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 Section 6.1(d) (other than this Section
6.l(d)(5)).
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(e) In accordance with Sections 704(b) and 704(c) of the Code and
the Regulations thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for federal
income tax purposes, be allocated among the Partners on a property by property
basis so as to take account of any variation between the adjusted basis of such
property to the Partnership for federal income tax purposes and the initial
Gross Asset Value of such property. If the Gross Asset Value of any Partnership
property is adjusted as described in the definition of Gross Asset Value,
subsequent allocations of income, gains or losses from taxable sales or other
dispositions and deductions with respect to such asset shall take account of any
variation between the adjusted basis of such asset for federal income tax
purposes and the Gross Asset Value of such asset in the manner prescribed under
Sections 704(b) and 704(c) of the Code and the Regulations thereunder. In
furtherance of the foregoing, the Partnership shall employ the method prescribed
in Regulation S 1.704-3(b) (the "traditional method") or the equivalent
successor provision(s) of proposed, temporary or final Regulations. The
Partnership shall allocate items of income, gain, loss and deduction allocated
to it by a Subsidiary Entity to the Partner or Partners contributing the
interest or interests in such subsidiary Entity, so that, to the greatest extent
possible and consistent with the foregoing, such contributing Partner or
Partners are allocated the same amount and character of items of income, gain,
loss and deduction with respect to such Subsidiary Entity that they would have
been allocated had they contributed undivided interests in the assets owned by
such Subsidiary Entity to the Partnership in lieu of contributing the interest
or interests in the Subsidiary Entity to the Partnership.
(f) Notwithstanding anything to the contrary contained in this
Section 6.1, the allocation of Profits and Losses for any Partnership Fiscal
Year during which a Person acquires a Partnership Interest (other than upon
formation of the Partnership) pursuant to Section 4.3(b) or otherwise, shall
take into account the Partners' varying interests for such Partnership Fiscal
Year pursuant to any method permissible under Section 706 of the Code that is
selected by the Managing General Partner (notwithstanding any agreement between
the assignor and assignee of such Partnership Interest although the Managing
General Partner may recognize any such agreement), which method may take into
account the date on which the Transfer or an agreement to Transfer becomes
irrevocable pursuant to its terms, as determined by the Managing General
Partner; provided, that the allocation of Profits and Losses with respect to a
Partnership Unit acquired during a fiscal quarter of the Partnership shall be
appropriately adjusted in accordance with Section 6.2(c)(ii) below.
(g) 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 Partners in the same proportion that the depreciation and amortization
deductions
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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 Partners
who are allocated Affected Gain pursuant to clause (A) so that, to the extent
possible, the other Partners 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 Profits or Losses for such respective period.
(h) The Profits, Losses, gains, deductions and credits of the
Partnership (and all items thereof) for each Partnership Fiscal Year shall be
determined in accordance with the accounting method followed by the Partnership
for federal income tax purposes.
(i) Except as provided in Sections 6.1(e) and 6.1(g) hereof, for
federal income tax purposes, each item of income, gain, loss, or deduction shall
be allocated among the Partners in the same manner as its correlative item of
"book" income, gain, loss or deduction has been allocated pursuant to this
Section 6.1.
(j) To the extent permitted by Regulations Sections 1.704-2(h)(3)
and 1.704-2(i)(6), the Managing General Partner shall endeavor to treat
distributions as having been made from the proceeds of Nonrecourse Liabilities
or Partner Nonrecourse Debt only to the extent that such distributions would
cause or increase a deficit balance in any Partner's Capital Account that
exceeds the amount such Partner is otherwise obligated to restore (within the
meaning of Regulations Section 1.704-l(b)(2)(ii)(c)) as of the end of the
Partnership's taxable year in which the distribution occurs.
(k) If any Partner sells or otherwise disposes of any property,
directly or indirectly, to the Partnership, and as a result thereof, gain on a
subsequent disposition of such property by the Partnership is reduced pursuant
to Section 267(d) of the Code, then, to the extent permitted by applicable law,
gain for federal income tax purposes attributable to such subsequent disposition
shall first be allocated among the Partners other than the selling Partner in an
amount equal to such Partners' allocations of "book" gain on the property
pursuant to this Section 6.1, and any remaining gain for federal income tax
purposes shall be allocated to the selling Partner.
6.2 Distributions. (a) Except with respect to the liquidation of the
Partnership and subject to the priority set forth in Sections 6.2(b) and (c),
the Managing General Partner shall cause the Partnership to distribute all or a
portion of Net Operating Cash Flow to the Partners who are such on the relevant
Partnership Record Date from time to time as determined by the Managing General
Partner, but in any event not less frequently than quarterly, in such amounts as
the Managing General Partner shall
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determine in its sole discretion; provided, however, that, except as provided in
Sections 6.2(b) and (c) below, all such distributions shall be made pro rata in
accordance with the outstanding Partnership Units on the relevant Partnership
Record Date. In no event may a Limited Partner receive a distribution of Net
Operating Cash Flow with respect to a Partnership Unit that such Partner has
exchanged on or prior to the relevant Partnership Record Date for a Share,
pursuant to the Rights granted under Section 11.1 (a "Post-Exchange
Distribution"); rather, all such Post-Exchange Distributions shall be
distributed to the Managing General Partner.
(b) Except to the extent Net Operating Cash Flow is distributed
pursuant to Section 6.2(c), and except with respect to the liquidation of the
Partnership, distributions of Net Operating Cash Flow shall be made in the
following order of priority;
(i) First, to the extent that the amount of Net Operating
Cash Flow distributed to the holder of Preferred Units for any prior quarter was
less than the Preferred Distribution Requirement for such quarter, and has not
been subsequently distributed pursuant to this Section 6.2(b)(i) (a "Preferred
Distribution Shortfall"), Net Operating Cash Flow shall be distributed to the
holder of Preferred Units in an amount necessary to satisfy such Preferred
Distribution Shortfall for the current and all prior Partnership Fiscal Years.
In the event that the Net Operating Cash Flow distributed for a particular
quarter is less than the Preferred Distribution Shortfall, then all Net
Operating Cash Flow for the current quarter shall be distributed to the holder
of Preferred Units.
(ii) Second, Net Operating Cash Flow shall be distributed to
the holder of Preferred Units in an amount equal to the Preferred Distribution
Requirement for the then current quarter for each outstanding Preferred Unit. In
the event that the amount of Net Operating Cash Flow distributed for a
particular quarter pursuant to this subparagraph (b)(ii) is less than the
Preferred Distribution Requirement for such quarter, then all such Net Operating
Cash Flow for such quarter shall be distributed to the holder of Preferred
Units.
(iii) The balance of the Net Operating Cash Flow to be
distributed, if any, shall be distributed to holders of Partnership Units, in
proportion to their ownership of Partnership Units.
(c) (i) If in any quarter the Partnership redeems any outstanding
Preferred Units, unless and except to the extent that such redemption is
effected out of borrowed funds, Capital Contributions or other sources, Net
Operating Cash Flow shall be distributed to the Managing General Partner in an
amount equal to the applicable Preferred Redemption Amount for the Preferred
Units being redeemed before being distributed pursuant to Section 6.2(b).
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(ii) Notwithstanding anything to the contrary contained in
this Section 6.2, the distribution of Net Operating Cash Flow with respect to a
Partnership Unit acquired during a fiscal quarter of the Partnership shall be an
amount equal to the product of (i) the amount of Net Operating Cash Flow
otherwise distributable to a Partnership Unit held during such fiscal quarter
and (ii) (a) the number of days remaining in such fiscal quarter, determined as
of the date such Partnership Unit was acquired, divided by (b) the total number
of days in such fiscal quarter.
(d) Notwithstanding the provision of the first sentence of Section
6.2(a), (i) the Managing General Partner shall use its best efforts to cause the
Partnership to distribute sufficient amounts, in accordance with Section 6.2(a)
above, to enable the Managing General Partner and the Non-Managing General
Partners to pay shareholder dividends that will (A) satisfy the REIT
Requirements, and (B) avoid any federal income or excise tax liability of the
Managing General Partner or any of the Non-Managing General Partners; and (ii)
in the event of a Covered Sale which occurs on a date on or after August 9,
1996, and before but not including August 9, 2001, and which gives rise to a
special allocation of taxable income or gain to one or more Limited Partners
pursuant to Section 6.1(e), (A) the Managing General Partner shall cause the
Partnership to distribute to all of the Partners, pro rata in accordance with
ownership of Partnership Units, the Net Sale Proceeds therefrom up to an amount
sufficient to enable each such Limited Partner, from the share of such
distribution made to it, to pay in full any income tax liability, computed at
the maximum applicable federal and state statutory rates, with respect to the
income or gain so specially allocated and on the distribution required by this
Section 6.2(d) (or, if any such Limited Partner is a partnership or Subchapter S
corporation, to enable such Limited Partner to distribute sufficient amounts to
its equity owners to enable such owners to pay in full any income tax liability,
computed at the maximum applicable federal and state statutory rates, with
respect to their share of such taxable income or gain and such distributions)
and (B) if the amounts distributed to each such Limited Partner in accordance
with the preceding clause (A) are insufficient to enable it to pay in full such
income tax liabilities, the Managing General Partner shall cause the Partnership
to distribute sufficient funds from other sources to all of the Partners, pro
rata in accordance with ownership of Partnership Units, in an amount sufficient
to enable each such Limited Partner to pay in full such income tax liabilities
and any income tax liabilities of such Limited Partner(s) with respect to such
additional distribution. As used in this Section 6.2, the term "Covered Sale"
means a sale or other taxable disposition of any Property described on Exhibit
C.
6.3 Books of Account; Segregation of Funds
(a) At all times during the continuance of the Partnership, the
Managing General Partner shall maintain or cause
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to be maintained full, true, complete and correct books of account in accordance
with GAAP wherein shall be entered particulars of all monies, goods or effects
belonging to or owing to or by the Partnership, or paid, received, sold or
purchased in the course of the Partnership's business, and all of such other
transactions, matters and things relating to the business of the Partnership as
are usually entered in books of account kept by Persons engaged in a business of
a like kind and character. In addition, the Partnership shall keep all records
as required to be kept pursuant to the Act. The books and records of account
shall be kept at the principal office of the Partnership, and each Partner and
its representatives shall at all reasonable times have access to such books and
records and the right to inspect and copy the same.
(b) The Partnership shall not commingle its funds with those of any
other Person or Entity; funds and other assets of the Partnership shall be
separately identified and segregated; all of the Partnership's assets shall at
all times be held by or on behalf of the Partnership and, if held on behalf of
the Partnership by another Entity, shall at all times be kept identifiable (in
accordance with customary usages) as assets owned by the Partnership; and the
Partnership shall maintain its own separate bank accounts, payroll and books of
account. The foregoing provisions of this Section 6.3(b) shall not apply with
respect to funds or assets of any Subsidiary Entities of the Partnership.
6.4 Reports. Within ninety (90) days after the end of each Partnership
Fiscal Year, the Partnership shall cause to be prepared and transmitted to each
Partner an annual report of the Partnership relating to the previous Partnership
Fiscal Year containing a balance sheet as of the year then ended, a statement of
financial condition as of the year then ended, and statements of operations,
cash flow and Partnership equity for the year then ended, which annual
statements shall be prepared in accordance with GAAP and shall be audited by the
Accountants. The Partnership shall also cause to be prepared and transmitted to
each Partner within forty-five (45) days after the end of each of the first
three (3) quarters of each Partnership Fiscal Year a quarterly unaudited report
containing a balance sheet, a statement of the Partnership's financial condition
and statements of operations, cash flow and Partnership equity, in each case
relating to the fiscal quarter then just ended, and prepared in accordance with
GAAP. The Partnership shall further cause to be prepared and transmitted to the
Managing General Partner and the Non-Managing General Partners (i) such reports
and/or information as are necessary for each to fulfill its obligations under
the Securities Act of 1933, the Securities and Exchange Act of 1934 and the
applicable stock exchange rules, and under any other regulations to which such
Partners or the Partnership may be subject, and (ii) such other reports and/or
information as are necessary for each of the Managing General Partner and the
Non-Managing General Partners to determine and maintain its qualification as a
REIT under the REIT Requirements, its earnings and profits derived from the
Partnership, its liability for a tax as a consequence of its
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Partnership Interest and distributive share of taxable income or loss and items
thereof, in each case in a manner that will permit the Managing General Partner
and the Non-Managing General Partners to comply with their respective
obligations to file federal, state and local tax returns and information returns
and to provide their shareholders with tax information. The Managing General
Partner shall provide to each Partner copies of all reports it provides to its
stockholders at the same time such reports are distributed to such stockholders.
The Managing General Partner shall also promptly notify the Partners of all
actions taken by the Managing General Partner for which it has obtained the
Consent of the Limited Partners.
6.5 Audits. Not less frequently than annually, the books and records of
the Partnership shall be audited by the Accountants.
6.6 Tax Returns.
(a) Consistent with all other provisions of this Agreement, the
Managing General Partner shall determine the methods to be used in the
preparation of federal, state, and local income and other tax returns for the
Partnership in connection with all items of income and expense, including, but
not limited to, valuation of assets, the methods of Depreciation and cost
recovery, credits and tax accounting methods and procedures and, with the
consent of the Non-Managing General Partners, all tax elections.
(b) The Managing General Partner shall, at least 30 days prior to
the due dates (as extended) for such returns, but in no event later than July 15
of each year, cause the Accountants to prepare and submit to the DeBartolo
Designee, the Simon Designee and the JCP Limited Partner for their review,
drafts of all federal and state income tax returns of the Partnership for the
preceding year, and the Managing General Partner shall consult in good faith
with the DeBartolo Designee, the Simon Designee and the JCP Limited Partner
regarding any proposed modifications to such tax returns of the Partnership.
(c) The Partnership shall timely cause to be prepared and
transmitted to the Partners federal and appropriate state and local Partnership
Income Tax Schedules "K-l" or any substitute therefor, with respect to each
Partnership Fiscal Year on appropriate forms prescribed. The Partnership shall
make reasonable efforts to prepare and submit such forms before the due date for
filing federal income tax returns for the fiscal year in question (determined
without extensions), and shall in any event prepare and submit such forms on or
before July 15 of the year following the fiscal year in question.
6.7 Tax Matters Partner
The Managing General Partner is hereby designated as the Tax
Matters Partner within the meaning of Section 6231(a)(7) of the Code for the
Partnership; provided, however, that (i) in exercising
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its authority as Tax Matters Partner it shall be limited by the provisions of
this Agreement affecting tax aspects of the Partnership; (ii) the Managing
General Partner shall give prompt notice to the Partners of the receipt of any
written notice that the Internal Revenue Service or any state or local taxing
authority intends to examine Partnership income tax returns for any year,
receipt of written notice of the beginning of an administrative proceeding at
the Partnership level relating to the Partnership under Section 6223 of the
Code, receipt of written notice of the final Partnership administrative
adjustment relating to the Partnership pursuant to Section 6223 of the Code, and
receipt of any request from the Internal Revenue Service for waiver of any
applicable statute of limitations with respect to the filing of any tax return
by the Partnership; (iii) the Managing General Partner shall promptly notify the
Partners if it does not intend to file for judicial review with respect to the
Partnership; and (iv) as Tax Matters Partner, the Managing General Partner shall
not be entitled to bind a Partner by any settlement agreement (within the
meaning of Section 6224 of the Code) unless such Partner consents thereto in
writing and shall notify the Partners in a manner and at such time as is
sufficient to allow the Partners to exercise their rights pursuant to Section
6224(c)(3) of the Code; (v) the Managing General Partner shall consult in good
faith with the Simon Designee, the DeBartolo Designee and the JCP Limited
Partner regarding the filing of a Code Section 6227(b) administrative adjustment
request with respect to the Partnership or a Property before filing such
request, it being understood, however, that the provisions hereof shall not be
construed to limit the ability of any Partner, including the Managing General
Partner, to file an administrative adjustment request on its own behalf pursuant
to Section 6227(a) of the Code; and (vi) the Managing General Partner shall
consult in good faith with the Simon Designee, the DeBartolo Designee and the
JCP Limited Partner regarding the filing of a petition for judicial review of an
administrative adjustment request under Section 6228 of the Code, or a petition
for judicial review of a final partnership administrative judgment under Section
6226 of the Code relating to the Partnership before filing such petition.
6.8 Withholding. Each Partner hereby authorizes the Partnership to
withhold or pay on behalf of or with respect to such Partner any amount of
federal, state, local or foreign taxes that the Managing General Partner
determines the Partnership is required to withhold or pay with respect to any
amount distributable or allocable to such Partner pursuant to this Agreement,
including, without limitation, any taxes required to be withheld or paid by the
Partnership pursuant to Code Sections 1441, 1442, 1445, or 1446. Any amount paid
on behalf of or with respect to a Partner shall constitute a loan by the
Partnership to such Partner, which loan shall be due within fifteen (15) days
after repayment is demanded of the Partner in question, and shall be repaid
through withholding of subsequent distributions to such Partner. Nothing in this
Section 6.8 shall create any obligation on the Managing General Partner to
advance funds to the Partnership or to borrow
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funds from Third Parties in order to make payments on account of any liability
of the Partnership under a withholding tax act. Any amounts payable by a Limited
Partner hereunder shall bear interest at the lesser of (i) the base rate on
corporate loans at large United States money center commercial banks, as
published from time to time in The Wall Street Journal, or (ii) 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 Partnership, such credit shall be
allocated to the Partner to whose distribution the tax is attributable.
ARTICLE VII
Rights, Duties and Restrictions of the General Partners
7.1 Expenditures by Partnership. The Managing General Partner is hereby
authorized to pay compensation for accounting, administrative, legal, technical,
management and other services rendered to the Partnership. All of the aforesaid
expenditures shall be made on behalf of the Partnership and the Managing General
Partner shall be entitled to reimbursement by the Partnership for any
expenditures incurred by it on behalf of the Partnership which shall have been
made other than out of the funds of the Partnership. The Partnership shall also
assume, and pay when due, the Administrative Expenses and such portion of the
Managing General Partners', the Non-Managing General Partners' and their
respective subsidiaries' REIT Expenses as shall be appropriately allocated to
the Partnership by the Managing General Partner in the exercise of its
reasonable business judgment.
7.2 Powers and Duties of the General Partners. The Managing General
Partner shall be responsible for the management of the Partnership's business
and affairs. Except as otherwise herein expressly provided, and subject to the
limitations contained in Section 7.3 hereof with respect to Major Decisions, the
Managing General Partner shall have, and is hereby granted, full and complete
power, authority and discretion to take such action for and on behalf of the
Partnership and in its name as the Managing General Partner shall, in its sole
and absolute discretion, deem necessary or appropriate to carry out the purposes
for which the Partnership was organized. Any action by the Managing General
Partner relating to (i) transactions between the Partnership or a Subsidiary
Entity and M.S. Management Associates, Inc., Simon MOA Management Company, Inc.
and/or M.S. Management Associates (Indiana), Inc., (ii) transactions between the
Partnership or a Subsidiary Entity and DeBartolo Properties Management, Inc. or
(iii) transactions involving the Partnership or a Subsidiary Entity in which the
Simons, the DeBartolos or any Affiliate of the Simons or the DeBartolos has an
interest (other than a non-controlling minority equity interest, which has no
management or veto powers, in a Person, other than the Partnership or a
Subsidiary entity, which is engaged in such transaction) other than through
ownership of Partnership Units, shall require the prior approval of a
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majority of the Independent Directors. Except as otherwise expressly provided
herein and subject to Section 7.3 hereof, the Managing General Partner shall
have, for and on behalf of the Partnership, the right, power and authority:
(a) To manage, control, hold, invest, lend, reinvest, acquire by
purchase, lease, 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 or otherwise encumber,
abandon, improve, repair, construct, maintain, operate, insure, lease for any
term and otherwise deal with any and all property of whatsoever kind and nature,
and wheresoever situated, in furtherance of the purposes of the Partnership, and
in addition, without limiting the foregoing, upon the affirmative vote of no
fewer than three (3) of the Independent Directors of the Managing General
Partner who are not Affiliates of the DeBartolos, the Managing General Partner
shall authorize and require the sale of any property owned by the Partnership or
a Subsidiary Entity.
(b) To acquire, directly or indirectly, interests in real or
personal property (collectively, "property") 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 property, interests therein or parts thereof; to improve, develop
or redevelop any property; 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 and to sell on any terms; to convey, to mortgage, pledge or otherwise
encumber any property, or any part thereof; to lease any 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 any property, or any part thereof, for
other 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 any
property or any part thereof; to construct and reconstruct, remodel, alter,
repair, add to or take from buildings on any property; to insure any Person
having an interest in or responsibility for the care, management or repair of
any property; to direct the trustee of any land trust to mortgage, lease, convey
or contract to convey any property 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; and
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 General
Partner for the operation and management of the Partnership business, including
but not limited to, employees,
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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 Partnership;
(e) To borrow or lend money, procure loans and advances from any
Person for Partnership 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 (including by deeding property to a lender in
lieu of foreclosure);
(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
Partnership 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
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
for the Partnership may deem necessary, proper or advisable;
(g) To acquire and enter into any contract of insurance which the
Managing General Partner deems necessary or appropriate for the protection of
the Partnership or any Affiliate thereof, for the conservation of the
Partnership's assets (or the assets of any Affiliate thereof) or for any purpose
convenient or beneficial to the Partnership or any Affiliate thereof;
(h) To conduct any and all banking transactions on behalf of the
Partnership; to adjust and settle checking, savings and other accounts with such
institutions as the Managing General Partner 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 Partnership'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
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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
Partnership may be entitled or which are or may become due the Partnership from
any Person; to commence, prosecute or enforce, or to defend, answer or oppose,
contest and abandon all legal proceedings in which the Partnership 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
Partnership 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 General Partner to cause
any approved loans to be closed;
(k) To take all reasonable measures necessary to insure compliance
by the Partnership with contractual obligations and other arrangements entered
into by the Partnership 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 Partnership is in compliance with its
contractual obligations;
(1) To maintain the Partnership's books and records;
(m) To create or maintain Affiliates engaged in activities that the
Partnership could itself undertake; and
(n) To prepare and deliver, or cause to be prepared and delivered
by the Accountants, all financial and other reports with respect to the
operations of the Partnership, and preparation and filing of all federal, state
and local tax returns and reports.
Except as otherwise provided herein, to the extent the duties of
the Managing General Partner require expenditures of funds to be paid to Third
Parties, the Managing General Partner shall not have any obligations hereunder
except to the extent that Partnership 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 General Partner, 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 Partnership.
Notwithstanding any other provisions of this Agreement or the Act,
any action of the Managing General Partner on behalf of the Partnership or any
decision of the Managing General Partner to refrain from acting on behalf of the
Partnership, undertaken in the good faith belief that such action or omission is
necessary or
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advisable in order (i) to protect or further the ability of the Managing General
Partner, the Non-Managing General Partners and their respective subsidiaries to
continue to qualify as REITs or (ii) to avoid the Managing General Partner's or
the Non-Managing General Partners' incurring any taxes under Section 857 or
Section 4981 of the Code, is expressly authorized under this Agreement and is
deemed approved by all of the Limited Partners. Nothing, however, in this
Agreement shall be deemed to give rise to any liability on the part of a Limited
Partner for the Managing General Partner's, the Non-Managing General Partner's
or their respective subsidiaries' failure to qualify or continue to qualify as a
REIT or a failure to avoid incurring any taxes under the foregoing sections of
the Code, unless such failure or failures result from an act of the Limited
Partner which constitutes a breach of this Agreement (including, without
limitation, Section 10.4(b)).
7.3 Major Decisions.
(a) The Managing General Partner shall not, without the Consent of
the Limited Partners, and the consent of the Non-Managing General Partners, (y)
on behalf of the Partnership, amend, modify or terminate this Agreement other
than to reflect (A) the admission of Additional Limited Partners pursuant to
Section 9.4 hereof, (B) the making of additional Capital Contributions and the
issuance of additional Partnership Units by reason thereof, all in accordance
with the terms of this Agreement, (C) the withdrawal or assignment of the
interest of any Partner in accordance with the terms of this Agreement, or (D)
any changes necessary to satisfy the REIT Requirements, or (z) permit the
Partnership, on behalf of any Subsidiary Partnership, to amend, modify or
terminate the organizing agreement pursuant to which such Subsidiary Partnership
operates other than to reflect (A) the admission of additional limited partners
therein pursuant to the terms thereof, (B) the making of additional capital
contributions thereto pursuant to the terms thereof, (C) the withdrawal or
assignment of the interest of any partner thereof pursuant to the terms thereof,
or (D) any changes necessary to satisfy the REIT Requirements. Notwithstanding
the foregoing, this Agreement shall not be modified or amended without the prior
written consent of each Partner adversely affected if such modification or
acquisition would (i) convert a Limited Partner's interest in the Partnership to
a general partnership interest, (ii) modify the limited liability of a Limited
Partner, (iii) reduce the interest of any Partner in the Partnership, (iv)
reduce any Partner's share of distributions made by the Partnership, (v) amend
this Section 7.3 or Section 7.5 or (vi) create any obligations for any Limited
Partner or deprive any Limited Partner of (or otherwise impair) any other rights
it may have under this Agreement (including in respect of tax allocations,
rights to indemnification under Section 7.8, rights of the Limited Partner or a
Secured Creditor of a Limited Partner under Section 9.3 (which rights are
subject to the restrictions set forth in Section 9.5), rights of a Limited
Partner under Section 9.6 or Article XI, or the rights of a Limited Partner
under Section 10.4(a) or 10.5); provided, however, that an amendment that
reduces
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the percentage ownership interest of any Partner in the Partnership or reduces
any Partner's share of distributions made by the Partnership (including tax
allocations in respect of such distributions) shall not require the consent of
any Partner if such change is made on a uniform or pro-rata basis with respect
to all Partners.
(b) The Managing General Partner shall not, without the consent
of the Non-Managing General Partners, and for all periods during which the
Simons hold at least ten percent of the Partnership Units then outstanding, the
Managing General Partner shall not, without the prior Consent of the Simons, and
for all periods during which the DeBartolos hold at least ten percent of the
Partnership Units then outstanding, the Managing General Partner shall not,
without the prior Consent of the DeBartolos, on behalf of the Partnership,
undertake any of the following actions (together with any act described in
paragraph (a) hereof, the "Major Decisions"):
(i) Make a general assignment for the benefit of creditors (or
cause or permit (if permission of the Partnership or any Subsidiary Partnership
is required) such an assignment to be made on behalf of a Subsidiary
Partnership) or appoint or acquiesce in the appointment of a custodian, receiver
or trustee for all or any part of the assets of the Partnership (or any
Subsidiary Partnership);
(ii) take title to any personal or real property, other than in
the name of the Partnership or a Subsidiary Entity or pursuant to Section 7.7
hereof;
(iii) institute any proceeding for Bankruptcy on behalf of the
Partnership, or cause or permit (if permission of the Partnership or any
Subsidiary Partnership is required) the institution of any such proceeding on
behalf of any Subsidiary Partnership;
(iv) act or cause the taking or refraining of any action with
respect to the dissolution and winding up of the Partnership (or any Subsidiary
Partnership) or an election to continue the Partnership (or any Subsidiary
Partnership) or to continue the business of the Partnership (or any Subsidiary
Partnership); or
(v) sell, exchange, Transfer or otherwise dispose of all or
substantially all of the Partnership's assets.
(c) The Managing General Partner shall not, without the prior
Consent of the Limited Partners,
(i) after the Effective Time, amend the Charter of the Managing
General Partner to increase or decrease the Ownership Limit or alter any other
provision of said Article or of any of the definitions of defined terms
contained in such article which would have the effect of changing the Ownership
Limit in any way;
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(ii) except in connection with the dissolution and winding-up of
the Partnership by the Liquidation Agent, agree to or consummate the merger or
consolidation of the Partnership or the voluntary sale or other Transfer of all
or substantially all of the Partnership's assets in a single transaction or
related series of transactions (without limiting the transactions which will not
be deemed to be a voluntary sale or Transfer, the foreclosure of a mortgage lien
on any Property or the grant by the Partnership of a deed in lieu of foreclosure
for such Property shall not be deemed to be such a voluntary sale or other
Transfer ); or
(iii) dissolve the Partnership.
Without the consent of all the Limited Partners, the Managing
General Partner shall have no power to do any act in contravention of this
Agreement or applicable law.
7.4 Managing General Partner and Non-Managing General Partners
Participation. The Managing General Partner and the Non-Managing General
Partners agree that (a) substantially all activities and business operations of
the Managing General Partner and the Non-Managing General Partners, including
but not limited to, activities pertaining to the acquisition, development,
redevelopment and ownership of properties, shall be conducted directly or
indirectly through the Partnership or any Subsidiary Partnership and (b) except
as provided below any funds raised by the Managing General Partner or the
Non-Managing General Partners, whether by issuance of stock, borrowing or
otherwise, will be made available to the Partnership whether as capital
contributions, loans or otherwise, as appropriate. Notwithstanding the
provisions of the preceding sentence, each of the Managing General Partner and
the Non-Managing General Partners shall have the right to form Qualified REIT
subsidiaries to act as general partners of Subsidiary Partnerships of the
Partnership. The Managing General Partner and the Non Managing General Partner
agree to conduct their respective affairs, to the extent they are so able to do,
in a manner which will preserve the equivalence in value between a Share and a
Partnership Unit.
7.5 Proscriptions. The Managing General Partner shall not have the
authority to:
(a) Do any act in contravention of this Agreement;
(b) Possess any Partnership property or assign rights in specific
Partnership property for other than Partnership purposes; or.
(c) Do any act in contravention of applicable law.
Nothing herein contained shall impose any obligation on any Person
doing business with the Partnership to inquire as to whether or not the Managing
General Partner has properly exercised its authority in executing any contract,
lease, mortgage, deed or
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any other instrument or document on behalf of the Partnership, and any such
Person shall be fully protected in relying upon such authority.
7.6 Additional Partners. Additional Partners may be admitted to the
Partnership only as provided in Section 9.4 hereof.
7.7 Title Holder. To the extent allowable under applicable law, title
to all or any part of the Properties of the Partnership may be held in the name
of the Partnership or any other individual, corporation, partnership, trust or
otherwise, the beneficial interest in which shall at all times be vested in the
Partnership. 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 General Partner.
7.8 Waiver and Indemnification. Neither the Managing General Partner,
the Non-Managing General Partners nor any of their Affiliates, directors, trust
managers, officers, shareholders, nor any Person acting on their behalf pursuant
hereto, shall be liable, responsible or accountable in damages or otherwise to
the Partnership or to any Partner for any acts or omissions performed or omitted
to be performed by them within the scope of the authority conferred upon the
Managing General Partner or the Non-Managing General Partners by this Agreement
and the Act, provided that the Managing General Partner's, the Non-Managing
General Partners' 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 Partnership and, provided further, that the Managing General
Partner, the Non-Managing General Partners or such other Person shall not be
guilty of fraud, willful misconduct or gross negligence. The Managing General
Partner acknowledges that it owes fiduciary duties both to its shareholders and
to the Limited Partners and it shall use its reasonable efforts to discharge
such duties to each; provided, however, that in the event of a conflict between
the interests of the shareholders of the Managing General Partner and the
interests of the Limited Partners, the Limited Partners agree that the Managing
General Partner shall discharge its fiduciary duties to the Limited Partners by
acting in the best interests of the Managing General Partner's shareholders.
Nothing contained in the preceding sentence shall be construed as entitling
either the Managing General Partner or the Non-Managing General Partners to
realize any profit or gain from any transaction between such Partner and the
Partnership (except as may be required by law upon a distribution to the
Managing General Partner or the Non-Managing General Partners), including from
the lending of money by the Managing General Partner or the Non-Managing General
Partners to the Partnership or the contribution of property by the Managing
General Partner or the Non-Managing General Partners to the Partnership, it
being understood that in any such transaction the Managing General Partner or
the Non-Managing General Partners, as the case may be, shall be entitled to cost
recovery only. The Partnership shall, and hereby does, indemnify and hold
harmless each of the Managing
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General Partner and the Non-Managing General Partners and its Affiliates, their
respective directors, officers, shareholders and any other individual acting on
its or their behalf to the extent such Persons would be indemnified by the
Managing General Partner pursuant to the Charter of the Managing General Partner
if such persons were directors, officers, agents or employees of the Managing
General Partner (or the Charter of SDG or the Amended and Restated Regulations
of SD Property, if such Persons were directors, officers, agents or employees of
the Non-Managing General Partners); provided, however, that no Partner shall
have any personal liability with respect to the foregoing indemnification, any
such indemnification to be satisfied solely out of the assets of the
Partnership. The Partnership shall, and hereby does, indemnify each Limited
Partner and its Affiliates, their respective directors, officers, shareholders
and any other individual acting on its or their behalf, from and against any
costs (including costs of defense) incurred by it as a result of any litigation
or other proceeding in which any Limited Partner is named as a defendant or any
claim threatened or asserted against any Limited Partner, in either case which
relates to the operations of the Partnership or any obligation assumed by the
Partnership, unless such costs are the result of misconduct on the part of, or a
breach of this Agreement by, such Limited Partner; provided, however, no Partner
shall have any personal liability with respect to the foregoing indemnification,
any such indemnification to be satisfied solely out of the assets of the
Partnership.
7.9 Limitation of Liability of Directors Shareholders and Officers of
the Managing General Partner and the Non-Managing General Partners. Any
obligation or liability whatsoever of the General Partners which may arise at
any time under this Agreement or any other instrument, transaction, or
undertaking contemplated hereby shall be satisfied, if at all, out of the assets
of the General Partners or the Partnership only. No such obligation or liability
shall be personally binding upon, nor shall resort for the enforcement thereof
be had to, any of the General Partners' directors, shareholders, officers,
employees, or agents, regardless of whether such obligation or liability is in
the nature of contract, tort or otherwise.
7.10 Distribution to Limited Partners of the SRC Partnership. Pursuant
to the terms of the Agreement of Limited Partnership of the SRC Partnership, the
Partnership will contribute assets to the SRC Partnership, become a limited
partner of the SRC Partnership and receive SRC Partnership Units, which the
Partnership will, in turn, distribute pro rata to all Limited Partners other
than any General Partner who also holds SRC Partnership Units, whereupon the
Limited Partners shall become limited partners of the SRC Partnership.
ARTICLE VIII
Dissolution, Liquidation and Winding-Up
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8.1 Accounting. In the event of the dissolution, liquidation and
winding-up of the Partnership, a proper accounting (which shall be certified by
the Accountants) shall be made of the Capital Account of each Partner and of the
Profits or Losses of the Partnership from the date of the last previous
accounting to the date of dissolution. Financial statements presenting such
accounting shall include a report of the Accountants.
8.2 Distribution on Dissolution. In the event of the dissolution and
liquidation of the Partnership for any reason, the assets of the Partnership
shall be liquidated for distribution in the following rank and order:
(a) Payment of creditors of the Partnership (other than Partners)
in the order of priority as provided by law;
(b) Establishment of reserves as determined by the Managing General
Partner to provide for contingent liabilities, if any;
(c) Payment of debts of the Partnership to Partners, if any, in the
order of priority provided by law;
(d) To the Partners in accordance with the positive balances in
their Capital Accounts after giving effect to all contributions, distributions
and allocations for all periods, including the period in which such distribution
occurs (other than those distributions made pursuant to this Section 8.2(d),
Section 8.3 or Section 8.4 hereof).
If upon dissolution and termination of the Partnership the Capital
Account of any Partner is less than zero, then such Partner shall have no
obligation to restore the negative balance in its Capital Account unless and
except to the extent that such Partner has so elected under Section 4.8.
Whenever the Liquidation Agent reasonably determines that any reserves
established pursuant to paragraph (b) above are in excess of the reasonable
requirements of the Partnership, the amount determined to be excess shall be
distributed to the Partners in accordance with the above provisions.
8.3 Sale of Partnership Assets. In the event of the liquidation of the
Partnership in accordance with the terms of this Agreement, the Liquidation
Agent may sell Partnership property; provided, however, that all sales, leases,
encumbrances or transfers of Partnership assets shall be made by the Liquidation
Agent solely on an "arm's length" basis, at the best price and on the best terms
and conditions as the Liquidation Agent in good faith believes are reasonably
available at the time and under the circumstances and on a non-recourse basis to
the Limited Partners. The liquidation of the Partnership shall not be deemed
finally terminated until the Partnership shall have received cash payments in
full with respect to obligations such as notes, purchase money mortgages,
installment sale contracts or other similar receivables
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received by the Partnership in connection with the sale of Partnership assets
and all obligations of the Partnership have been satisfied or assumed by the
Managing General Partner or the Non-Managing General Partners. The Liquidation
Agent shall continue to act to enforce all of the rights of the Partnership
pursuant to any such obligations until paid in full or otherwise discharged or
settled.
8.4 Distributions in Kind. In the event that it becomes necessary to
make a distribution of Partnership property in kind in connection with the
liquidation of the Partnership, the Managing General Partner may, if it
determines that to do so would be in the best interest of the Partners and
obtains the Consent of the Limited Partners and consent of the Non-Managing
General Partners, 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 8.2 hereof.
Immediately prior to the distribution of Partnership property in kind, the
Capital Account of each Partner shall be increased or decreased, as the case may
be, to reflect the manner in which the unrealized income, gain, loss and
deduction inherent in such property (to the extent not previously reflected in
the Capital Accounts) would be allocated among the Partners if there were a
taxable disposition of such property for its fair market value as of the date of
the distribution.
8.5 Documentation of Liquidation. Upon the completion of the
dissolution and liquidation of the Partnership, the Partnership shall terminate
and the Liquidation Agent shall have the authority to execute and record any and
all documents or instruments required to effect the dissolution, liquidation and
termination of the Partnership.
8.6 Liability of the Liquidation Agent. The Liquidation Agent shall be
indemnified and held harmless by the Partnership from and against any and all
claims, demands, liabilities, costs, damages and causes of action of any nature
whatsoever arising out of or incidental to the Liquidation Agent's taking of any
action authorized under or within the scope of this Agreement; and provided,
however, that no Partner shall have any personal liability with respect to the
foregoing indemnification, any such indemnification to be satisfied solely out
of the assets of the Partnership; and provided further, however, that the
Liquidation Agent shall not be entitled to indemnification, and shall not be
held harmless, where the claim, demand, liability, cost, damage or cause of
action at issue arose out of:
(a) A matter entirely unrelated to the Liquidation Agent's action
or conduct pursuant to the provisions of this Agreement; or
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(b) The proven misconduct or gross negligence of the Liquidation
Agent.
ARTICLE IX
Transfer of Partnership Interests and Related Matters
9.1 Non-Managing General Partners Transfers and Deemed Transfers. Each
of the Non-Managing General Partners shall not (i) withdraw from the
Partnership, (ii) merge, consolidate or engage in any combination with another
Person, (iii) sell all or substantially all of its assets or (iv) sell, assign,
pledge, encumber or otherwise dispose of all or any portion of its Partnership
Units except where such merger, consolidation, sale, assignment, pledge or other
disposal is to another General Partner as its sole successor. In the event of
the withdrawal by a General Partner from the Partnership, in violation of this
Agreement or otherwise, or the dissolution, termination or Bankruptcy of a
General Partner, within 90 days after the occurrence of any such event, the
remaining General Partners or a majority in interest of the remaining Partners
may elect in writing to continue the Partnership business and may, or if there
is then no General Partner other than one that has withdrawn or as to which
dissolution, termination or Bankruptcy has occurred shall, select a substitute
general partner effective as of the date of the occurrence of any such event.
9.2 Managing General Partner Transfers and Deemed Transfers. The
Managing General Partner shall not (i) withdraw from the Partnership, (ii)
merge, consolidate or engage in any combination with another Person other than
to another General Partner, (iii) sell all or substantially all of its assets or
(iv) sell, assign, pledge, encumber or otherwise dispose of all or any portion
of its Partnership Units or Preferred Units except to the Partnership, in each
case without the Consent of the Limited Partners. Upon any transfer of any
Partnership Units (not Preferred Units) in accordance with the provisions of
this Section 9.2, the transferee General Partner shall become vested with the
powers and rights of the transferor General Partner with respect to the
Partnership Units transferred, and shall be liable for all obligations and
responsible for all duties of the transferor General Partner, once such
transferee has executed such instruments as may be necessary to effectuate such
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 Partnership 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 General Partner under this Agreement with
respect to such transferred Partnership Units and no such transfer (other than
pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor General Partner are assumed by a successor
corporation by operation of law) shall relieve the transferor General Partner of
its obligations under this Agreement accruing prior to the date of such
transfer.
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9.3 Transfers by Limited Partners. Except as otherwise provided in this
Section 9.3, the Limited Partners shall not Transfer all or any portion of their
Partnership Units to any transferee without the consent of the Managing General
Partner and the Non-Managing General Partners, which consent may be withheld in
their sole and absolute discretion; provided, however, that the foregoing shall
not be considered a limitation on the ability of the Limited Partners to
exercise their Rights pursuant to Article XI hereof.
(a) Notwithstanding the foregoing, but subject to the provisions of
Section 9.5 hereof, any Limited Partner may at any time, without the consent of
the Managing General Partner or the Non-Managing General Partners, (i) Transfer
all or a portion of its Partnership Units to an Affiliate of such Limited
Partner, or (ii) Pledge some or all of its Partnership Units to any
Institutional Lender. Any Transfer to an Affiliate pursuant to clause (i) and
any Transfer to a pledgee of Partnership Units Pledged pursuant to clause (ii)
may be made without the consent of the Managing General Partner or the
Non-Managing General Partners but, except as provided in subsequent provisions
of this Section 9.3, such transferee or such pledgee shall hold the Units so
transferred to it (and shall be admitted to the Partnership as a Substitute
Limited Partner) subject to all the restrictions set forth in this Section 9.3.
It is a condition to any Transfer otherwise permitted under any provision of
this Section 9.3 that the transferee assumes by operation of law or express
agreement all of the obligations of the transferor Limited Partner under this
Agreement with respect to such transferred Partnership Units arising after the
effective date of the Transfer and no such Transfer (other than pursuant to a
statutory merger or consolidation wherein all obligations and liabilities of the
transferor Partner are assumed by a successor corporation by operation of law,
and other than pursuant to an exercise of the Rights pursuant to Article XI
wherein all obligations and liabilities of the transferor Partner arising from
and after the date of such Transfer shall be assumed by the Managing General
Partner) shall relieve the transferor Partner of its obligations under this
Agreement prior to the effective date of such Transfer. Upon any such Transfer
or Pledge permitted under this Section 9.3, the transferee or, upon foreclosure
on the Pledged Partnership Units, each Institutional Lender which is the pledgee
shall be admitted as a Substituted Limited Partner as such term is defined in
the Act and shall succeed to all of the rights, including rights with respect to
the Rights, of the transferor Limited Partner under this Agreement in the place
and stead of such transferor Limited Partner; provided, however, that
notwithstanding the foregoing, any transferee of any transferred Partnership
Unit shall, unless the Ownership Limit is waived in writing by the Managing
General Partner, be subject to the Ownership Limit applicable to Persons other
than the Limited Partners and/or their Affiliates which may limit or restrict
such transferee's ability to exercise the Limited Partner's Rights, if any. Any
transferee, whether or not admitted as a Substituted Limited Partner, shall take
subject to the obligations of the transferor hereunder. No
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transferee pursuant to a Transfer which is not expressly permitted under this
Section 9.3 and is not consented to by the General Partners, whether by a
voluntary Transfer, by operation of law or otherwise, shall have any rights
hereunder, other than the right to receive such portion of the distributions and
allocations of Profits and Losses made by the Partnership as are allocable to
the Partnership Units so transferred.
(b) In addition to the Rights granted to the JCP Limited Partner
and any other Transfers permitted under this Article IX, the JCP Limited Partner
shall have the right to transfer all of its Partnership Units to a single
accredited investor, as defined in Rule 501 promulgated under the Securities
Act, subject to the provisions of Section 9.5, and such transferee shall be
admitted to the Partnership as a Substitute Limited Partner. Any transferee of
the Partnership Units owned by the JCP Limited Partner shall be subject to all
of the restrictions set forth in Section 9.3(a) above; provided, however, that
if the JCP Limited Partner hereafter Pledges its Partnership Units pursuant to
Section 9.3(a), then provided that the JCP Limited Partner has not previously
exercised the right provided for above in this Section 9.3(c), the Institutional
Lender or Lenders which are the pledgee(s) may exercise such right, whether by
taking title to the JCP Limited Partner's Partnership Units and then
transferring the same or by effecting such transfer upon foreclosure of the
Pledge.
(c) The Limited Partners acknowledge that the Partnership Units
have not been registered under any federal or state securities laws and, as a
result thereof, they may not be sold or otherwise transferred, except in
accordance with Article XI or otherwise in compliance with such laws.
Notwithstanding anything to the contrary contained in this Agreement, no
Partnership Units may be sold or otherwise transferred except pursuant to
Article XI unless such Transfer is exempt from registration under any applicable
securities laws or such Transfer is registered under such laws, it being
acknowledged that the Partnership has no obligation to take any action which
would cause any such interests to be registered.
9.4 Issuance of Additional Partnership Units and Preferred Units. At
any time after the date hereof, subject to the provisions of Section 9.5 hereof,
the Managing General Partner may, with the consent of the Non-Managing General
Partners, upon its determination that the issuance of additional Partnership
Units ("Additional Units") is in the best interests of the Partnership, cause
the Partnership to issue Additional Units to any existing Partner or issue
Additional Units to and admit as a partner in the Partnership any Person in
exchange for the contribution by such Person of cash and/or property which the
Managing General Partner determines is desirable to further the purposes of the
Partnership under Section 2.3 hereof and which the Managing General Partner
determines has a value that justifies the issuance of such Additional Units. In
the event that Additional Units are issued by the Partnership pursuant to this
Section 9.4, the number of
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Partnership Units issued shall be determined by dividing the Gross Asset Value
of the property contributed (reduced by the amount of any indebtedness assumed
by the Partnership or to which such property is subject) as of the date of
contribution to the Partnership (the "Contribution Date") by the Contribution
Deemed Partnership Unit Value, computed as of the Trading Day immediately
preceding the Contribution Date.
In addition, the Managing General Partner may, upon its
determination that the issuance of Preferred Units is in the best interests of
the Partnership, issue Preferred Units in accordance with Sections 4.1(c) and
4.3(c) hereof.
The Managing General Partner shall be authorized on behalf of each
of the Partners to amend this Agreement to reflect the admission of any Partner
or any increase in the Partnership Units or Preferred Units of any Partner in
accordance with the provisions of this Section 9.4, and the Managing General
Partner shall promptly deliver a copy of such amendment to the Non-Managing
General Partners and each Limited Partner. The Limited Partners hereby
irrevocably appoint the Managing General Partner as their attorney-in-fact,
coupled with an interest, solely for the purpose of executing and delivering
such documents, and taking such actions, as shall be reasonably necessary in
connection with the provisions of this Section 9.4 or making any modification to
this Agreement permitted by Section 7.3 (including, without limitation, any
modification which, under Section 7.3 hereof, requires the Consent of the
Limited Partners where such consent has been obtained). Nothing contained in
this Section 9.4 shall be construed as authorizing the Managing General Partner
to grant any consent on behalf of the Limited Partners, or any of them.
9.5 Restrictions on Transfer.
(a) In addition to any other restrictions on Transfer herein contained,
in no event may any Transfer or assignment of a Partnership Unit or Preferred
Unit by any Partner be made nor may any new Partnership Unit or Preferred Unit
be issued by the Partnership (i) to any Person which lacks the legal right,
power or capacity to own a Partnership Unit or Preferred Unit; (ii) in violation
of applicable law; (iii) if such Transfer would immediately or with the passage
of time cause either the Managing General Partner or the Non-Managing General
Partners to fail to comply with the REIT Requirements, such determination to be
made assuming that such Partners do comply with the REIT Requirements
immediately prior to the proposed Transfer; (iv) if such Transfer would cause
the Partnership to become, with respect to any employee benefit plan subject to
Title I of ERISA, a "party-in-interest" (as defined in Section 3(14) of ERISA)
or a "disqualified person" (as defined in Section 4975(e) of the Code); (v) if
such Transfer would, in the opinion of counsel to the Partnership, cause any
portion of the underlying assets of the Partnership to constitute assets of any
employee benefit plan pursuant to Department of Labor Regulations Section
2510.3-101; (vi) if such Transfer would result
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in a deemed distribution to any Partner attributable to a failure to meet the
requirements of Regulations Section l.752-2(d)(l), unless such Partner consents
thereto, (vii) if such Transfer would cause any lender to the Partnership to
hold in excess of ten (10) percent of the Partnership Interest that would,
pursuant to the regulations under Section 752 of the Code or any successor
provision, cause a loan by such a lender to constitute Partner Nonrecourse Debt,
(viii) if such Transfer, other than to an Affiliate, is of a Partnership
Interest the value of which would have been less than $20,000 when issued, (ix)
if such Transfer would, in the opinion of counsel to the Partnership, cause the
Partnership to cease to be classified as a Partnership for federal income tax
purposes or (x) if such Transfer is effectuated through an "established
securities market" or a "secondary market (or the substantial equivalent
thereof)" within the meaning of Section 7704(b) of the Code.
(b) No Preferred Unit may be transferred by the Managing General
Partner to any Person who is not a General Partner of the Partnership.
(c) No Partnership Unit may be transferred by any Partner without a
transfer of the corresponding SRC Partnership Unit.
9.6 Shelf Registration Rights. The Managing General Partner agrees
that, upon the request of any Limited Partner that has not entered into a
Registration Rights Agreement with the Managing General Partner substantially in
the form of Exhibit D hereto (each, a "Shelf Rights Holder"), made at any time,
the Managing General Partner will, if it has not already done so, within 60 days
thereafter file a "shelf" registration statement (the "Shelf Registration"), on
an appropriate form pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act"), or any similar rule that may be adopted by the
SEC, with respect to the sale of Registrable Securities (as defined below) by
the Shelf Rights Holders in ordinary course brokerage or dealer transactions not
involving an underwritten public offering. The Managing General Partner shall
use all reasonable efforts to have the Shelf Registration declared effective as
soon as practicable after such filing and to keep such Shelf Registration
continuously effective following the date on which such Shelf Registration is
declared effective for so long as any Units are outstanding. The Managing
General Partner further agrees, if necessary, to supplement or make amendments
to the Shelf Registration, if required by the registration form used by the
Managing General Partner for the Shelf Registration or by the instructions
applicable to such registration form or by the Securities Act or the rules and
regulations thereunder, and the Managing General Partner agrees to furnish to
each Shelf Rights Holder copies of any such supplement or amendment at least
three days prior to its being used and/or filed with the SEC. Notwithstanding
the foregoing, if the Managing General Partner shall furnish to the Unit holder
a certificate signed by the Chief Executive Officer of the Managing General
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Partner stating that in the good faith judgment of the Directors it would be
significantly disadvantageous to the Managing General Partner and its
stockholders for any such Shelf Registration to be amended or supplemented, the
Managing General Partner may defer such amending or supplementing of such Shelf
Registration for not more than 45 days and in such event the Unit holder shall
be required to discontinue disposition of any Registrable Securities covered by
such Shelf Registration during such period. Notwithstanding the foregoing, if
the Managing General Partner irrevocably elects, or the Partnership is so
required under Section 11.3, prior to the filing of any Shelf Registration to
issue all cash in lieu of Shares upon the exchange of Units by the holder
requesting the tiling of such Shelf Registration, the Managing General Partner
shall not be obligated to file such Shelf Registration Statement. The Managing
General Partner shall make available to its security holders, as soon as
reasonably practicable, a statement of operations covering a period of twelve
(12) months, commencing on the first day of the fiscal quarter next succeeding
each sale of any Registrable Securities pursuant to the Shelf Registration, in a
manner which shall satisfy the provisions of Section 11(a) of the Securities
Act.
(a) Securities Subject to this Section 9.6. The securities entitled
to the benefits of this Section 9.6 are the Shares that have been or may be
issued from time to time upon the exchange of Units pursuant to Article XI
hereof and any other securities issued by the Managing General Partner in
accordance with the terms of this Agreement in exchange for any of the Shares
(collectively, the "Registrable Securities") but, with respect to any particular
Registrable Security, only so long as it continues to be a Registrable Security.
Registrable Securities shall include any securities issued in accordance with
the terms of this Agreement as a dividend or distribution on account of
Registrable Securities or resulting from a subdivision of the outstanding Shares
of Registrable Securities into a greater number of shares (by reclassification,
stock split or otherwise). For the purposes of this Agreement, a security that
was at one time a Registrable security shall cease to be a Registrable Security
when (i) such security has been effectively registered under the Securities Act,
and either (A) the registration statement with respect thereto has remained
continuously effective for 150 days or (B) such security has been disposed of
pursuant to such registration statement, (ii) such security is or can be
immediately sold to the public in reliance on Rule 144 (or any similar provision
then in force) under the Securities Act, (iii) such security has been otherwise
transferred and (a) the Managing General Partner has delivered a new certificate
or other evidence of ownership not bearing the legend set forth on the Shares
upon the initial issuance thereof (or other legend of similar import) and (b) in
the opinion of counsel to the Managing General Partner, the subsequent
disposition of such security would not require the registration or qualification
under the Securities Act or any similar state law then in force, or (iv) such
security has ceased to be outstanding.
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(b) Registration Expenses. The Managing General Partner shall pay,
as REIT Expenses, all expenses incident to the Shelf Registration, including,
without limitation, (i) all SEC, stock exchange and National Association of
Securities Dealers, Inc. registration, filing and listing fees, (ii) all fees
and expenses incurred in complying with securities or "blue sky" laws (including
reasonable tees and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) all fees and disbursements of the Managing General
Partner's independent public accountants and counsel and (v) all fees and
expenses of any special experts retained by the Managing General Partner in
connection with the Shelf Registration pursuant to the terms of this Section
9.6, regardless of whether such Shelf Registration becomes effective, unless
such Shelf Registration fails to become effective as a result of the fault of
the Shelf Rights Holders; provided, however, that the Managing General Partner
shall not pay the costs and expenses of any Shelf Rights Holder relating to
brokerage or dealer fees, transfer taxes or the fees or expenses of any
counsel's accountants or other representatives retained by the Shelf Rights
Holders, individually or in the aggregate.
ARTICLE X
Rights and Obligations of the Limited Partners
10.1 No Participation in Management. Except as expressly permitted
hereunder, the Limited Partners shall not take part in the management of the
Partnership's business, transact any business in the Partnership's name or have
the power to sign documents for or otherwise bind the Partnership; provided,
that the foregoing shall not be deemed to limit the ability of a Limited Partner
(or any officer or director thereof) who is an officer, director or employee of
the Partnership, either the Managing General Partner or Non-Managing General
Partners, or any Affiliate thereof, to act in such capacity.
10.2 Bankruptcy of a Limited Partner. The Bankruptcy of any Limited
Partner shall not cause a dissolution of the Partnership, but the rights of such
Limited Partner to share in the Profits or Losses of the Partnership and to
receive distributions of Partnership funds shall, on the happening of such
event, devolve to its successors or assigns, subject to the terms and conditions
of this Agreement, and the Partnership shall continue as a limited partnership.
However, in no event shall such assignee(s) become a Substituted Limited Partner
except in accordance with Article IX.
10.3 No Withdrawal. No Limited Partner may withdraw from the
Partnership without the prior written consent of the Managing General Partner
and of the Non-Managing General Partners, other than as expressly provided in
this Agreement.
10.4 Duties and Conflicts. (a) The Partners recognize that each of the
other Partners and their Affiliates have or may have other business interests,
activities and investments, some of which
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may be in conflict or competition with the business of the Partnership, and that
such Persons are entitled to carry on such other business interests, activities
and investments. In addition, the Partners recognize that certain of the Limited
Partners and their Affiliates are and may in the future be tenants of the
Partnership, Subsidiary Entities or other Persons or own anchor or other stores
in the Properties of the Partnership, or Subsidiary Entities or other properties
and in connection therewith may have interests that conflict with those of the
Partnership or Subsidiary Entities. In deciding whether to take any actions in
such capacity, such Limited Partners and their Affiliates shall be under no
obligation to consider the separate interests of the Partnership or Subsidiary
Entities and shall have no fiduciary obligations to the Partnership or
Subsidiary Entities and shall not be liable for monetary damages for losses
sustained liabilities incurred or benefits not derived by the other Partners in
connection with such acts; nor shall the Partnership, the Non-Managing General
Partners, the Managing General Partner or any Subsidiary Entities be under any
obligation to consider the separate interests of the Limited Partners and their
Affiliates in such Limited Partners' independent capacities or have any
fiduciary obligations to the Limited Partners and their Affiliates in such
capacity or be liable for monetary damages for losses sustained, liabilities
incurred or benefits not derived by the Limited Partners and their Affiliates in
such independent capacities arising from actions or omissions taken by the
Partnership or Subsidiary Entities. The Limited Partners 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 Partnership or
Subsidiary Entities, without any obligation to offer any interest in such
activities to the Partnership or Subsidiary Entities or to any Partner or
otherwise. Neither the Partnership nor any Partner 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 Partnership or Subsidiary Entities, shall not be deemed
wrongful or improper.
(b) Notwithstanding the foregoing, without the prior consents of
the Managing General Partner and the Non-Managing General Partners, no Limited
Partner shall knowingly take any action, including acquiring, directly or
indirectly, an interest in any tenant of a Property which would have, through
the actual or constructive ownership of any tenant of any Property, the effect
of causing the percentage of the gross income of either of the Managing General
Partner or the Non-Managing General Partners that fails to be treated as "rents
from real property" within the meaning of Section 856(d) of the Code to exceed
such percentage on the date hereof. Each Limited Partner shall have a duty to
notify the Managing General Partner and the Non-Managing General Partners on a
timely basis of any potential acquisition or change in ownership that could
reasonably be expected to have such effect.
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10.5 Guaranty and Indemnification Agreements.
(a) The Partnership shall notify the Limited Partners no less than
45 days (or, if the Partnership itself has less than 45 days' prior notice, as
promptly as practicable) prior to the occurrence of any event that the
Partnership reasonably expects will reduce the amount of Partnership liabilities
(including liabilities of any other Subsidiary Partnership) that the Limited
Partners may include in their individual tax bases of their respective
Partnership Interests pursuant to Treasury Regulation Section 1.752-2 and
Treasury Regulations Section 1.752-3(a)(2) and (3). Upon receipt of such notice,
each Limited Partner shall inform the Partnership of any action it desires to
take in its sole and absolute discretion in order to increase the "economic risk
of loss" (within the meaning of Treasury Regulation 5 1.752-2) (the
"Incurrence") that it has with respect to liabilities of the Partnership or any
other Subsidiary Partnerships. The Partnership shall cooperate with each Limited
Partner to facilitate the Incurrence by such Limited Partner with respect to
Partnership Liabilities or liabilities of any Subsidiary Partnerships in such a
way that the Incurrence has the least amount of real economic risk to such
Limited Partner and provided that the Incurrence does not have a material
adverse impact on any other Partner in the Partnership or any such Partner's
Affiliates.
No direct or indirect Partner in the Partnership or any
partnership which is the obligor on a JCP Property Liability shall incur the
"economic risk of loss" (within the meaning of Treasury Regulation Section
752-2) with respect to any JCP Property Liability without the prior written
consent of the JCP Limited Partner.
(b) Notwithstanding the provisions of Section 10.5(a) above, no
Limited Partners shall have any right to negotiate directly with any lender of
the Partnership or any other Subsidiary Partnership, any such negotiation to be
undertaken in good faith by the Managing General Partner or the Non-Managing
General Partners on behalf of, and at the request of, all affected Limited
Partners.
ARTICLE XI
Grant of Rights to the Limited Partners
11.1 Grant of Rights. The Managing General Partner does hereby grant to
each of the Limited Partners and each of the Limited Partners does hereby accept
the right, but not the obligation (hereinafter such right sometimes referred to
as the "Rights"), to convert all or a portion of such Limited Partner's
Partnership Units into Shares or cash, as selected by the Managing General
Partner, at any time or from time to time, on the terms and subject to the
conditions and restrictions contained in this Article XI; provided, however,
that no Partnership Unit may be converted pursuant to this Article XI without a
conversion of the corresponding
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SRC Partnership Unit; and provided, further that each Partnership Unit converted
pursuant to this Article XI shall be converted into the same form of
consideration as the corresponding SRC Partnership Unit. The Rights granted
hereunder may be exercised by a Limited Partner, on the terms and subject to the
conditions and restrictions contained in this Article XI, upon delivery to the
Managing General Partner of a notice in the form of Exhibit E (an "Exercise
Notice"), which notice shall specify the number of such Limited Partner's
Partnership Units to be converted by such Limited Partner (the "Offered Units").
Once delivered, the Exercise Notice shall be irrevocable, subject to payment by
the Managing General Partner or the Partnership of the Purchase Price for the
Offered Units in accordance with the terms hereof and subject to Section 1 of
the Registration Rights Agreements. In the event the Managing General Partner
elects to cause the Offered Units to be converted into cash, the Managing
General Partner shall effect such conversion by causing the Partnership to
redeem the Offered Units for cash.
11.2 Limitation on Exercise of Rights. If an Exercise Notice is
delivered to the Managing General Partner but, as a result of the Ownership
Limit or as a result of other restrictions contained in the Charter of the
Managing General Partner, the Rights cannot be exercised in full for Shares, the
Exercise Notice, if the Purchase Price is to be payable in Shares, shall be
deemed to be modified such that the Rights shall be exercised only to the extent
permitted under the Ownership Limit or under other restrictions in the Charter
of the Managing General Partner. Notwithstanding the foregoing, any Person shall
be permitted to exercise its Rights hereunder during the first half of a taxable
year of the Managing General Partner even if upon conversion of the Offered
Units into Shares, the Shares held by such Person will exceed the Ownership
Limit, so long as such Person shall immediately following such conversion sell
so many of such Shares as shall cause the Ownership Limit not to be exceeded
upon consummation of such sale. The Managing General Partner hereby agrees to
exercise its right pursuant to its Charter to permit the Ownership Limit to be
exceeded in the circumstances described in the preceding sentence.
11.3 Computation of Purchase Price/Form of Payment. The purchase price
("Purchase Price") payable to a tendering Limited Partner shall be equal to the
Deemed Partnership Unit Value multiplied by the number of Offered Units computed
as of the date on which the Exercise Notice was delivered to the Managing
General Partner (the "Computation Date"). Subject to the following paragraph,
the Purchase Price for the Offered Units shall be payable, at the option of the
Managing General Partner, by causing the Partnership to redeem the Offered Units
for cash in the amount of the Purchase Price, or by the issuance by the Managing
General Partner of the number of Shares equal to the number of Offered Units
(adjusted as appropriate to account for stock splits, stock dividends or other
similar transactions between the Computation Date and the closing of the
purchase and sale of the Offered Units in the manner specified in Section
11.7(d) below).
Where a Limited Partner exercising its rights pursuant to this
Section on or after August 9, 2001, up to, but not
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including, August 9, 2004, is a DeBartolo, and such Limited Partner has received
a special allocation of taxable income or gain from a Covered Sale pursuant to
Section 6.1(e) within 90 days prior to the date of such exercise, then to the
extent of any tax due on such allocation and on the redemption of such Limited
Partner's Units, the Managing General Partner shall, if such Limited Partner so
requests in the Exercise Notice, cause the Partnership to redeem its Units for
cash in accordance with this Section 11.3.
11.4 Closing. The closing of the acquisition or redemption of Offered
Units shall, unless otherwise mutually agreed, be held at the principal offices
of the Managing General Partner, on the date agreed to by the Managing General
Partner and the relevant Limited Partner, which date (the "Settlement Date")
shall in no event be on a date which is later than the later of (i) ten (10)
days after the date of the Exercise Notice and (ii) five (5) days after the
expiration or termination of the waiting period applicable to the Limited
Partner, if any, under the Hart-Scott-Rodino Act (the "HSR Act"). The Managing
General Partner agrees to use its best efforts to obtain an early termination of
the waiting period applicable to any such acquisition, if any, under the HSR
Act. Until the Settlement Date, each tendering Partner shall continue to own his
Offered Units, and will continue to be treated as the holder of such Offered
Units for all purposes of this Agreement, including, without limitation, for
purposes of voting, consent, allocations and distributions. Offered Units will
be transferred to the Managing General Partner only upon receipt by the
tendering Partner of Shares or cash in payment in full therefor.
11.5 Closing Deliveries. At the closing of the purchase and sale or
redemption of Offered Units, payment of the Purchase Price shall be accompanied
by proper instruments of transfer and assignment and by the delivery of (i)
representations and warranties of (A) the tendering Limited Partner with respect
to its due authority to sell all of the right, title and interest in and to such
Offered Units to the Managing General Partner or the Partnership, as applicable,
and with respect to the ownership by of the Limited Partner of such Units, free
and clear of all Liens, and (B) the Managing General Partner with respect to its
due authority to acquire such Units for Shares or to cause the Partnership to
redeem such Units for cash and, in the case of payment by Shares, (ii) (A) an
opinion of counsel for the Managing General Partner, reasonably satisfactory to
such Limited Partner, to the effect that such Shares have been duly authorized,
are validly issued, fully-paid and non-assessable, and (B) a stock certificate
or certificates evidencing the Shares to be issued and registered in the name of
the Limited Partner or its designee.
11.6 Term of Rights. The rights of the parties with respect to the
Rights shall remain in effect, subject to the terms hereof, throughout the
existence of the Partnership.
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11.7 Covenants of the Managing General Partner. To facilitate the
Managing General Partner's ability fully to perform its obligations hereunder,
the Managing General Partner covenants and agrees as follows:
(a) At all times while the Rights are in existence, the Managing
General Partner shall reserve for issuance such number of Shares as may be
necessary to enable the Managing General Partner to issue such Shares in full
payment of the Purchase Price in regard to all Partnership Units which are from
time to time outstanding and held by the Limited Partners.
(b) As long as the Managing General Partner shall be obligated to
file periodic reports under the Exchange Act, the Managing General Partner will
timely file such reports in such manner as shall enable any recipient of Shares
issued to a Limited Partner hereunder in reliance upon an exemption from
registration under the Securities Act to continue to be eligible to utilize Rule
144 promulgated by the SEC pursuant to the Securities Act, or any successor rule
or regulation or statute thereunder, for the resale thereof.
(c) During the pendency of the Rights, the relevant Limited
Partners shall receive in a timely manner all reports filed by the Managing
General Partner with the SEC and all other communications transmitted from time
to time by the Managing General Partner to the owners of its Shares.
(d) Under no circumstances shall the Managing General Partner
declare any stock dividend, stock split, stock distribution or the like, unless
fair and equitable arrangements are provided, to the extent necessary, fully to
adjust, and to avoid any dilution in, the Rights of any Limited Partner under
this Agreement.
11.8 Limited Partners' Covenant. Each of the Limited Partners covenants
and agrees with the Managing General Partner that all Offered Units tendered to
the Managing General Partner or the Partnership, as the case may be, in
accordance with the exercise of Rights herein provided shall be delivered free
and clear of all Liens and should any Liens exist or arise with respect to such
Offered Units, the Managing General Partner or the Partnership, as the case may
be, shall be under no obligation to acquire the same unless, in connection with
such acquisition, the Managing General Partner has elected to cause the
Partnership to pay such portion of the Purchase Price in the form of cash
consideration in circumstances where such consideration will be sufficient to
cause such existing Lien to be discharged in full upon application of all or a
part of such consideration and the Partnership is expressly authorized to apply
such portion of the Purchase Price as may be necessary to satisfy any
indebtedness in full and to discharge such Lien in full. In the event any
transfer tax is payable by the Limited Partner as a result of a transfer of
Partnership Units pursuant to the exercise by a Limited Partner of the Rights,
the Limited Partner shall pay such transfer tax.
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11.9 Dividends. If a Limited Partner shall exchange any Partnership
Units for Shares pursuant to this Article XI on or prior to the Partnership
Record Date for any distribution to be made on such Partnership Units, in
accordance with the Charter of the Managing General Partner such Limited Partner
will be entitled to receive the corresponding distribution to be paid on such
Shares and shall not be entitled to receive the distribution made by the
Partnership in respect of the exchanged Partnership Units.
ARTICLE XII
General Provisions
12.1 Investment Representations.
(a) Each Limited Partner acknowledges that it (i) has been given
full and complete access to the Partnership and those person who will manage the
Partnership in connection with this Agreement and the transactions contemplated
hereby, (ii) has had the opportunity to review all documents relevant to its
decision to enter into this Agreement, and (iii) has had the opportunity to ask
questions of the Partnership and those persons who will manage the Partnership
concerning its investment in the Partnership and the transactions contemplated
hereby.
(b) Each Limited Partner acknowledges that it understands that the
Partnership Units to be purchased or otherwise acquired by it hereunder will not
be registered under the Securities Act of 1933 in reliance upon the exemption
afforded by Section 4(2) thereof for transactions by an issuer not involving any
public offering, and will not be registered or qualified under any applicable
state securities laws. Each Limited Partner represents that (i) it is acquiring
such Partnership Units for investment only and without any view toward
distribution thereof, and it will not sell or otherwise dispose of such
Partnership Units except pursuant to the exercise of the Rights or otherwise in
accordance with the terms hereof and in compliance with the registration
requirements or exemption provisions of any applicable state securities laws,
(ii) its economic circumstances are such that it is able to bear all risks of
the investment in the Partnership Units for an indefinite period of time
including the risk of a complete loss of its investment in the Units and (iii)
it has knowledge and experience in financial and business matters sufficient to
evaluate the risks of investment in the Partnership Units. Each Limited Partner
further acknowledges and represents that it has made its own independent
investigation of the Partnership and the business conducted and proposed to be
conducted by the Partnership, and that any information relating thereto
furnished to the Limited Partner was supplied by or on behalf of the
Partnership.
12.2 Notices. All notices, offers or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and may be
personally delivered or sent by United States mail or by reputable overnight
delivery service and shall be
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deemed to have been given when delivered in person, upon receipt when delivered
by overnight delivery service or three business days after deposit in United
States mail, registered or certified, postage prepaid, and properly addressed,
by or to the appropriate party. For purposes of this Section 12.2, the addresses
of the parties hereto shall be as set forth on Exhibit A hereof. The address of
any party hereto may be changed by a notice in writing given in accordance with
the provisions hereof.
12.3 Successors. This Agreement and all the terms and provisions hereof
shall be binding upon and shall inure to the benefit of all Partners, and their
legal representatives, heirs, successors and permitted assigns, except as
expressly herein otherwise provided.
12.4 Liability of Limited Partners. The liability of the Limited
Partners for their obligations, covenants representations and warranties under
this Agreement shall be several and not joint.
12.5 Effect and Interpretation. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN CONFORMITY WITH THE LAWS OF THE STATE OF DELAWARE.
12.6 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 instrument.
12.7 Partners Not Agents. Nothing contained herein shall be construed
to constitute any Partner the agent of another Partner, except as specifically
provided herein, or in any manner to limit the Partners in the carrying on of
their own respective businesses or activities.
12.8 Entire Understanding; Etc. This Agreement and the other agreements
referenced herein or therein or to which the signatories hereto or thereto are
parties constitute the entire agreement and understanding among the Partners and
supersede any prior understandings and/or written or oral agreements among them
respecting the subject matter within.
12.9 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.
12.10 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 trustee individually, nor
shall anything contained herein subject the individual property of any trustee
to any liability.
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12.11 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."
12.12 Assumption of Liabilities. Nothing contained in this Agreement
shall have the effect of terminating, negating or modifying in any respect the
assumption of liabilities by the Partnership set forth in Section 10.8 of the
Fourth Amended and Restated Limited Partnership Agreement of the Partnership
dated as of April 21, 1994 and the Partnership reaffirms its obligations
thereunder.
12.13 Assurances. Each of the Partners shall hereafter execute and
deliver such further instruments (provided such instruments are in form and
substance reasonably satisfactory to the executing Partner) and do such further
acts and things as may be reasonably required or useful to carry out the intent
and purpose of this Agreement and as are not inconsistent with the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the date and year first above written
which Agreement shall be effective on the date it is executed and delivered by
the Parties hereto.
GENERAL PARTNERS:
SD PROPERTY GROUP, L.P.
By:__________________________
Name:
Title:
SPG PROPERTIES, INC.
By:__________________________
Name:
Title:
SIMON PROPERTY GROUP, INC.
By:__________________________
Name:
Title:
LIMITED PARTNERS:
MELVIN SIMON & ASSOCIATES, INC.
By:__________________________
Name:
Title:
JCP REALTY, INC.
By:__________________________
Name:
Title:
BRANDYWINE REALTY, INC.
By:__________________________
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Name:
Title:
_____________________________
MELVIN SIMON
_____________________________
HERBERT SIMON
_____________________________
DAVID SIMON
_____________________________
DEBORAH J. SIMON
_____________________________
CYNTHIA J. SIMON SKJODT
_____________________________
IRWIN KATZ, as Successor Trustee Under Declaration of Trust and Trust Agreement
Dated August 4, 1970
_____________________________
IRWIN KATZ, as Trustee of the Melvin Simon Trust No. 1, the Melvin Simon Trust
No. 6, the Melvin Simon Trust No. 7 and the Herbert Simon Trust No. 3
MELVIN SIMON & ASSOCIATES, INC.
By:__________________________
Name:
Title:
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PENN SIMON CORPORATION
By:__________________________
Name:
Title:
NACO SIMON CORP.
By:__________________________
Name:
Title:
SANDY SPRINGS PROPERTIES, INC.
By:__________________________
Name:
Title:
SIMON ENTERPRISES, INC.
By:__________________________
Name:
Title:
S.F.G. COMPANY, L.L.C.
By: MELVIN SIMON & ASSOCIATES, INC., its manager
By:__________________________
Name:
Title:
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MELVIN SIMON, HERBERT SIMON AND DAVID SIMON, NOT INDIVIDUALLY BUT AS VOTING
TRUSTEES UNDER THAT CERTAIN VOTING TRUST AGREEMENT, VOTING AGREEMENT AND PROXY
DATED AS OF DECEMBER 1, 1993, BETWEEN MELVIN SIMON & ASSOCIATES, INC., AND
MELVIN SIMON, HERBERT SIMON AND DAVID SIMON:
_____________________________
Melvin Simon
_____________________________
Herbert Simon
_____________________________
David Simon
ESTATE OF EDWARD J. DeBARTOLO
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
_____________________________
Edward J. DeBartolo, Jr., individually, and in his capacity as Trustee under (1)
the Lisa M. DeBartolo Revocable Trust-successor by assignment from Edward J.
DeBartolo Trust No. 5, (ii) the Tiffanie L. DeBartolo Revocable Trust-successor
by assignment from Edward J. DeBartolo Trust No. 6 and (iii) Edward J. DeBartolo
Trust No. 7 for the Benefit of Nicole A. DeBartolo
_____________________________
Cynthia R. DeBartolo
_____________________________, individually, and in his/her capacity as
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Trustee under (i) Edward J. DeBartolo Trust No. 8 for the benefit of John Edward
York, (ii) Edward J. DeBartolo Trust No. 9 for the benefit of Anthony John York,
(iii) Edward J. DeBartolo Trust No. 10 for the benefit of Mara Denise York and
(iv) Edward J. DeBartolo Trust No. 11 for the benefit of Jenna Marie York
EJDC LLC
By:__________________________
Name:
Title:
DeBARTOLO LLC
By:__________________________
Name:
Title:
NIDC LLC
By:__________________________
Name:
Title:
GREAT LAKES MALL LLC
By:__________________________
Name:
Title:
RUES PROPERTIES LLC
By:__________________________
Name:
Title:
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RUES PROPERTIES, INC.
By:__________________________
Name:
Title:
CHELTENHAM SHOPPING CENTER ASSOCIATES
By:__________________________
Name:
Title:
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