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Document Preview Operating Agreement [Amended and Restated No. 2] |
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Title: |
Operating Agreement [Amended and Restated No. 2] |
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Entities: |
General Growth Properties Inc.; Wells Fargo Bank, NA; Goldman, Sachs & Co. |
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Date: |
2002 |
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Size: |
Preview shows 18KB of 235KB total |
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Price: |
$88 |
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ID: |
#336022 |
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SECOND AMENDED AND RESTATED
OPERATING AGREEMENT
OF
GGPLP L.L.C.
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE I Definitions; Etc........................................... 1
1.1 Definitions................................................... 1
1.2 Exhibits, Etc................................................. 15
1.3 Pronouns and Headings......................................... 16
ARTICLE II Continuation............................................... 16
2.1 Continuation.................................................. 16
2.2 Name.......................................................... 16
2.3 Character of the Business..................................... 16
2.4 Location of the Principal Place of Business................... 17
2.5 Registered Agent and Registered Office........................ 17
ARTICLE III Term....................................................... 17
3.1 Commencement.................................................. 17
3.2 Dissolution................................................... 17
ARTICLE IV Classes of Units........................................... 17
4.1 Common Units.................................................. 17
4.2 Preferred Units............................................... 18
4.3 Establishment of Series A Preferred Units..................... 18
4.4 No Third Party Beneficiary.................................... 32
4.5 No Interest; No Return; No Withdrawal......................... 33
4.6 No Other Capital Contributions................................ 33
4.7 Establishment and Issuance of Series B Preferred Units........ 33
ARTICLE V Allocations and Other Tax and Accounting Matters........... 33
5.1 Allocations................................................... 33
5.2 Distributions................................................. 33
5.3 Books of Account.............................................. 34
5.4 Reports....................................................... 34
5.5 Tax Elections and Returns..................................... 34
5.6 Tax Matters Member............................................ 34
{/TABLE}
-i-
{PAGE}
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
PAGE
{S} {C}
5.7 Withholding................................................... 34
ARTICLE VI Rights, Duties and Restrictions of the Managing Member..... 35
6.1 Expenditures by Company....................................... 35
6.2 Powers and Duties of Managing Member.......................... 35
6.3 Proscriptions................................................. 38
6.4 Title Holder.................................................. 38
6.5 Compensation of the Managing Member........................... 38
6.6 Waiver and Indemnification.................................... 38
6.7 Operation in Accordance with REIT Requirements................ 39
6.8 Duties and Conflicts.......................................... 39
ARTICLE VII Dissolution, Liquidation and Winding-Up.................... 40
7.1 Accounting.................................................... 40
7.2 Distribution on Dissolution................................... 40
7.3 Timing Requirements........................................... 40
7.4 Sale of Company Assets........................................ 41
7.5 Distributions in Kind......................................... 41
7.6 Documentation of Liquidation.................................. 41
7.7 Negative Capital Accounts..................................... 41
ARTICLE VIII Transfer of Units.......................................... 41
8.1 Managing Member Transfer...................................... 41
8.2 Transfers by Other Members.................................... 42
8.3 Restrictions on Transfer...................................... 42
8.4 Bankruptcy of a Member........................................ 43
ARTICLE IX Arbitration of Disputes.................................... 43
9.1 Arbitration................................................... 43
9.2 Procedures.................................................... 43
9.3 Binding Character............................................. 44
9.4 Exclusivity................................................... 44
{/TABLE}
-ii-
{PAGE}
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
PAGE
{S} {C}
9.5 No Alteration of Agreement.................................... 44
ARTICLE X General Provisions......................................... 45
10.1 Notices....................................................... 45
10.2 Successors.................................................... 45
10.3 Effect and Interpretation..................................... 45
10.4 Counterparts.................................................. 45
10.5 Members Not Agents............................................ 45
10.6 Entire Understanding; Etc..................................... 45
10.7 Amendments.................................................... 45
10.8 Severability.................................................. 45
10.9 Trust Provision............................................... 45
10.10 Issuance of Certificates Representing Units................... 46
10.11 Specific Performance.......................................... 46
10.12 Power of Attorney............................................. 46
{/TABLE}
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{PAGE}
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B-1
{PAGE}
SECOND AMENDED AND RESTATED
OPERATING AGREEMENT
OF
GGPLP L.L.C.
THIS SECOND AMENDED AND RESTATED OPERATING AGREEMENT is made and
entered into this 17th day of April, 2002, by and among the undersigned parties.
W I T N E S S E T H:
WHEREAS, a Delaware limited liability company known as GGPLP L.L.C.
(the "Company") exists pursuant to the Delaware Limited Liability Company Act
and that certain Amended and Restated Operating Agreement dated as of May 25,
2000 (the "Original Agreement"), among GGP Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"), GGP American Properties Inc.,
a Delaware corporation, Caledonian Holding Company, Inc., a Delaware
corporation, Goldman Sachs 2000 Exchange Place Fund, L.P. (the "GS 2000 Exchange
Fund"), and General Growth Properties, Inc., a Delaware corporation ("GGPI");
WHEREAS, the GS 2000 Exchange Fund has previously assigned its
preferred units of membership interest in the Company to GSEP 2000 Realty Corp.,
a Delaware corporation (the "GS 2000 REIT");
WHEREAS, concurrently herewith, GSEP 2002 Realty Corp., a Delaware
corporation (the "GS 2002 REIT"), is contributing $50,000,000 to the capital of
the Company and, in exchange therefor, the Company is issuing to the GS 2002
REIT Series B Preferred Units (as defined below); and
WHEREAS, the parties hereto, being all of the existing members of the
Company and the GS 2002 REIT, desire to amend and restate the Original Agreement
in its entirety to reflect such capital contribution, to effect the creation and
issuance of the Series B Preferred Units and to reflect the transfer referred to
in the second recital hereof and the other understandings among the parties
hereto in respect of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, do hereby amend and restate the Original
Agreement to read in its entirety as follows:
ARTICLE I
DEFINITIONS; ETC.
1.1 DEFINITIONS. Except as otherwise herein expressly provided, the
following terms and phrases shall have the meanings set forth below (such
definitions to be equally applicable to the singular and plural forms of the
terms so defined):
1
{PAGE}
"Accountants" shall mean the firm or firms of independent certified
public accountants selected by the Managing Member on behalf of the Company and
the Property Partnerships.
"Act" shall mean the Limited Liability Company Act as enacted in the
State of Delaware, as the same has been amended and as the same may hereafter be
amended from time to time.
"Adjusted Capital Account Deficit" shall mean, with respect to any
Member, the deficit balance, if any, in such Member's Capital Account as of the
end of any relevant fiscal year and after giving effect to the following
adjustments:
(a) credit to such Capital Account any amounts which such Member
is obligated or treated as obligated to restore with respect to any
deficit balance in such Capital Account pursuant to Section
1.704-1(b)(2)(ii)(c) of the Regulations, or is deemed to be obligated
to restore with respect to any deficit balance pursuant to the
penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of
the Regulations; and
(b) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the requirements of the alternate test for economic
effect contained in Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be
interpreted consistently therewith
"Adjusted Consolidated Tangible Net Worth" shall mean, as of the time
of determination, the Consolidated Tangible Net Worth at such time less any
Reserve Amount at such time.
"Administrative Expenses" shall mean (i) all administrative and
operating costs and expenses incurred by the Company, (ii) all administrative,
operating and other costs and expenses incurred by the Property Partnerships,
which expenses are being assumed by the Company pursuant to Section 6.1, (iii) a
pro rata portion (as determined in the reasonable judgment of the Managing
Member) of administrative costs and expenses of the Managing Member and GGPI,
including salaries paid to officers of the Managing Member and GGPI and
accounting and legal expenses undertaken by the Managing Member and GGPI on
behalf or for the benefit of the Company, and (iv) to the extent not included in
clause (iii) above, a pro rata portion (as determined in the reasonable
discretion of the Managing Member) of REIT Expenses.
"Affiliate" shall mean, with respect to any Member (or as to any other
Person the affiliates of whom are relevant for purposes of any of the provisions
of this Agreement), (i) any member of the Immediate Family of such Member; (ii)
any trustee or beneficiary of a Member; (iii) any legal representative,
successor, or assignee of such Member or any Person referred to in the preceding
clauses (i) and (ii); (iv) any trustee of any trust for the benefit of such
Member or any Person referred to in the preceding clauses (i) through (iii); or
(v) any Person which directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such Member or any
Person referred to in the preceding clauses (i) through (iv).
2
{PAGE}
"Agreement" shall mean this Amended and Restated Operating Agreement,
as originally executed and as amended, modified, supplemented or restated from
time to time, as the context requires.
"Approved Replacement Property" means, with respect to a Property being
sold, conveyed, transferred or otherwise disposed of, a real estate asset with a
fair market value of at least 90% of the fair market value of the Property being
sold, conveyed, transferred or disposed of.
"Bankruptcy" shall mean, with respect to any Member or the Company, (i)
the commencement by such Member or the Company of any proceeding seeking relief
under any provision or chapter of the federal Bankruptcy Code or any other
federal or state law relating to insolvency, bankruptcy or reorganization, (ii)
an adjudication that such Member or the Company is insolvent or bankrupt; (iii)
the entry of an order for relief under the federal Bankruptcy Code with respect
to such Member or the Company, (iv) the filing of any such petition or the
commencement of any such case or proceeding against such Member or the Company,
unless such petition and the case or proceeding initiated thereby are dismissed
within ninety (90) days from the date of such filing, (v) the filing of an
answer by such Member or the Company admitting the allegations of any such
petition, (vi) the appointment of a trustee, receiver or custodian for all or
substantially all of the assets of such Member or the Company unless such
appointment is vacated or dismissed within ninety (90) days from the date of
such appointment but not less than five (5) days before the proposed sale of any
assets of such Member or the Company, (vii) the insolvency of such Member or the
Company or the execution by such Member or the Company of a general assignment
for the benefit of creditors, (viii) the convening by such Member or the Company
of a meeting of its creditors, or any class thereof, for purposes of effecting a
moratorium upon or extension or composition of its debts, (ix) the failure of
such Member or the Company to pay its debts as they mature, (x) the levy,
attachment, execution or other seizure of substantially all of the assets of
such Member or the Company where such seizure is not discharged within thirty
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