Exhibit
10.2


 


THIRD AMENDED AND RESTATED


 


OPERATING AGREEMENT


 


OF


 


GGPLP L.L.C.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Article I

  	
  Definitions;
  Etc.

  	
  2

  
	
   

  	
  1.1

  	
  Definitions

  	
  2

  
	
   

  	
  1.2

  	
  Exhibits,
  Etc.

  	
  11

  
	
   

  	
  1.3

  	
  Pronouns
  and Headings

  	
  11

  
	
  Article II

  	
  Continuation

  	
  12

  
	
   

  	
  2.1

  	
  Continuation

  	
  12

  
	
   

  	
  2.2

  	
  Name

  	
  12

  
	
   

  	
  2.3

  	
  Character
  of the Business

  	
  12

  
	
   

  	
  2.4

  	
  Location
  of the Principal Place of Business

  	
  12

  
	
   

  	
  2.5

  	
  Registered
  Agent and Registered Office

  	
  12

  
	
  Article III

  	
  Term

  	
  13

  
	
   

  	
  3.1

  	
  Commencement

  	
  13

  
	
   

  	
  3.2

  	
  Dissolution

  	
  13

  
	
  Article IV

  	
  Classes
  of Units

  	
  13

  
	
   

  	
  4.1

  	
  Common
  Units

  	
  13

  
	
   

  	
  4.2

  	
  Preferred
  Units

  	
  13

  
	
   

  	
  4.3

  	
  Establishment
  of Series C Preferred Units

  	
  14

  
	
   

  	
  4.4

  	
  No
  Third Party Beneficiary

  	
  14

  
	
   

  	
  4.5

  	
  No
  Interest; No Return; No Withdrawal

  	
  14

  
	
   

  	
  4.6

  	
  No
  Other Capital Contributions

  	
  14

  
	
  Article V

  	
  Allocations
  and Other Tax and Accounting Matters

  	
  14

  
	
   

  	
  5.1

  	
  Allocations

  	
  14

  
	
   

  	
  5.2

  	
  Distributions

  	
  14

  
	
   

  	
  5.3

  	
  Books
  of Account

  	
  15

  
	
   

  	
  5.4

  	
  Reports

  	
  15

  
	
   

  	
  5.5

  	
  Tax
  Elections and Returns

  	
  15

  
	
   

  	
  5.6

  	
  Tax
  Matters Member

  	
  15

  
	
   

  	
  5.7

  	
  Withholding

  	
  16

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VI

  	
  Rights,
  Duties and Restrictions of the Managing Member

  	
  16

  
	
   

  	
  6.1

  	
  Expenditures
  by Company

  	
  16

  
	
   

  	
  6.2

  	
  Powers
  and Duties of Managing Member

  	
  16

  
	
   

  	
  6.3

  	
  Proscriptions

  	
  19

  
	
   

  	
  6.4

  	
  Title
  Holder

  	
  19

  
	
   

  	
  6.5

  	
  Compensation
  of the Managing Member

  	
  19

  
	
   

  	
  6.6

  	
  Waiver
  and Indemnification

  	
  19

  
	
   

  	
  6.7

  	
  Operation
  in Accordance with REIT Requirements

  	
  20

  
	
   

  	
  6.8

  	
  Duties
  and Conflicts

  	
  20

  
	
  Article VII

  	
  Dissolution,
  Liquidation and Winding-Up

  	
  21

  
	
   

  	
  7.1

  	
  Accounting

  	
  21

  
	
   

  	
  7.2

  	
  Distribution
  on Dissolution

  	
  21

  
	
   

  	
  7.3

  	
  Timing
  Requirements

  	
  21

  
	
   

  	
  7.4

  	
  Sale
  of Company Assets

  	
  22

  
	
   

  	
  7.5

  	
  Distributions
  in Kind

  	
  22

  
	
   

  	
  7.6

  	
  Documentation
  of Liquidation

  	
  22

  
	
   

  	
  7.7

  	
  Negative
  Capital Accounts

  	
  22

  
	
   

  	
  7.8

  	
  DAI
  Contribution Obligation

  	
  22

  
	
  Article VIII

  	
  Transfer
  of Units

  	
  24

  
	
   

  	
  8.1

  	
  Managing
  Member Transfer

  	
  24

  
	
   

  	
  8.2

  	
  Transfers
  in Other Members

  	
  25

  
	
   

  	
  8.3

  	
  Restrictions
  on Transfer

  	
  25

  
	
   

  	
  8.4

  	
  Bankruptcy
  of a Member

  	
  26

  
	
  Article IX

  	
  Arbitration
  of Disputes

  	
  26

  
	
   

  	
  9.1

  	
  Arbitration

  	
  26

  
	
   

  	
  9.2

  	
  Procedures

  	
  26

  
	
   

  	
  9.3

  	
  Binding
  Character

  	
  27

  
	
   

  	
  9.4

  	
  Exclusivity

  	
  27

  
	
   

  	
  9.5

  	
  No
  Alteration of Agreement

  	
  27

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Article X

  	
  General
  Provisions

  	
  27

  
	
   

  	
  10.1

  	
  Notices

  	
  27

  
	
   

  	
  10.2

  	
  Successors

  	
  28

  
	
   

  	
  10.3

  	
  Effect
  and Interpretation

  	
  28

  
	
   

  	
  10.4

  	
  Counterparts

  	
  28

  
	
   

  	
  10.5

  	
  Members
  Not Agents

  	
  28

  
	
   

  	
  10.6

  	
  Entire
  Understanding; Etc.

  	
  28

  
	
   

  	
  10.7

  	
  Amendments

  	
  28

  
	
   

  	
  10.8

  	
  Severability

  	
  28

  
	
   

  	
  10.9

  	
  Trust
  Provision

  	
  28

  
	
   

  	
  10.10

  	
  Issuance
  of Certificates Representing Units

  	
  28

  
	
   

  	
  10.11

  	
  Specific
  Performance

  	
  29

  
	
   

  	
  10.12

  	
  Power
  of Attorney

  	
  29

  



 


iii

















 


THIRD AMENDED AND RESTATED


 


OPERATING AGREEMENT


 


OF


 


GGPLP L.L.C.


 


THIS
THIRD AMENDED AND RESTATED OPERATING AGREEMENT is made and entered into this
[    ] day of
[                    ],
2010, 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
Second Amended and Restated Operating Agreement dated as of April 17,
2002, as amended by that certain First Amendment thereto dated April 23,
2002, that certain Second Amendment thereto dated May 13, 2002, that
certain Third Amendment thereto dated October 30, 2002, that certain
Fourth Amendment thereto dated April 7, 2003, that certain Fifth Amendment
dated April 11, 2003, that certain Sixth Amendment thereto dated November 12,
2003, that certain Seventh Amendment thereto dated May 25, 2005, that
certain Eighth Amendment thereto dated April 23, 2007, that certain Ninth
Amendment thereto dated March 9, 2009, that certain Tenth Amendment
thereto dated May 13, 2010 and that certain Amendment dated August 2,
2010 (the “Original Agreement”); and


 


WHEREAS,
on April 16, 2009, the Company, GGP Limited Partnership, a Delaware
limited partnership, (the “Managing Member”), and certain Affiliates
filed voluntary petitions for relief under title 11 of the United States Code
in the United States Bankruptcy Court for the Southern District of New York
(the “Chapter 11 Cases”);


 


WHEREAS,
in connection with the Company and the Managing Member’s emergence from the
Chapter 11 Cases, the Company will redeem the Common Units held by certain
Members (the “Redemption”); and


 


WHEREAS,
upon the Redemption the Managing Member will own all of the outstanding Common
Units and desires to amend and restate the Original Agreement in its entirety.


 


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 Managing Member,
intending legally to be bound, does 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):


 


“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(0(5) of the Regulations; and


 


(b)           debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.


 


The
foregoing definition of Adjusted Capital Account Deficit is intended to comply
with the requirements of the alternate test for economic effect contained in Section 1.704-1(b)(2)(ii)(d) of
the Regulations and shall be interpreted consistently therewith.


 


“Administrative
Expenses” shall mean (i) all administrative and operating costs and
expenses incurred by the Company, (ii) all administrative, operating and
other costs and expenses incurred by the Property Partnerships, which expenses
are being assumed by the Company pursuant to Section 6.1, (iii) a pro
rata portion (as determined in the reasonable judgment of the Managing Member)
of administrative costs and expenses of the Managing Member and GGPI, including
salaries paid to officers of the Managing Member and GGPI and accounting and
legal expenses undertaken by the Managing Member and GGPI on behalf or for the
benefit of the Company, and (iv) to the extent not included in clause (iii) above,
a pro rata portion (as determined in the reasonable discretion of the Managing
Member) of REIT Expenses.


 


“Affiliate”
shall mean, with respect to any Member (or as to any other Person the
affiliates of whom are relevant for purposes of any of the provisions of this
Agreement), (i) any member of the Immediate Family of such Member; (ii) any
trustee or beneficiary of a Member; (iii) any legal representative,
successor, or assignee of such Member or any Person referred to in the
preceding clauses (i) and (ii); (iv) any trustee of any trust for the
benefit of such Member or any Person referred to in the preceding clauses (i) through
(iii); or (v) any Person which directly 


 


2

















 


or
indirectly through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such Member or any Person referred to in the
preceding clauses (i) through (iv).


 


“Agreement”
shall mean this Third Amended and Restated Operating Agreement, as originally
executed and as amended, modified, supplemented or restated from time to time,
as the context requires.


 


“Bankruptcy”
shall mean, with respect to any Member or the Company, (i) the
commencement by such Member or the Company of any proceeding seeking relief
under any provision or chapter of the federal Bankruptcy Code or any other
federal or state law relating to insolvency, bankruptcy or reorganization, (ii) an
adjudication that such Member or the Company is insolvent or bankrupt, (iii) the
entry of an order for relief under the federal Bankruptcy Code with respect to
such Member or the Company, (iv) the filing of any such petition or the
commencement of any such case or proceeding against such Member or the Company,
unless such petition and the case or proceeding initiated thereby are dismissed
within ninety (90) days from the date of such filing, (v) the filing of an
answer by such Member or the Company admitting the allegations of any such
petition, (vi) the appointment of a trustee, receiver or custodian for all
or substantially all of the assets of such Member or the Company unless such
appointment is vacated or dismissed within ninety (90) days from the date of
such appointment but not less than five (5) days before the proposed sale
of any assets of such Member or the Company, (vii) the insolvency of such
Member or the Company or the execution by such Member or the Company of a
general assignment for the benefit of creditors, (viii) the convening by
such Member or the Company of a meeting of its creditors, or any class thereof,
for purposes of effecting a moratorium upon or extension or composition of its
debts, (ix) the failure of such Member or the Company to pay its debts as
they mature, (x) the levy, attachment, execution or other seizure of
substantially all of the assets of such Member or the Company where such
seizure is not discharged within thirty (30) days thereafter, or (xi) the
admission by such Member or the Company in writing of its inability to pay its
debts as they mature or that it is generally not paying its debts as they
become due.


 


“Business
Day” shall mean a day other than a Saturday, Sunday or a day on which state
or federally chartered banking institutions in New York, New York are not
required to be open.


 


“Capital
Account” shall mean, with respect to any Member, the separate “book”
account which the Company shall establish and maintain for such Member in
accordance with Section 704(b) of the Code and Section l.704-1(b)(2)(iv) of
the Regulations and such other provisions of Section 1.704-1(b) of
the Regulations that must be complied with in order for the Capital Accounts to
be determined in accordance with the provisions of said Regulations. In
furtherance of the foregoing, the Capital Accounts shall be maintained in
compliance with Section 1.704-1(b)(2)(iv) of the Regulations; and the
provisions hereof shall be interpreted and applied in a manner consistent
therewith. In the event that any Units are transferred in accordance with the
terms of this Agreement, the Capital Account, at the time of the transfer, of
the transferor attributable to the transferred Units shall carry over to the
transferee.


 


“Capital
Contribution” shall mean, with respect to any Member, the amount of money
and the initial Gross Asset Value of any property other than money contributed
to the Company 


 


3

















 


with
respect to the Units held by such Member (net of liabilities to which such
property is subject).


 


“Certificate”
shall mean the Certificate of Formation establishing the Company, as filed with
the office of the Delaware Secretary of State, as it may be amended from time
to time in accordance with the terms of this Agreement and the Act.


 


“Charter”
shall mean the certificate of incorporation of GGPI, as filed with the office
of the Delaware Secretary of State, as it may be amended from time to time.


 


“Closing
Price” shall mean, with respect to any Common Shares on any date, the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and ask prices, regular way, in either case as
reported in the principal consolidated transaction reporting system if the
Common Shares are listed or admitted to trading on the New York Stock Exchange
or, if the Common Shares are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities
exchange on which the Common Shares are listed or admitted to trading or, if
the Common Shares are not listed or admitted to trading on any national
securities exchange, the last quoted price, or if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc. Automated
Quotations System or, if such system is no longer in use, the principal other
automated quotations system that may then be in use or, if the Common Shares
are not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the
Common Shares as such person is selected from time to time by the Board of
Directors of GGPI.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended.


 


“Common
Shares” shall mean the shares of the common stock, par value $.01 per
share, of GGPI.


 


“Common
Unit Record Date” shall mean the record date established by the Managing
Member for a distribution of Net Operating Cash Flow pursuant to Section 5.2.


 


“Common
Units” shall mean all Units other than Preferred Units.


 


“Company”
shall have the meaning set forth in the preliminary recitals hereto.


 


“Consent
of the Holders of Common Units” shall mean the written consent of the
holders of a Majority-In-Interest of the Common Units, which Consent shall be
obtained prior to the taking of any action for which it is required by this
Agreement and may be given or withheld by the holders of a Majority-In-Interest
of the Common Units, unless otherwise expressly provided herein, in their sole
and absolute discretion.


 


“Control”
shall have the meaning provided in the regulations promulgated under the
Securities Exchange Act of 1934, as amended.


 


4

















 


“Current
Per Share Market Price” shall mean, as of any date, the average of the
Closing Price for the twenty consecutive Trading Days ending on such date.


 


“DAI”
shall mean DA Retail Investments, LLC, a Delaware limited liability company.


 


“DAI
Contribution Obligation” shall mean the obligation of DAI to make a Capital
Contribution pursuant to Section 7.8 hereof.


 


“Demand
Notice” shall have the meaning set forth in Section 9.2.


 


“Depreciation”
shall mean, with respect to any asset of the Company for any fiscal year or
other period, the depreciation, depletion or amortization, as the case may be,
allowed or allowable for Federal income tax purposes in respect of such asset
for such fiscal year or other period; provided, however, that if there is a difference
between the Gross Asset Value and the adjusted tax basis of such asset,
Depreciation shall mean “book depreciation, depletion or amortization” as
determined under Section 1.704-1(b)(2)(iv)(g)(3) of the
Regulations.


 


“Entity”
shall mean any general partnership, limited partnership, limited liability
company, corporation, joint venture, trust, business trust, cooperative,
association or Other entity.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from
time to time (or any corresponding provisions of succeeding laws).


 


“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.


 


“Exculpatory
Liabilities” shall mean Company liabilities with respect to which both of
the following conditions are met: (i) the creditor’s right to repayment is
not limited to specified assets of the Company (i.e., the liability constitutes
a recourse obligation of the Company), and (ii) no Member or related
person bears the economic risk of loss for such liability (as determined
pursuant to Section 1.752-2 of the Regulations, except that for this
purpose the DAI Contribution Obligation shall be disregarded).


 


“Financial
Statements” shall mean financial statements (balance sheet, statement of
income, statement of partners’ equity and statement of cash flows) prepared in
accordance with generally accepted accounting principles.


 


“GAAP”
shall mean generally accepted accounting principles in the United States as in
effect from time to time.


 


“GGPI”
shall mean General Growth Properties, Inc., a Delaware corporation.(1)


 


“Gross
Asset Value” shall mean, with respect to any asset of the Company, such
asset’s adjusted basis for Federal income tax purposes, except as follows:


 






(1) 
This will be “New GGP”, post-Effective Date.


 


5

















 


(a)           the initial Gross Asset Value of (i) the assets
contributed by each Member to the Company prior to the date hereof is the gross
fair market value of such contributed assets as indicated in the books and
records of the Company as of the date hereof, and (ii) any asset hereafter
contributed by a Member (including the Managing Member), other than money, is
the gross fair market value thereof as reasonably determined by the Managing
Member using such reasonable method of valuation as the Managing Member may
adopt;


 


(b)           if the Managing Member reasonably determines that an
adjustment is necessary or appropriate to reflect the relative economic
interests of the Members, the Gross Asset Values of all Company assets shall be
adjusted to equal their respective gross fair market values, as reasonably
determined by the Managing Member, as of the following times:


 


(i)            a Capital Contribution (other than a de  minimis
Capital Contribution) to the Company by a new or existing Member as
consideration for Units; and


 


(ii)           the distribution by the Company to a Member of more than a
de  minimis amount of Company property as consideration for the
redemption of Units;


 


(c)           the Gross Asset Values of all Company assets shall be
adjusted to equal their respective gross fair market values, as reasonably
determined by the Managing Member, upon liquidation of the Company within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations;


 


(d)           the Gross Asset Values of Company assets distributed to
any Member shall be the gross fair market values of such assets (taking Section 7701(g) of
the Code into account) as reasonably determined by the Managing Member as of
the date of distribution; and


 


(e)           the Gross Asset Values of Company assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Sections 734(b) or 743(b) of the Code, but
only to the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the
Regulations (See Exhibit A); provided, however, that Gross Asset
Values shall not be adjusted pursuant to this paragraph to the extent that the
Managing Member reasonably determines that an adjustment pursuant to paragraph (b) above
is necessary or appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this paragraph (d).


 


At
all times, Gross Asset Values shall be adjusted by any Depreciation taken into
account with respect to the Company’s assets for purposes of computing Net
Income and Net Loss. Any adjustment to the Gross Asset Values of Company
property shall require an adjustment to the Members’ Capital Accounts; as for
the manner in which such adjustments are allocated to the Capital Accounts, see
paragraph (c) of the definition of Net Income and Net Loss in the case of
adjustment by Depreciation, and paragraph (e) of said definition in all
other cases.


 


6






 










 


“Gross
Asset Value Available to Pay Recourse Liabilities and Exculpatory Liabilities”
shall be determined upon liquidation of the Company and shall mean the excess
of (i) the aggregate Gross Asset Value of all Company assets (not
including the DAI Contribution Obligation or any similar capital contribution
obligation or capital account restoration obligation of any other Member),
except that for this purpose Code Section 7701(g) shall not be
applied in determining the fair market value of an asset solely because it is
subject to or available to satisfy one or more Exculpatory Liabilities, over (ii) the
aggregate amount of all Nonrecourse Liabilities other than Exculpatory
Liabilities.


 


“Immediate
Family” shall mean, with respect to any Person, such Person’s spouse,
parents, parents-in-law, descendants, nephews, nieces, brothers, sisters,
brothers-in-law, sisters-in-law and children-in-law.


 


“Lien”
shall mean any liens, security interests, mortgages, deeds of trust, charges,
claims, encumbrances, pledges, options, rights of first offer or first refusal
and any other rights or interests of others of any kind or nature, actual or
contingent, or other similar encumbrances of any nature whatsoever.


 


“Liquidating
Trustee” shall mean such individual or Entity as is selected as the
Liquidating Trustee hereunder by the Managing Member, which individual or
Entity may include the Managing Member or an Affiliate of the Managing Member,
provided such Liquidating Trustee agrees in writing to be bound by the terms of
this Agreement. The Liquidating Trustee shall be empowered to give and receive
notices, reports and payments in connection with the dissolution, liquidation
and/or winding-up of the Company and shall hold and exercise such other rights
and powers as are necessary or required to permit all parties to deal with the
Liquidating Trustee in connection with the dissolution, liquidation and/or
winding-up of the Company.


 


“Majority-In-Interest
of the Common Units” shall mean holders of more than fifty percent (50%) of
then issued and outstanding Common Units.


 


“Management
Agreement” shall mean a property management agreement with respect to the
property management of certain Properties entered into (a) with respect to
any Property in which the Company directly holds or acquires ownership of a fee
or leasehold interest, between the Company, as owner, and the Property Manager,
or such other property manager as the Managing Member shall engage, as manager,
and (b) with respect to all Properties other than those described in (a) above,
between each Property Partnership, as owner, and the Property Manager, or such
other property manager as the Managing Member shall engage, as such agreement
may be amended, modified or supplemented from time to time.


 


“Managing
Member” shall mean GGP Limited Partnership, a Delaware limited partnership,
its duly admitted successors and assigns and any other Person who is a Managing
Member of the Company at the time of reference thereto.  The Managing Member may not be removed as
Managing Member for any reason.


 


“Members”
shall mean the Persons listed under the caption “Members” on Schedule A
hereto, their permitted successors or assigns or any Person who, at the time of
reference thereto, 


 


7

















 


is
a member of the Company, including the holders of Common Units and Preferred
Units on the date thereof.


 


“Minimum
Gain Attributable to Partner Nonrecourse Debt” shall mean “partner
nonrecourse debt minimum gain” as determined in accordance with Regulation Section 1.704-2(i)(2).


 


“Net
Financing Proceeds” shall mean the cash proceeds received by the Company in
connection with any borrowing or refinancing of borrowing by or on behalf of
the Company or by or on behalf of any Property Partnership (whether or not secured),
after deduction of all costs and expenses incurred by the Company or the
Property Partnership in connection with such borrowing, and after deduction of
that portion of such proceeds used to repay any other indebtedness of the
Company or Property Partnerships, or any interest or premium thereon.


 


“Net
Income or Net Loss” shall mean, for each fiscal year or other applicable
period, an amount equal to the Company’s net income or loss for such year or
period as determined for federal income tax purposes by the Accountants,
determined in accordance with Section 703(a) of the Code (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a) of the Code shall be included
in taxable income or loss), with the following adjustments: (a) by
including as an item of gross income any tax-exempt income received by the
Company; (b) by treating as a deductible expense any expenditure of the
Company described in Section 705(a)(2)(B) of the Code (including amounts
paid or incurred to organize the Company (unless an election is made pursuant
to Code Section 709(b)) or to promote the sale of interests in the Company
and by treating deductions for any losses incurred in connection with the sale
or exchange of Company property disallowed pursuant to Section 267(a)(1) or
Section 707(b) of the Code as expenditures described in Section 705(a)(2)(B) of
the Code); (c) in lieu of depreciation, depletion, amortization, and other
cost recovery deductions taken into account in computing total income or loss,
there shall be taken into account Depreciation; (d) gain or loss resulting
from any disposition of Company property with respect to which gain or loss is
recognized for federal income tax purposes shall be computed by reference to
the Gross Asset Value of such property rather than its adjusted tax basis; and (e) in
the event of an adjustment of the Gross Asset Value of any Company asset which
requires that the Capital Accounts of the Company be adjusted pursuant to Regulation
Section 1.704-1(b)(2)(iv)(e), (f) and (m), the amount of such
adjustment is to be taken into account as additional Net Income or Net Loss
pursuant to Exhibit A.


 


“Net
Operating Cash Flow” shall mean, with respect to any fiscal period of the
Company, the excess, if any, of “Receipts” over “Expenditures.” For purposes
hereof, the term “Receipts” means the sum of all cash receipts of the Company
from all sources for such period, including Net Sale Proceeds and Net Financing
Proceeds but excluding Capital Contributions, and any amounts held as reserves
as of the last day of such period which the Managing Member reasonably deems to
be in excess of necessary reserves as determined below. The term “Expenditures”
means the sum of (a) all cash expenses or expenditures of the Company for
such period, (b) the amount of all payments of principal and interest on
account of any indebtedness of the Company, or amounts due on such indebtedness
during such period (in the case of clauses (a) and (b), excluding expenses
or expenditures paid from previously established reserves or deducted in
computing Net Financing Proceeds or Net Sales Proceeds), and (c) such
additional 


 


8

















 


cash
reserves as of the last day of such period as the Managing Member deems
necessary for any capital or operating expenditure permitted hereunder.


 


“Net
Sale Proceeds” means the cash proceeds received by the Company in
connection with a sale of any asset by or on behalf of the Company or by or on
behalf of a Property Partnership after deduction of any costs or expenses
incurred by the Company or a Property Partnership, or payable specifically out
of the proceeds of such sale (including, without limitation, any repayment of
any indebtedness required to be repaid as a result of such sale or which the
Managing Member elects to repay out of the proceeds of such sale, together with
accrued interest and premium, if any, thereon and any sales commissions or
other costs and expenses due and payable to any Person in connection with a
sale, including to a Member or its Affiliates).


 


“Nonrecourse
Deductions” shall have the meaning set forth in Sections 1.704-2(b)(1) and
(c) of the Regulations.


 


“Nonrecourse
Liabilities” shall have the meaning set forth in Section 1.704-2(b)(3) of
the Regulations.


 


“Original
Agreement” shall have the meaning set forth in the preliminary recitals
hereto.


 


“Partner
Nonrecourse Deductions” shall have the meaning set forth in Section 1.704-2(i)(2) of
the Regulations.


 


“Partnership
Minimum Gain” shall have the meaning set forth in Section 1.704-2(b)(2) of
the Regulations.


 


“Person”
or “person” shall mean any individual or Entity.


 


“Preferred
Units” shall mean the Series C Preferred Units and any other series of
preferred units of membership interest in the Company that are established and
issued from time to time in accordance with the terms hereof.


 


“Prime
Rate” shall mean the prime rate announced from time to time by Wells Fargo
Bank, N.A. or any successor thereof.


 


“Property”
shall mean a Shopping Center Project in which the Company or any Property
Partnership, directly or indirectly, acquires ownership of a fee or leasehold
interest.


 


“Property
Manager” shall mean General Growth Management, Inc., a Delaware
corporation, or its successors or assigns.


 


“Property
Partnership” shall mean and include any partnership, limited liability
company or other Entity in which the Company directly or indirectly is or
becomes a partner, member or other equity participant and which has been or is
formed for the purpose of directly or indirectly acquiring, developing or
owning a Property or a proposed Property.


 


9

















 


“Property
Partnership Interests” shall mean and include the interest of the Company
or any other Entity as a partner, member or other equity participant in any
Property Partnership.


 


“Qualified
Entity” shall mean a partnership, limited liability company or other Entity
that is organized under the laws of any state and that is not taxable as a
corporation for U.S. federal income tax purposes.


 


“Qualified
Individual” shall have the meaning set forth in Section 9.2.


 


“Recourse
Liabilities” shall mean Company liabilities with respect to which a Member
or related person bears the economic risk of loss (as determined pursuant to Section 1.752-2
of the Regulations, except that for this purpose the DAI Contribution
Obligation shall be disregarded).


 


“Regulations”
shall mean the final, temporary or proposed Income Tax Regulations promulgated
under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).


 


“Regulatory
Allocations” shall have the meaning set forth in Exhibit A.


 


“REIT”
shall mean a real estate investment trust as defined in Section 856 of the
Code.


 


“REIT
Expenses” shall mean (i) costs and expenses relating to the formation
and continuity of existence of GGPI and its subsidiaries (which subsidiaries
shall, for purposes of this definition, be included within the definition of
GGPI), including taxes, fees and assessments associated therewith, any and all
costs, expenses or fees payable to any director or trustee of GGPI or such
subsidiaries, (ii) costs and expenses relating to any offer or
registration of securities by GGPI and all statements, reports, fees and
expenses incidental thereto, including underwriting discounts and selling
commissions applicable to any such offer of securities, (iii) costs and
expenses associated with the preparation and filing of any periodic reports by
GGPI under federal, state or local laws or regulations, including filings with
the SEC, (iv) costs and expenses associated with compliance by GGPI with
laws, rules and regulations promulgated by any regulatory body, including
the SEC, and (v) all other operating or administrative costs of GGPI
incurred in the ordinary course of its business.


 


“REIT
Requirements” shall have the meaning set forth in Section 5.2.


 


“REIT
Subsidiaires” shall mean [SubREIT 1], a Delaware corporation, [SubREIT 2],
a Delaware corporation, and [Existing GGP], a Delaware corporation.


 


“Requesting
Party” shall have the meaning set forth in Section 9.2.


 


“Responding
Party” shall have the meaning set forth in Section 9.2.


 


“SEC”
shall mean the United States Securities and Exchange Commission.


 


“Section 704(c) Tax
Items” shall have the meaning set forth in Exhibit A.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended.


 


10

















 


“Series C
Preferred Units” shall have the meaning set forth in Section 4.3.


 


“Shopping
Center Project” shall mean any shopping center, including construction and
improvement activities undertaken with respect thereto and off-site
improvements, on-site improvements, structures, buildings and/or related
parking and other facilities.


 


“Subsidiaries”
shall mean all Entities in which the Company has a direct or indirect interest
and that would be consolidated with the Company for financial accounting
purposes under GAAP.


 


“Substituted
Member” shall have the meaning set forth in Section 8.2.


 


“Tax
Items” shall have the meaning set forth in Exhibit A.


 


“Trading
Day” shall mean a day on which the principal national securities exchange
on which the Common Shares are listed or admitted to trading is open for the
transaction of business or, if the Common Shares are not listed or admitted to
trading on any national securities exchange, shall mean any Business Day.


 


“Unit(s)”
shall mean a unit of a Member’s limited liability company interest as a Member
of the Company entitling the holder to an equal share, with every other holder
of a Unit, in the allocations and distributions of the Company pursuant to Article VIII,
and the rights of management, consent, approval or participation, if any,
granted to holders of Units as provided in this Agreement.  Notwithstanding anything to the contrary, to
the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code,
the Company will not issue nonvoting equity interests; provided, however
the foregoing restriction will (a) have no further force and effect beyond
that required under Section 1123 of the Bankruptcy Code, (b) only
have such force and effect for so long as Section 1123 of the Bankruptcy
Code is in effect and applicable to the Company, and (c) in all events may
be amended or eliminated in accordance with applicable law as from time to time
may be in effect.  Such interests shall
be deemed “securities” under Article 8 of the Uniform Commercial Code and
shall be governed by Article 8 of the Uniform Commercial Code as in effect
from time to time within the State.  The
number and designation of all Units held by each Member as of
[                      ],
2010 is set forth opposite such Member’s name on Schedule A


 


1.2          Exhibits, Etc.  References to an “Exhibit” or to a “Schedule”
are, unless otherwise specified, to one of the Exhibits or Schedules attached
to this Agreement, and references to an “Article” or a “Section” are, unless
otherwise specified, to one of the Articles or Sections of this Agreement. Each
Exhibit and Schedule attached hereto and referred to herein is hereby
incorporated herein by reference.


 


1.3          Pronouns and Headings.  As used herein, all pronouns shall include
the masculine, feminine and neuter, and all defined terms shall include the
singular and plural thereof wherever the context and facts require such
construction. The headings, titles and subtitles herein are inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.  Any references in
this Agreement to “including” shall be deemed to mean “including without
limitation”.


 


11

















 


ARTICLE II


 


Continuation


 


2.1          Continuation.  The Company was formed as a limited liability
company under the Act on May 17, 2000 by the filing of the Certificate
with the Delaware Secretary of State on such date.  The Members agree that the rights and
liabilities of the Members shall be as provided in this Agreement (which amends
and restates and supersedes the Original Agreement in its entirety) and, to the
extent not provided herein, in the Act. 
The Managing Member shall cause such notices, instruments, documents, or
certificates as may be required by applicable law or which may be necessary to
enable the Company to conduct its business and to own its properties in the
Company name to be filed or recorded in all appropriate public offices.


 


2.2          Name.  The business of the Company shall be
conducted under the name of “GGPLP L.L.C.” or such other name as the Managing
Member may select, and all transactions of the Company, to the extent permitted
by applicable law, shall be carried on and completed in such name.


 


2.3          Character of the Business.  The purpose of the Company shall be to
acquire, hold, own, develop, construct, improve, maintain, operate, sell,
lease, transfer, encumber, convey, exchange, and otherwise dispose of or deal
with Properties; to acquire, hold, own, develop, construct, improve, maintain,
operate, sell, lease, transfer, encumber, convey, exchange, and otherwise
dispose of or deal with real and personal property of all kinds; to exercise
all of the powers of a partner, member or other equity participant in Property
Partnerships; to acquire, own, deal with and dispose of Property Partnership
Interests; to undertake such other activities as may be necessary, advisable,
desirable or convenient to the business of the Company, and to engage in such
other ancillary activities as shall be necessary or desirable to effectuate the
foregoing purposes.  The Company shall
have all powers necessary or desirable to accomplish the purposes
enumerated.  In connection with and
without limiting the foregoing, but subject to all of the terms, covenants,
conditions and limitations contained in this Agreement and any other agreement
entered into by the Company, the Company shall have full power and authority,
directly or through its interests in Property Partnerships, to enter into,
perform, and carry out contracts of any kind, to borrow money and to issue
evidences of indebtedness, whether or not secured by mortgage, trust deed,
pledge or other Lien, and, directly or indirectly, to acquire and construct
additional Properties.


 


2.4          Location of the Principal Place of Business.  The location of the principal place of
business of the Company shall be at 110 North Wacker Drive, Chicago, Illinois
60606, or at such other location as shall be selected by the Managing Member
from time to time in its sole discretion.


 


2.5          Registered Agent and Registered Office.  The Company shall maintain a registered agent
and registered office as is required by the Act.


 


12

















 


ARTICLE III


 


Term


 


3.1          Commencement.  The Company heretofore commenced business as
a limited liability company.


 


3.2          Dissolution.  The Company shall continue until dissolved
upon the occurrence of the earliest of the following events:


 


(a)           The dissolution, termination or retirement of the Managing
Member unless the Company is continued as provided in Section 8.1;


 


(b)           The sale or other disposition of all or substantially all
the assets of the Company unless the Managing Member elects to continue the
Company business for the purpose of the receipt and the collection of
indebtedness or the collection of any other consideration to be received in
exchange for the assets of the Company (which activities shall be deemed to be
part of the winding up of the affairs of the Company); or


 


(c)           Dissolution required by operation of law.


 


The
bankruptcy (as defined in Section 18-101(1) and 18-304 of the Act) of
the Managing Member shall not cause the Managing Member to cease to be a member
and Managing Member of the Company and upon the occurrence of such an event,
the business of the Company shall continue without dissolution.


 


ARTICLE IV


 


Classes of Units


 


4.1          Common Units.  The Company has issued to the Members the
number of common units of membership interest in the Company (the “Common
Units”) set forth opposite their names on Schedule A, and, in
exchange therefor, such Members have contributed to the Company as their Capital
Contributions the cash and other property set forth in the books and records of
the Company.  The Common Units have such
rights as are described herein.  The
Managing Member may, without the consent of the other Members, issue additional
Common Units to itself and others from time to time for such consideration as
it deems is appropriate.  The Managing
Member shall be authorized to amend this Agreement to reflect the issuance of
Common Units in accordance with this Section 4.1 without the joinder of
any other Member.


 


4.2          Preferred Units.  The Managing Member shall have the right,
without the consent of the other Members (except as otherwise provided herein),
to establish and issue from time to time series of preferred units of
membership interest in the Company (“Preferred Units”) and to establish
from time to time the number of Preferred Units to be included in each such
series, to fix the designation, powers, preferences and rights of the Preferred
Units of each such series and the qualifications, limitations and restrictions
thereof and to determine the consideration to be paid from time to time for the
Preferred Units in each such series. 
Except as otherwise provided herein, Preferred Units that are cancelled
or redeemed or purchased by the 


 


13

















 


Company may, at the election of the Managing Member,
either (a) be reissued by the Company or (b) be cancelled.  The Managing Member shall be authorized to
amend this Agreement to effect the provisions of this Section 4.2 without
the joinder of any other Member (except as otherwise provided herein).


 


4.3          Establishment of Series C Preferred Units.  A series of Preferred Units designated as the
“8.25% Series C Cumulative Preferred Units” (the “Series C
Preferred Units”) was previously established and shall have such rights,
preferences, limitations and qualifications as are described on Schedule B,
attached hereto and by this reference made a part hereof (in addition to the
rights, preferences, limitations and qualifications contained elsewhere in this
Agreement, to the extent applicable). The maximum number of Series C
Preferred Units which may be issued by the Company from time to time shall be
20,000.


 


4.4          No Third Party Beneficiary.  No creditor or other third party having
dealings with the Company shall have the right to enforce the right or
obligation of any Member to make Capital Contributions or loans or to pursue
any other right or remedy hereunder or at law or in equity, it being understood
and agreed that the provisions of this Agreement shall be solely for the
benefit of, and may be enforced solely by the parties hereto and their
respective successors and assigns. None of the rights or obligations of the
Members herein set forth to make Capital Contributions or loans to the Company
shall be deemed an asset of the Company for any purpose by any creditor or
other third party, nor may such rights or obligations be sold, transferred or
assigned by the Company or pledged or encumbered by the Company to secure any debt
or other obligation of the Company or of any of the Members.


 


4.5          No Interest; No Return; No Withdrawal.  No Member shall be entitled to interest on
its Capital Contribution or on its Capital Account. Except as provided herein
or by law, no Member shall have any right to demand or receive the return of
its Capital Contribution from the Company. No Member may withdraw from the
Company without the prior written consent of the Managing Member, other than as
expressly provided in this Agreement.


 


4.6          No Other Capital Contributions.  No Member shall have any obligation to make
any additional Capital Contribution to the Company.


 


ARTICLE V


 


Allocations and Other Tax
and Accounting Matters


 


5.1          Allocations.  The Net Income, Net Loss and/or other Company
items shall be allocated pursuant to the provisions of Exhibit A
hereto.


 


5.2          Distributions.


 


(a)           Subject to the rights of holders of Preferred Units, the
Managing Member shall, from time to time as determined by the Managing Member
(but in any event not less frequently than quarterly), cause the Company to
distribute all or a portion of Net Operating Cash Flow to the holders of the
Common Units who are such on the relevant Common Unit Record Date in such
amounts as the Managing Member shall determine; provided, however,
that all such distributions shall be made pro  rata in accordance
with 


 


14

















 


the number of Common Units
then owned by the Members; and provided further, that notwithstanding
the foregoing, the Managing Member shall use its best efforts to cause the
Company to distribute sufficient amounts to enable GGPI and the REIT
Subsidiaries to pay shareholder dividends that will (a) satisfy the
requirements for qualifying as a REIT under the Code and Regulations (“REIT
Requirements”), and (b) avoid any federal income or excise tax
liability of GGPI and the REIT Subsidiaries.


 


(b)           The Company shall pay distributions in respect of each
series of Preferred Units as provided in Section 4.3 hereof, Schedule B
and/or any amendment hereto relating to such series of Preferred Units.


 


5.3          Books of Account.  At all times during the continuance of the
Company, the Managing Member shall maintain or cause to be maintained full,
true, complete and correct books of account in accordance with generally
accepted accounting principles wherein shall be entered particulars of all
monies, goods or effects belonging to or owing to or by the Company, or paid,
received, sold or purchased in the course of the Company’s business, and all of
such other transactions, matters and things relating to the business of the
Company as are usually entered in books of account kept by persons engaged in a
business of a like kind and character. In addition, the Company shall keep all
records as required to be kept pursuant to the Act. The books and records of
account shall be kept at the principal office of the Company, and each Member
shall at all reasonable times have access to such books and records and the
right to inspect the same.


 


5.4          Reports.  The Managing Member shall cause to be
submitted to the other Members, promptly following the end of the last calendar
year, copies of Financial Statements prepared on a consolidated basis for the
Company and the Property Partnerships. The Company shall also cause to be
prepared such reports and/or information as are necessary for GGPI and the REIT
Subsidiaries to determine their qualification as a REIT and their compliance
with the REIT Requirements.


 


5.5          Tax Elections and Returns.


 


(a)           All elections required or permitted to be made by the
Company under any applicable tax law shall be made by the Managing Member in
its sole discretion, including without limitation an election on behalf of the
Company pursuant to Section 754 of the Code to adjust the basis of the Company
property in the case of transfers of Units, and the Managing Member shall not
be required to make any such election.


 


(b)           The Managing Member shall cause the Accountants to prepare
and file all state and federal tax returns on a timely basis.


 


5.6          Tax Matters Member.  The Managing Member is hereby designated as
the Tax Matters Member of the Company, which has the meaning of “Tax Matters
Partner” as specified in Section 6231(a)(7) of the Code; provided,
however, in exercising its authority as Tax Matters Member it shall be limited
by the provisions of this Agreement affecting tax aspects of the Company;


 


15

















 


5.7          Withholding.  Each Member hereby authorizes the Company to
withhold or pay on behalf of or with respect to such Member any amount of
federal, state, local or foreign taxes that the Managing Member determines the
Company is required to withhold or pay with respect to any amount distributable
or allocable to such Member pursuant to this Agreement, including without
limitation any taxes required to be withheld or paid by the Company pursuant to
Sections 1441, 1442, 1445 or 1446 of the Code. Any amount paid on behalf of or
with respect to a Member shall constitute a loan by the Company to such Member,
which loan shall be due within fifteen (15) days after repayment is demanded of
such Member and shall be repaid through withholding of subsequent distributions
to such Member. Any amounts payable by a Member hereunder shall bear interest
at the lesser of (a) the Prime Rate and (b) the maximum lawful rate
of interest on such obligation, such interest to accrue from the date such
amount is due (i.e., fifteen (15) days after demand) until such amount is paid
in full. To the extent the payment or accrual of withholding tax results in a
federal, state or local tax credit to the Company, such credit shall be
allocated to the Member to whose distribution the tax is attributable.


 


ARTICLE VI


 


Rights, Duties and
Restrictions of the Managing Member


 


6.1          Expenditures by Company.  The Managing Member is hereby authorized to
pay compensation for accounting, administrative, legal, technical, management
and other services rendered to the Company. All of the aforesaid expenditures
shall be made on behalf of the Company, and the Managing Member shall be
entitled to reimbursement by the Company for any expenditures incurred by it on
behalf of the Company which shall be made other than out of the funds of the
Company. The Company also shall assume, and pay when due, all Administrative
Expenses.


 


6.2          Powers and Duties of Managing Member.  The Managing Member shall be responsible for
the management of the Company’s business and affairs. Except as otherwise
herein expressly provided, the Managing Member shall have, and is hereby granted,
full, complete and exclusive power, authority and discretion under all
circumstances to manage the business of the Company and to take all actions for
and on behalf of the Company and in its name as the Managing Member shall, in
its sole and absolute discretion, deem necessary or appropriate to carry out
the purposes for which the Company was organized. Except as otherwise expressly
provided herein and without limiting the foregoing, the Managing Member shall
have the right, power and authority:


 


(a)           To manage, control, invest, reinvest, acquire by purchase,
lease or otherwise, sell, contract to purchase or sell, grant, obtain, or
exercise options to purchase, options to sell or conversion rights, assign,
transfer, convey, deliver, endorse, exchange, pledge, mortgage, abandon,
improve, repair, maintain, insure, lease for any term and otherwise deal with
any and all property of whatsoever kind and nature, and wheresoever situated,
in furtherance of the purposes of the Company;


 


(b)           To acquire, directly or indirectly, interests in real
estate of any kind and of any type, and any and all kinds of interests therein,
and to determine the mariner in which


 


16






 










 


title thereto is to be held;
to manage, insure against loss, protect and subdivide any of the real estate,
interests therein or parts thereof; to improve, develop or redevelop any such
real estate; to participate in the ownership and development of any property;
to dedicate for public use, to vacate any subdivisions or parts thereof, to
resubdivide, to contract to sell, to grant options to purchase or lease, to
sell on any terms; to convey, to mortgage, pledge or otherwise encumber said
property, or any part thereof; to lease said property or any part thereof from
time to time, upon any terms and for any period of time, and to renew or extend
leases, to amend, change or modify the terms and provisions of any leases and
to grant options to lease and options to renew leases and options to purchase;
to partition or to exchange said real property, or any part thereof, for other
real or personal property; to grant easements or charges of any kind; to
release, convey or assign any right, title or interest in or about or easement
appurtenant to said property or any part thereof; to construct and reconstruct,
remodel, alter, repair, add. to or take from buildings on said premises; to
insure any Person having an interest in or responsibility for the care,
management or repair of such property; to direct the trustee of any land trust
to mortgage, lease, convey or contract to convey the real estate held in such
land trust or to execute and deliver deeds, mortgages, notes, and any and all
documents pertaining to the property subject to such land trust or in any
matter regarding such trust; to execute assignments of all or any part of the
beneficial interest in such land trust;


 


(c)           To employ, engage or contract with or dismiss from
employment or engagement Persons to the extent deemed necessary by the Managing
Member for the operation and management of the Company business, including but
not limited to, the engagement of the Property Manager pursuant to the
Management Agreements and the employment or engagement of other contractors,
subcontractors, engineers, architects, surveyors, mechanics, consultants,
accountants, attorneys, insurance brokers, real estate brokers and others;


 


(d)           To enter into contracts on behalf of the Company;


 


(e)           To borrow money, procure loans and advances from any
Person for Company purposes, and to apply for and secure, from any Person,
credit or accommodations; to contract liabilities and obligations, direct or
contingent and of every kind and nature with or without security; and to repay,
discharge, settle, adjust, compromise, or liquidate any such loan, advance,
credit, obligation or liability;


 


(f)            To pledge, hypothecate, mortgage, assign, deposit,
deliver, enter into sale and leaseback arrangements or otherwise give as
security or as additional or substitute security, or for sale or other
disposition any and all Company property, tangible or intangible, including,
but not limited to, real estate and beneficial interests in land trusts, and to
make substitutions thereof, and to receive any proceeds thereof upon the
release or surrender thereof; to sign, execute and deliver any and all
assignments, deeds and other 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



 


17

















 


instructions and make oral
agreements; and generally to do any and all other acts and things incidental to
any of the foregoing or with reference to any dealings or transactions which
any attorney may deem necessary, proper or advisable;


 


(g)           To acquire and enter into any contract of insurance which
the Managing Member deems necessary or appropriate for the protection of the
Company, for the conservation of the Company’s assets or for any purpose
convenient or beneficial to the Company;


 


(h)           To conduct any and all banking transactions on behalf of
the Company; to adjust and settle checking, savings, and other accounts with
such institutions as the Managing Member shall deem appropriate; to draw, sign,
execute, accept, endorse, guarantee, deliver, receive and pay any checks,
drafts, bills of exchange, acceptances, notes, obligations, undertakings and
other instruments for or relating to the payment of money in, into, or from any
account in the Company’s name; to execute, procure, consent to and authorize
extensions and renewals of the same; to make deposits and withdraw the same and
to negotiate or discount commercial paper, acceptances, negotiable instruments,
bills of exchange and dollar drafts;


 


(i)            To demand, sue for, receive, and otherwise take steps to
collect or recover all debts, rents, proceeds, interests, dividends, goods,
chattels, income from property, damages and all other property, to which the
Company may be entitled or which are or may become due the Company from any
Person; to commence, prosecute or enforce, or to defend, answer or oppose,
contest and abandon all legal proceedings in which the Company is or may
hereafter be interested; and to settle, compromise or submit to arbitration any
accounts, debts, claims, disputes and matters which may arise between the
Company and any other Person and to grant an extension of time for the payment
or satisfaction thereof on any terms, with or without security;


 


(j)            To make arrangements for financing, including the taking
of all action deemed necessary or appropriate by the Managing Member to cause
any approved loans to be closed;


 


(k)           To take all reasonable measures necessary to insure
compliance by the Company with applicable arrangements, and other contractual
obligations and arrangements entered into by the Company from time to time in
accordance with the provisions of this Agreement, including periodic reports as
required to lenders and using all due diligence to insure that the Company is
in compliance with its contractual obligations;


 


(l)            To maintain the Company’s books and records;


 


(m)          To prepare and deliver, or cause to be prepared and
delivered by the Company’s Accountants, all financial and other reports with
respect to the operations of the Company, and preparation and filing of all
Federal and state tax returns and reports; and


 


18

















 


(n)           Any and all other actions that the Managing Member, in its
sole and absolute discretion, may deem necessary or appropriate in furtherance
of the business of the Company.


 


The
Managing Member shall not have any obligations hereunder except to the extent
that Company funds are reasonably available to it for the performance of such
duties, and nothing herein contained shall be deemed to authorize or require
the Managing Member, in its capacity as such, to expend its individual funds
for payment to third parties or to undertake any individual liability or
obligation on behalf of the Company. Subject to the terms of Section 4.3
and the terms of any other Preferred Units, the merger or consolidation of the
Company with or into another Entity shall be authorized by the Consent of the
Holders of Common Units.


 


6.3          Proscriptions.  The Managing Member shall not have the
authority to:


 


(a)           Do any act in contravention of this Agreement or which
would make it impossible to carry on the ordinary business of the Company
(other than a sale of all or substantially all of the Company assets or the
dissolution of the Company, each of which is within the power and authority of
the Managing Member and do not require the consent of the Members;


 


(b)           Possess any Company property or assign rights in specific
Company property for other than Company purposes; or


 


(c)           Do any act in contravention of applicable law.


 


Nothing
herein contained shall impose any obligation on any Person or firm doing
business with the Company to inquire as to whether or not the Managing Member
has properly exercised its authority in executing any contract, lease,
mortgage, deed or other instrument or document on behalf of the Company, and
any such third Person shall be fully protected in relying upon such authority.


 


6.4          Title Holder.  To the extent allowable under applicable law,
title to all or any part of the properties of the Company may be held in the
name of the Company or any other individual, corporation, partnership, trust or
otherwise, the beneficial interest in which shall at all times be vested in the
Company, Any such title holder shall perform any and all of its respective
functions to the extent and upon such terms and conditions as may be determined
from time to time by the Managing Member.


 


6.5          Compensation of the Managing Member.  The Managing Member shall not be entitled to
any compensation for services rendered to the Company solely in its capacity as
Managing Member except with respect to reimbursement for those costs and
expenses constituting Administrative Expenses.


 


6.6          Waiver and Indemnification.


 


(a)           Neither the Managing Member nor any Person acting on its
behalf, pursuant hereto, shall be liable, responsible or accountable in damages
or otherwise to the Company or to any Member for any acts or omissions
performed or omitted to be 


 


19

















 


performed by them (whether
on, prior to or after the date hereof) within the scope of the authority
conferred upon the Managing Member by this Agreement and the Act; provided
that (i) the Managing Member’s or such other Person’s conduct or omission
to act was taken in good faith and in the belief that such conduct or omission
was in the best interests of the Company and (ii) the Managing Member or
such other Person shall not be guilty of fraud, willful misconduct or gross
negligence. The Company shall, and hereby does, indemnify and hold harmless the
Managing Member and its Affiliates and any individual acting on their behalf
from any loss, damage, claim or liability, including, but not limited to,
reasonable attorneys’ fees and expenses, incurred by them by reason of any act
performed or omitted to be performed by them (whether on, prior to or after the
date hereof) in accordance with the standards set forth above or in enforcing
the provisions of this indemnity; provided, however, no Member
shall have any personal liability with respect to the foregoing
indemnification, any such indemnification to be satisfied solely out of the
assets of the Company.


 


(b)           Any Person entitled to indemnification under this
Agreement shall be entitled to receive, upon application therefor, advances to
cover the costs of defending any proceeding against such Person; provided,
however, that such advances shall be repaid to the Company, without
interest, if such Person is found by a court of competent jurisdiction upon
entry of a final judgment not to be entitled to such indemnification. All
rights of the indemnitee hereunder shall survive the dissolution of the
Company. The indemnification rights contained in this Agreement shall be
cumulative of, and in addition to, any and all rights, remedies and recourse to
which the person seeking indemnification shall be entitled, whether at law or
at equity. Indemnification pursuant to this Agreement shall be made solely and
entirely from the assets of the Company and no Member shall be liable therefor.


 


(c)           The provisions of this Section 6.6 also shall apply
to the Liquidating Trustee and the Tax Matters Member.


 


6.7          Operation in Accordance with REIT Requirements.  The Members acknowledge and agree that the
Company shall be operated in a manner that will enable GGPI and the REIT
Subsidiaries to (a) satisfy the REIT Requirements and (b) avoid the
imposition of any federal income or excise tax liability. The Company shall
avoid taking any action, or permitting any Property Partnership to take any
action, which would result in GGPI and the REIT Subsidiaries ceasing to satisfy
the REIT Requirements or would result in the imposition of any federal income
or excise tax liability on GGPI and the REIT Subsidiaries.


 


6.8          Duties and Conflicts.  The Managing Member only shall be required to
devote such time to the management of the business of the Company as it deems
necessary to promote the interests of the Company. Each Member recognizes that
the other Members (including the Managing Member) and their Affiliates have or
may hereafter have other business interests, activities and investments, some
of which may be in conflict or competition with the business or properties of
the Company, and that such Persons are entitled to carry on such other business
interests, activities and investments. The Members (including the Managing
Member) and their Affiliates may engage in or possess an interest in any other
business or venture of any kind, independently or with others, on their own behalf
or on behalf of other entities with which they 


 


20

















 


are affiliated or associated, and such persons may
engage in any activities, whether or not competitive with the Company, without
any obligation to offer any interest in such activities to the Company or to
any Member. Neither the Company nor any Member shall have any right, by virtue
of this Agreement, in or to such activities, or the income or profits derived
therefrom, and the pursuit of such activities, even if competitive with the
business of the Company, shall not be deemed wrongful or improper. Without
limiting the foregoing, each Member recognizes that (a) the Managing
Member and/or its Affiliates (other than the Company and its Subsidiaries) own,
independently and/or with others, direct and/or indirect interests in Shopping
Center Projects in which the Company and its Subsidiaries have no interest and
which may be in conflict or competition with the business or properties of the
Company and its Subsidiaries, (b) the Managing Member intends to continue
to conduct and expand such business and activities and (c) the Managing
Member and its Affiliates (other than the Company and its Subsidiaries) are
entitled to carry on such other business and activities and own such properties
without any obligation to offer any interest in such business, activities or
properties to the Company or to any Member.


 


ARTICLE VII


 


Dissolution, Liquidation
and Winding-Up


 


7.1          Accounting.  In the event of the dissolution, liquidation
and winding-up of the Company, a proper accounting (which shall be certified)
shall be made of the Capital Account of each Member and of the Net Profits or
Net Losses of the Company from the date of the last previous accounting to the
date of dissolution. Financial statements presenting such accounting shall
include a report of a certified public accountant selected by the Liquidating
Trustee.


 


7.2          Distribution on Dissolution.  In the event of the dissolution and
liquidation of the Company for any reason, the assets of the Company shall be
liquidated for distribution in the following rank and order:


 


(a)           Payment of creditors of the Company (other than Members)
in the order of priority as provided by law;


 


(b)           Establishment of reserves as provided by the Managing
Member to provide for contingent liabilities, if any;


 


(c)           Payment of debts of the Company to Members, if any, in the
order of priority provided by law; and


 


(d)           Payment to holders of Units in accordance with their
Capital Accounts.


 


Whenever
the Liquidating Trustee reasonably determines that any reserves established
pursuant to paragraph (b) above are in excess of the reasonable
requirements of the Company, the amount determined to be excess shall be
distributed to the Members in accordance with the above provisions.


 


7.3          Timing Requirements.  In the event that the Company is “liquidated”
within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations, any and all distributions to the 


 


21

















 


Members pursuant to Section 7.2(d) hereof
shall be made no later than the later to occur of (i) the last day of the
taxable year of the Company in which such liquidation occurs or (ii) ninety
(90) days after the date of such liquidation.


 


7.4          Sale of Company Assets.  In the event of the liquidation of the
Company in accordance with the terms of this Agreement, the Liquidating Trustee
may sell Company or Property Partnership property if the Liquidating Trustee
has in good faith solicited bids from unrelated third parties and obtained
independent appraisals before making any such sale; provided, however, all
sales, leases, encumbrances or transfers of Company assets shall be made by the
Liquidating Trustee solely on an “arm’s-length” basis, at the best price and on
the best terms and conditions as the Liquidating Trustee in good faith believes
are reasonably available at the time and under the circumstances and on a
non-recourse basis to the Members. The liquidation of the Company shall not be
deemed finally terminated until the Company shall have received cash payments
in full with respect to obligations such as notes, installment sale contracts
or other similar receivables received by the Company in connection with the
sale of Company assets and all obligations of the Company have been satisfied.
The Liquidating Trustee shall continue to act to enforce all of the rights of
the Company pursuant to any such obligations until paid in full.


 


7.5          Distributions in Kind.  In the event that it becomes necessary to
make a distribution of Company property in kind, the Managing Member may
transfer and convey such property to the distributees as tenants in common,
subject to any liabilities attached thereto, so as to vest in them undivided
interests in the whole of such property in proportion to their respective
rights to share in the proceeds of the sale of such property (other than as a
creditor) in accordance with the provisions of Section 7.2 hereof.


 


7.6          Documentation of Liquidation.  Upon the completion of the dissolution and
liquidation of the Company, the Company shall terminate and the Liquidating
Trustee shall have the authority to execute and record any and all documents or
instruments required to effect the dissolution, liquidation and termination of
the Company.


 


7.7          Negative Capital Accounts.  No Member shall be liable to the Company or
to any other Member for any deficit or negative balance which may exist in its
Capital Account.


 


7.8          DAI Contribution Obligation.  Notwithstanding any other provision of this
Agreement (including Schedule B to this Agreement):


 


(a)           Upon liquidation of the Company, in the event that the
Gross Asset Value Available to Pay Recourse Liabilities and Exculpatory
Liabilities is less than One Hundred Million Dollars ($100,000,000), DAI shall
make a Capital Contribution to the Company of cash in immediately available
funds equal to the least of (i) One Hundred Million Dollars
($100,000,000), (ii) the amount by which One Hundred Million Dollars
($100,000,000) exceeds the Gross Asset Value Available to Pay Recourse
Liabilities and Exculpatory Liabilities and (iii) the aggregate amount of
Recourse Liabilities and Exculpatory Liabilities outstanding immediately prior
to the liquidation of the Company. Such amount shall be used to pay Recourse
Liabilities and/or Exculpatory Liabilities or 


 


22

















 


shall be distributed to
Members other than DAI in accordance with their positive Capital Account
balances.


 


(b)           DAI shall make any Capital Contribution required to be
made by it pursuant to this Section 7.8 no later than the later to occur
of (i) the last day of the taxable year of the Company in which such
liquidation occurs or (ii) 90 days after the date of such liquidation.


 


(c)           Any Capital Contribution made by DAI pursuant to this Section 7.8
and the associated Capital Account credit shall be taken into account in
allocating Net Income and Net Loss and other items of income, gain, loss and
deduction for the taxable year of liquidation.


 


(d)           DAI shall not be subrogated to the rights of any creditor
or other person receiving the proceeds of the Capital Contribution made by DAI
pursuant to this Section 7.8 against the Managing Member, the Company,
another Member or any person. DAI hereby waives any right to reimbursement,
contribution or similar right to which DAI might otherwise be entitled as a
result of the performance of its obligations under this Section 7.8.


 


(e)           Section 4.4 and Section 4.6 hereof shall not
apply with respect to DAI’s obligations pursuant to this Section 7.8.


 


(f)            The parties intend that DAI shall bear the economic risk
of loss within the meaning of Section 1.752-2(a) of the Regulations
with respect to an amount of Exculpatory Liabilities and/or Recourse
Liabilities equal to the lesser of One Hundred Million Dollars ($100,000,000)
and the aggregate amount of Recourse Liabilities and Exculpatory Liabilities,
and this Section 7.8 and other relevant provisions of this Agreement shall
be interpreted and applied in a manner consistent therewith.


 


(g)           Notwithstanding any other provision of this Agreement, at
any time on or after June 1, 2005, DAI may terminate the DAI Contribution
Obligation by providing twelve (12) months’ prior written notice to the
Company, provided however that the DAI Contribution Obligation shall not
terminate if during the twelve (12) month period following such notice there
has been:


 


(i)            An entry of a decree or order for relief in respect of
the Company by a court having jurisdiction over a substantial part of the
Company’s assets, or the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Company or
of any substantial part of its property, or ordering the winding up or
liquidation of the Company’s affairs, in an involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law; or


 


(ii)           The commencement against the Company of an involuntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law;
or


 


23

















 


(iii)          The commencement by the Company of a voluntary case under
the federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
consent by it to the entry of an order for relief in an involuntary case under
any such law or the consent by it to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
the making by it of a general assignment for the benefit of creditors, or the
failure of Company generally to pay its debts as such debts become due or the
taking of any action in furtherance of any of the foregoing;


 


provided
that, after the passage of such 12 months, DAI shall cease to be liable for the
DAI Contribution Obligation, at the first time, if any, that the appointment,
case or proceeding referred to in Section 7.8(g)(i) through (iii) above
has terminated.


 


(h)           As a result of the transfer of all or a portion of the Series C
Preferred Units to a Permitted DAI Transferee (as defined in Schedule B)
pursuant to Section 7 of Schedule B, the transferor shall continue
to be obligated for the entire amount of the DAI Contribution Obligation except
to the extent that such Permitted DAI Transferee agrees to assume all or a
portion of such transferor’s obligation under the DAI Contribution Obligation.
In the event of such a transfer to and assumption by the Permitted DAI
Transferee, (1) the transferor and the Permitted DAI Transferee assuming
the obligation under the DAI Contribution Obligation shall notify the Company
that the Permitted DAI Transferee has assumed all or a portion of the DAI
Contribution Obligation in connection with such transfer, and (2) this
Agreement shall be amended to reflect such Permitted DAI Transferee’s
assumption of all or a portion of the DAI Contribution Obligation. Except to
the extent that the Permitted DAI Transferee assumes all or a portion of the
obligation under the DAI Contribution Obligation in accordance with this Section 7.8(h),
the transferor shall not be relieved of such obligation and shall continue to
be obligated under the DAI Contribution Obligation notwithstanding the transfer
and to the same extent as if the transfer had not occurred. Following the
transfer of Series C Preferred Units to GGPI or the Managing Member
pursuant to Section 6 of Schedule B, the transferor shall continue
to be obligated for the entire amount of the DAI Contribution Obligation in
accordance with its terms and neither GGPI nor the Managing Member shall have
any liability therefor.


 


ARTICLE VIII


 


Transfer of Units


 


8.1          Managing Member Transfer.  The Managing Member shall not withdraw from
the Company and shall not sell, assign, pledge, encumber or otherwise dispose
of all or any portion of its Units without the Consent of the Holders of Common
Units (except that the Managing Member may sell, assign or transfer its
interest to an Affiliate without the consent of the Members). Upon any transfer
of Units in accordance with the provisions of this Section 8.1, the
transferee Managing Member shall become vested with the powers and rights of
the transferor Managing Member, and shall be liable for all obligations and
responsible for all duties of the Managing Member, once such transferee has
executed such instruments as may be 


 


24

















 


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 Units so acquired. It is a
condition to any transfer otherwise permitted hereunder that the transferee
assumes by operation of law or express agreement all of the obligations of the
transferor Managing Member under this Agreement with respect to such
transferred Units and no such transfer (other than pursuant to a statutory
merger or consolidation wherein all obligations and liabilities of the
transferor Managing Member are assumed by a successor corporation by operation
of law) shall relieve the transferor Managing Member of its obligations under
this Agreement without the Consent of the Holders of the Common Units, in their
reasonable discretion.  In the event the
Managing Member withdraws from the Company, in violation of this Agreement or
otherwise, or dissolves or terminates, a Majority in Interest of the Common
Units may elect to continue the Company business by selecting a substitute
Managing Member.


 


8.2          Transfers in Other Members.  Except as otherwise provided herein, no
Member (other than the Managing Member) shall have the right to transfer all or
a portion of its Units to any Person without the written consent of the
Managing Member, which consent may be given or withheld in the sole discretion
of the Managing Member. It is a condition to any transfer otherwise permitted
hereunder that the transferee assumes by operation of law or express agreement
all of the obligations of the transferor Member under this Agreement with
respect to such transferred Units and no such transfer (other than pursuant to
a statutory merger or consolidation wherein all obligations and liabilities of
the transferor Member are assumed by a successor corporation by operation of
law) shall relieve the transferor Member of its obligations under this
Agreement without the approval of the Managing Member, which may be given or
withheld in its sole discretion. Upon such transfer, the transferee shall be
admitted as a substituted member of the Company (the “Substituted Member”)
and shall succeed to all of the rights of the transferor Member under this
Agreement in the place and stead of such transferor Member. Any transferee,
whether or not admitted as a Substituted Member, shall take subject to the
obligations of the transferor hereunder. Unless admitted as a Substituted Member,
no transferee, whether by a voluntary transfer, by operation of law or
otherwise, shall have rights hereunder, other than to receive such portion of
the distributions made by the Company as are allocable to the Units
transferred.


 


8.3          Restrictions on Transfer.  In addition to any other restrictions on
transfer herein contained, in no event may any transfer or assignment of Units
by any Member be made (a) to any Person who lacks the legal right, power
or capacity to own Units; (b) in violation of any provision of any
mortgage or trust deed (or the note or bond secured thereby) constituting a
Lien against a Property or any part thereof, or other instrument, document or
agreement to which the Company or any Property Partnership is a party or
otherwise bound; (c) in violation of applicable law; (d) unless such
assignment or transfer is made pursuant to an effective registration statement
under the Securities Act of 1933, as amended, or is exempt from registration
thereunder; (e) of any component portion of a Unit, such as the Capital
Account, or rights to Net Operating Cash Flow, separate and apart from all
other components of such Unit, (f) in the event such transfer would cause
GGPI and the REIT Subsidiaries to cease to comply with the REIT Requirements, (g) if
such transfer would cause a termination of the Company for federal income tax
purposes, (h) if such transfer would, in the opinion of counsel to the
Company, cause the Company to cease to be classified as a partnership for
Federal income tax purposes, cause the Company to fail to satisfy the safe
harbor requirements of Section 1.7704-1(j) of the Regulations during
2002 


 


25

















 


or cause the Company to have more than 100 partners
within the meaning of Reg. §1.7704-1(h), or (i) if such transfer would, in
the opinion of counsel to the Company, cause any assets of the Company to
constitute assets of any employee benefit plan pursuant to Department of Labor
Regulations Section 2510.3-101, as modified by Section 3(42) of the
Employee Retirement Income Security Act of 1974, as amended.


 


8.4          Bankruptcy of a Member.  The Bankruptcy of any Member (other than the
Managing Member) shall not cause a dissolution of the Company, but the rights
of such Member to share in the Net Profits or Net Losses of the Company and to
receive distributions of Company funds shall, on the happening of such event,
devolve on its successors or assigns, subject to the terms and conditions of
this Agreement, and the Company shall continue as a limited liability company.
However, in no event shall such assignee(s) become a Substituted Member
without the written consent of the Managing Member.


 


ARTICLE IX


 


Arbitration of Disputes


 


9.1          Arbitration.  Notwithstanding anything to the contrary
contained in this Agreement, all claims, disputes and controversies between the
parties hereto (including, without limitation, any claims, disputes and
controversies between the Company and any one or more of the Members and any
claims, disputes and controversies between any one or more Members) arising out
of or in connection with this Agreement or the Company shall be resolved by
binding arbitration in Chicago, Illinois, in accordance with this Article IX
and, to the extent not inconsistent herewith, the Expedited Procedures and
Commercial Arbitration Rules of the American Arbitration Association,


 


9.2          Procedures.  Any arbitration called for by this Article IX
shall be conducted in accordance with the following procedures:


 


(a)           The Company or any Member (the “Requesting Party”)
may demand arbitration pursuant to Section 9.1 at any time by giving
written notice of such demand (the “Demand Notice”) to all other Members
and (if the Requesting Party is not the Company) to the Company which Demand
Notice shall describe in reasonable detail the nature of the claim, dispute or
controversy.


 


(b)           Within fifteen (15) days after the giving of a Demand
Notice, the Requesting Party, on the one hand, and each of the other Members
and/or the Company against whom the claim has been made or with respect to
which a dispute has arisen (collectively, the “Responding Party”), on
the other hand, shall select and designate in writing to the other party one
reputable, disinterested individual (a “Qualified Individual”) willing
to act as an arbitrator of the claim, dispute or controversy in question. Each
of the Requesting Party and the Responding Party shall use their best efforts
to select a lawyer or retired judge having no affiliation with any of the
parties as their respective Qualified Individual. Within fifteen (15) days
after the foregoing selections have been made, the arbitrators so selected
shall jointly select a lawyer or retired judge having no affiliation with any
of the parties as the third Qualified Individual


 


26






 










 


willing to act as an
arbitrator of the claim, dispute or controversy in question. In the event that
the two arbitrators initially selected are unable to agree on a third
arbitrator within the second fifteen (15) day period referred to above, then,
on the application of either party, the American Arbitration Association shall
promptly select and appoint a lawyer or retired judge having no affiliation
with any of the parties as the Qualified Individual to act as the third
arbitrator. The three arbitrators selected pursuant to this subsection (b) shall
constitute the arbitration panel for the arbitration in question.


 


(c)                                  The
presentations of the parties hereto in the arbitration proceeding shall be
commenced and completed within sixty (60) days after the selection of the
arbitration panel pursuant to subsection (b) above, and the arbitration
panel shall render its decision in writing within thirty (30) days after the
completion of such presentations. Any decision concurred in by any two (2) of
the arbitrators shall constitute the decision of the arbitration panel, and
unanimity shall not be required.


 


(d)                                 The arbitration
panel shall have the discretion to include in its decision a direction that all
or part of the attorneys’ fees and costs of any party or parties and/or the
costs of such arbitration be paid by any other party or parties. On the
application of a party before or after the initial decision of the arbitration
panel, and proof of its attorneys’ fees and costs, the arbitration panel shall
order the other party to make any payments directed pursuant to the preceding
sentence.


 


9.3                               Binding
Character.  Any
decision rendered by the arbitration panel pursuant to this Article IX
shall be final and binding on the parties hereto, and judgment thereon may be
entered by any state or federal court of competent jurisdiction.


 


9.4                               Exclusivity.  Arbitration shall be the exclusive method
available for resolution of claims, disputes and controversies described in Section 9.1,
and the Company and its Members stipulate that the provisions hereof shall be a
complete defense to any suit, action, or proceeding in any court or before any
administrative or arbitration tribunal with respect to any such claim,
controversy or dispute. The provisions of this Article IX shall survive
the dissolution of the Company. Notwithstanding the foregoing, the parties may
seek injunctive relief or similar relief from a court of competent jurisdiction
in New York, New York before an arbitration panel has been appointed.


 


9.5                               No
Alteration of Agreement.  Nothing contained herein shall be deemed to
give the arbitrators any authority, power or right to alter, change, amend,
modify, add to, or subtract from any of the provisions of this Agreement.


 


ARTICLE X


 


General Provisions


 


10.1                        Notices.  Except as otherwise provided herein, all
notices, offers or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and may be personally served,
delivered by nationally recognized overnight courier, telecopied or sent by
registered or certified United States mail, postage prepaid and properly
addressed, and 


 


27

















 


shall be deemed to have been given when delivered in
person or by nationally recognized courier or registered or certified U.S. mail
or upon receipt of telecopy by the appropriate party. For purposes of this Section 10.1,
the addresses of the parties hereto shall be as set forth opposite their names
on the signature pages thereto. The address of any party hereto may be
changed by a notice in writing given in accordance with the provisions hereof.


 


10.2                        Successors.  This Agreement and all the terms and
provisions hereof shall be binding upon and shall inure to the benefit of all
Members, and their legal representatives, heirs, successors and permitted
assigns, except as expressly herein otherwise provided.


 


10.3                        Effect
and Interpretation.  This
Agreement shall be governed by and construed in conformity with the laws of the
State of Delaware (without regard to its conflicts of law principles, which
might result in the application of the laws of any other jurisdiction).


 


10.4                        Counterparts.  This Agreement may be executed in
counterparts, each of which shall be an original, but all of which shall
constitute one and the same document and all signatures need not appear on the
same page.


 


10.5                        Members
Not Agents.  Nothing
contained herein shall be construed to constitute any Member the agent of
another Member, except as specifically provided herein, or in any manner to
limit the Members in the carrying on of their own respective businesses or
activities.


 


10.6                        Entire
Understanding; Etc.  This
Agreement constitutes the entire agreement and understanding among the Members
and supersedes any prior understandings and/or written or oral agreements among
them respecting the subject matter within (including without limitation the
Original Agreement).


 


10.7                        Amendments.  Except as otherwise provided herein
(including the provisions of Section 4.3), this Agreement may not be amended,
and no provision may be waived, except by a written instrument signed by the
holders of a Majority in Interest of the Common Units.


 


10.8                        Severability.  If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid by such court, shall not be affected thereby.


 


10.9                        Trust
Provision.  This
Agreement, to the extent executed by the trustee of a trust, is executed by
such trustee solely as trustee and not in a separate capacity. Nothing herein
contained shall create any liability on, or require the performance of any
covenant by, any such trustee individually, nor shall anything contained herein
subject the individual personal property of any trustee to any liability.


 


10.10                 Issuance
of Certificates Representing Units.  The Managing Member may, in its sole
discretion, issue certificates representing all or a portion of the Units of
one or more Members and, in such event, the Managing Member shall establish
such rules and regulations relating to issuances and reissuances of
certificates upon transfer of Units, the division of Units 


 


28

















 


among multiple certificates and the loss, theft,
destruction or mutilation of certificates as the Managing Member reasonably
deems appropriate.


 


10.11                 Specific
Performance.  The parties
agree that irreparable damage will result in the event that this Agreement is
not specifically enforced, and the parties agree that any damages available at
law for a breach of this Agreement would not be an adequate remedy. Therefore,
the provisions hereof and the obligations of the parties hereunder shall be
enforceable in a court of equity or other tribunal with jurisdiction by a
decree of specific performance, and appropriate injunctive relief may be
applied for and granted in connection therewith. Such remedies shall, however,
be cumulative and not exclusive and shall be in addition to any other remedies
which a party may have under this Agreement or otherwise.


 


10.12                 Power
of Attorney.  Each Member
hereby irrevocably constitutes and appoints the Managing Member his or its true
and lawful attorney-in-fact, in his or its name, place and stead with full
power of substitution, to consent to, make, execute, sign, acknowledge, swear
to, record and file, on behalf of such Member and/or on behalf of the Company,
the following:


 


(a)                                 this Agreement,
any certificate of foreign limited liability company, any certificate of doing
business under an assumed name, and any other certificates or instruments which
may be required to be filed by the Company or such Member under the laws of the
State of Delaware or any other jurisdiction the laws of which may be
applicable;


 


(b)                                 a certificate
of cancellation of the Certificate of Formation of the Company and such other
instruments or documents as may be deemed necessary or desirable by said
attorneys upon the termination of the Company;


 


(c)                                  any and all
amendments or restatements of the documents described in subsections (a) and
(b) above, provided such amendments are either required by law, are
necessary to correct statements herein or therein, or are consistent with this
Agreement (including without limitation any amendments referred to in Sections
4.1 and 4.2); and


 


(d)                                 any and all
such other documents as may be deemed necessary or desirable by said attorney
to carry out fully the provisions of this Agreement and as are consistent with
the terms hereof.


 


The
foregoing grant of authority: (i) is a special power of attorney coupled
with an interest, is irrevocable and shall survive the death or incapacity of
each member and (ii) shall survive the delivery of an assignment by a
Member of the whole or any portion of his or its Units.


 


[REMAINDER OF PAGE LEFT
INTENTIONALLY BLANK]


 


29

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, and GGPI has
executed this Agreement solely for the purpose of binding itself under Section 6
of Schedule B, as of the date and year first above written.


 


	
   

  	
  MANAGING
  MEMBER:

  
	
   

  	
   

  
	
   

  	
  GGP
  LIMITED PARTNERSHIP, a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:
    [General Growth Properties, Inc.,] a
  Delaware corporation, its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  110
  North Wacker Drive

  
	
   

  	
   

  	
  Chicago, Illinois
  60606

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  
	
   

  	
  GGPI:

  
	
   

  	
   

  
	
   

  	
  GENERAL
  GROWTH PROPERTIES, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  110
  North Wacker Drive

  
	
   

  	
   

  	
  Chicago, Illinois
  60606

  
	
   

  	
   

  	
  Attention:

  
						



 


[Signature Page to Third Amended and Restated Operating Agreement]


 

















 


SCHEDULE A


TO THE

THIRD AMENDED AND RESTATED OPERATING AGREEMENT

OF

GGPLP L.L.C.


 


	
  Member

  	
   

  	
  Common Units

  	
   

  	
  Preferred Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GGP Limited Partnership

  	
   

  	
  [                    

  	
  ](1)

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DA Retail Investments, LLC

  	
   

  	
  0

  	
   

  	
  20,000 Series C Preferred Units(2)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  [                    

  	
  ]

  	
   

  	
   

  



 






(1) 
Represents 100% of all Common Units


(2) 
Represents 100% of all Series C Preferred Units


 

















 


SCHEDULE B

TO THE

THIRD AMENDED AND RESTATED OPERATING AGREEMENT

OF

GGPLP L.L.C.


 


Designation, Preferences and
Rights of Series C Preferred Units


 


1.                                    Designation and Number; Etc.  The Series C Preferred Units have been
established and shall have such rights, preferences, limitations and
qualifications as are described herein (in addition to the rights, preferences,
limitations and qualifications contained in the Agreement to the extent
applicable).  The authorized number of Series C
Preferred Units shall be 20,000. 
Notwithstanding anything to the contrary contained herein, in the event
of a conflict between the provisions of this Schedule B and any other
provision of the Agreement, the provisions of this Schedule B shall
control.  Series C Preferred Units
shall not have any relative, participating, optional or other special rights
and powers other than as set forth herein.


 


2.                                    Rank of the Series C Preferred Units.  The Series C Preferred Units shall, with
respect to distribution rights and rights upon liquidation, dissolution or
winding up of the Company, rank as follows:


 


(a)                                 senior to all
classes or series of Common Units and all series of Preferred Units that are
not referred to in Section 2(b) or (c) of this Schedule B
(the Common Units and the Preferred Units ranking junior to the Series C
Preferred Units with respect to distribution rights and rights upon
liquidation, dissolution and winding up, collectively, “Series C Junior
Units”);


 


(b)                                 on parity with
each other series of Preferred Units that is hereafter created and that
provides by its express terms that it ranks on parity with the Series C
Preferred Units as to distribution rights and rights upon liquidation,
dissolution and winding-up of the Company (the “Series C Parity Units”);
and


 


(c)                                  junior to any
class or series of Preferred Units that is hereafter established, that provides
by its express terms that it ranks senior to the Series C Preferred Units
and that is approved in accordance with the provisions of Section 3 of
this Schedule B.


 


3.                                    Voting.  The Company
shall not, without the affirmative vote or consent of the holders of at least
fifty-one percent (51%) of the Series C Preferred Units outstanding at
such time, (a) reclassify any Common Units into Preferred Units ranking
senior to or on parity with the Series C Preferred Units with respect to
the payment of distributions or distribution of assets upon liquidation,
dissolution or winding-up of the Company, (b) issue additional Series C
Preferred Units or (c) amend, alter or repeal this Section 3 or any
other provisions of this Schedule B or the Agreement, whether by merger,
consolidation or otherwise (a “Series C Event”), so as to negate
the provisions of clause (a) or (b) of this paragraph or materially
and adversely affect any special right, preference, privilege or voting power
of the holders of the Series C Preferred Units.  Notwithstanding anything to the contrary
contained herein, each of the following shall be deemed not to materially and
adversely affect such rights, preferences, privileges or voting power and shall
not require the vote or consent of the holders of the Series C 


 


B-1

















 


Preferred Units: 
(A) the occurrence of any of the Series C Events set forth in
clause (c) of this paragraph so long as Series C Preferred Units
remain outstanding with the terms thereof materially unchanged (taking into
account that, upon the occurrence of such Series C Event, the Company may
not be the surviving entity) and the surviving entity is a Qualified Entity,
(B) the authorization or creation of, or the increase in the authorized or
issued amount of, the Common Units or any other series of Preferred Units,
whether ranking senior or junior to or on parity with the Series C
Preferred Units (and any amendments to the Agreement to effect such increase,
creation or issuance), provided that no such action alters the parity of the Series C
Preferred Units with each other series of Preferred Units that is hereafter
created and that provides by its express terms that it ranks on parity with the
Series C Preferred Units, and (C) the liquidation, dissolution and
winding-up of the Company.


 


For
purposes of the provisions of this Section 3, each Series C Preferred
Unit shall have one (1) vote.


 


Notwithstanding
anything to the contrary contained herein, the foregoing voting provisions
shall not apply if, prior to the time when the act with respect to which such
vote would otherwise be required shall be effected, all outstanding Series C
Preferred Units shall have been exchanged or redeemed.


 


Except
as provided herein, the holders of Series C Preferred Units shall have no
voting or consent rights or other rights to participate in the management of
the Company or to receive notices of meetings.


 


4.                                    Distributions.


 


(a)                                 Payment of
Distributions.  Each holder
of Series C Preferred Units will be entitled to receive, when, as and if
declared by the Managing Member, out of Net Operating Cash Flow and subject to
the right to payment of the holders of Preferred Units ranking senior to or on
parity with the Series C Preferred Units, cumulative preferential cash
distributions per Series C Preferred Unit at the rate per annum of 8.25%
of the $250 base liquidation preference thereof (or $5.15625 per quarter) (the “Series C
Preferred Unit Distribution”).  Series C
Preferred Unit Distributions with respect to any Series C Preferred Units
shall be cumulative, shall accrue from the date of the issuance of such Series C
Preferred Units and will be payable (i) quarterly when, as and if
authorized and declared by the Managing Member, in arrears, on the 15th day of
January, April, July and October of each year and (ii) in the
event of an exchange or redemption of Series C Preferred Units, on the
exchange or redemption date, as applicable (each a “Series C Preferred
Unit Distribution Payment Date”), commencing on the first of such payment
dates to occur following their original date of issuance.  The amount of distribution per Series C
Preferred Unit accruing in each full quarterly distribution period shall be
computed by dividing the annual distribution rate by four.  The amount of distributions payable for the
initial distribution period or any other period shorter or longer than a full
quarterly distribution period on the Series C Preferred Units will be
computed on the basis of twelve 30-day months and a 360-day year and the actual
number of days elapsed in such a thirty (30) day month.  If any Series C Preferred Unit
Distribution Payment Date is not a Business Day, then payment of the Series C
Preferred Unit Distribution to be made on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of 


 


B-2

















 


such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day (without any deduction), in each case with
the same force and effect as if made on such date.  Series C Preferred Unit Distributions
will be made to the holders of Series C Preferred Units of record on the
relevant record dates, which will be fifteen (15) days prior to the relevant Series C
Preferred Unit Distribution Payment Date.


 


(b)                                 Distributions
Cumulative. 
Notwithstanding the foregoing, Series C Preferred Unit
Distributions will accrue whether or not the terms and provisions of the
Agreement or any other agreement of the Company at any time prohibit the
current payment of distributions, whether or not the Company has revenues,
whether or not there are funds legally available for the payment of such
distributions and whether or not such distributions are authorized.  Accrued but unpaid Series C Preferred
Unit Distributions will accumulate as of the Series C Preferred Unit
Distribution Payment Date on which they first become payable.  Any accrued but unpaid Series C
Preferred Unit Distributions that are not paid on or prior to the date that
they first become payable are hereinafter referred to as “Series C
Accumulated Preferred Unit Distributions.” 
No interest or sum of money in. lieu of interest will be payable in
respect of any Series C Accumulated Preferred Unit Distributions.  Series C Accumulated Preferred Unit
Distributions may be declared and paid at any time, without reference to any
regular Series C Preferred Unit Distribution Payment Date.


 


(c)                                  Priority as to
Distributions.


 


(i)                                     So long as any Series C
Preferred Units are outstanding, no distribution of cash or other property
shall be authorized, declared, paid or set apart for payment on or with respect
to any Series C Parity Units, nor shall any cash or other property be set
aside for or applied to the purchase, redemption or other acquisition for
consideration of any Series C Parity Units, unless, in each case, all Series C
Accumulated Preferred Unit Distributions have been paid in full (or have been
declared and a sum sufficient for such payment has been set aside therefor) or
when Series C Accumulated Preferred Unit Distributions are not paid in
full or a sum sufficient for such payment is not set apart, as aforesaid, all
distributions declared upon Series C Preferred Units and all distributions
declared upon any other series or class or classes of Series C Parity
Units shall be declared ratably in proportion to the respective amounts of
distributions accumulated and unpaid on the Series C Preferred Units and
such Series C Parity Units.


 


(ii)                                  So long as any Series C
Preferred Units are outstanding, no distribution of cash or other property
(other than distributions paid solely in Series C Junior Units or options,
warrants or other rights to subscribe for or purchase Series C Junior
Units) shall be authorized, declared, paid or set apart for payment on or with
respect to any class or series of Series C Junior Units nor shall any cash
or other property be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series C Junior Units (other
than consideration paid solely in Series C Junior Units or options,
warrants or other rights to subscribe for or purchase Series C Junior
Units) unless, in each case, all Series C Accumulated Preferred Unit
Distributions have been paid in full or have been declared and a sum sufficient
for payment thereof has been set aside therefor.


 


B-3

















 


(iii)                               So long as
there are Series C Accumulated Preferred Unit Distributions (and a sum
sufficient for full payment of Series C Accumulated Preferred Unit
Distributions is not so set apart), all future Series C Preferred Unit
Distributions shall be authorized and declared so that the amount of Series C
Preferred Unit Distributions per Series C Preferred Unit shall in all
cases bear to each other the same ratio that Series C Accumulated
Preferred Unit Distributions per Series C Preferred Unit bear to each
other.


 


(iv)                              Notwithstanding
anything to the contrary set forth herein, distributions on Units held by the
Managing Member ranking junior to or on parity with the Series C Preferred
Units may be made, without preserving the priority of distributions described
in Sections 4(c)(i) and (ii) of this Schedule B, but only to
the extent such distributions are required to preserve the REIT status of GGPI
and the REIT Subsidiaries.


 


(d)                                 No Further
Rights.  Except as provided in Section 5
hereof, holders of Series C Preferred Units shall not be entitled to any
distributions, whether payable in cash, other property or otherwise, in excess
of the Series C Preferred Unit Distributions (and any Series C
Accumulated Preferred Unit Distributions) described herein.


 


5.                                    Liquidation Preference.


 


(a)                                 Payment to
Holders of Series C Preferred Units.  In the event of any liquidation., dissolution
or winding up of the Company, whether voluntary or involuntary, and subject to
the right to payment of holders of Preferred Units ranking senior to or on
parity with the Series C Preferred Units, before any payment or
distribution of the assets of the Company shall be made to or set apart for the
holders of Series C Junior Units, each holder of the Series C
Preferred Units shall be entitled to receive an amount equal to such holder’s
Capital Account in respect of its Series C Preferred Units, but the
holders of Series C Preferred Units shall not be entitled to any further
payment in respect of their Series C Preferred Units.  If, upon any such liquidation, dissolution or
winding up of the Company, the assets of the Company, or proceeds thereof,
distributable to the holders of Series C Preferred Units shall be
insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other Series C Parity Units, then such assets, or the
proceeds thereof, shall be distributed among the holders of the Series C Preferred
Units and the holders of any such other Series C Parity Units ratably in
accordance with the respective amounts that would be payable on such Series C
Preferred Units and any such other Series C Parity Units if all amounts
payable thereon were paid in full.  For
the purposes of this Section 5, none of a consolidation or merger of the
Company with or into one or more entities, a merger of an entity with or into
the Company, a statutory share exchange by the Company or a sale, lease or
conveyance of all or substantially all of the Company’s assets shall be deemed
to be a liquidation, dissolution or winding up, voluntary or involuntary, of
the Company.


 


(b)                                 Payments to
Holders of Series C Junior Units.  Subject to the rights of the holders of Series C
Parity Units, after payment shall have been made in full to the holders of the Series C
Preferred Units as provided in this Section 5, any series or class or
classes of Series C Junior Units shall, subject to any respective terms
and provisions applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the Series C
Preferred Units shall not be entitled to share therein.


 


B-4

















 


6.                                    Exchange Rights.


 


(a)                                 Right to
Exchange.


 


(i)                                     Subject to the
other terms and conditions of this Section 6, Series C Preferred
Units will be exchangeable in whole but not in part with GGPI at any time on or
after June 1, 2012, at the option of the holders of at least fifty-one
percent (51%) of all outstanding Series C Preferred Units, for authorized
but previously unissued Common Shares (and in the event such option is
exercised, such exercise and the Series C Exchange Notice (as defined
below) given in connection therewith shall be deemed to apply to all issued and
outstanding Series C Preferred Units and the holders thereof).  Each holder of Series C Preferred Units
will be entitled to receive for each Series C Preferred Unit held by it a
number of Common Shares equal to the quotient of the Capital Account relating
to such Series C Preferred Unit (adjusted and booked up or down to reflect
fair market value of Company assets through the exchange closing date) (the
amount of such Capital Account, the “Series C Exchange Price”)
divided by the Current Per Share Market Price as of the Trading Day immediately
preceding the exchange closing date. 
This exchange right is only exercisable if, at the time of exercise, the
fair market value of the Company’s assets exceeds the Company’s liabilities
(and any preferred security claims senior to the Series C Preferred Units)
by an amount at least equal to twice the sum of (1) the aggregate Capital
Accounts of all holders of Series C Preferred Units plus (2) the
aggregate Capital Accounts of all holders of Series C Parity Units.


 


(ii)                                  Notwithstanding
anything to the contrary set forth in Section 6(a)(i) of this Schedule
B, if a Series C Exchange Notice has been delivered to the Managing
Member and GGPI, then the Managing Member or GGPI may at its option, within ten
(10) Business Days after receipt of the Series C Exchange Notice,
elect to purchase or cause the Company to redeem all or a portion of the
outstanding Series C Preferred Units for cash at the Series C
Exchange Price per Series C Preferred Unit.  If such election by GGPI is made with respect
to fewer than all of the outstanding Series C Preferred Units, the number
of Series C Preferred Units held by each holder of Series C Preferred
Units to be redeemed or purchased shall equal such holder’s pro rata share
(based on the percentage of the aggregate number of outstanding Series C
Preferred Units that the total number of Series C Preferred Units held by
such holder of Series C Preferred Units represents) of the aggregate
number of Series C Preferred Units being redeemed or purchased.  An election by the Managing Member or GGPI
under this Section shall be effected by delivering notice thereof to the
holders identified in the Series C Exchange Notice.


 


(iii)                               If an exchange
of all Series C Preferred Units pursuant to Section 6(a)(i) of
this Schedule B would violate the provisions on ownership limitation of
GGPI set forth in its Charter and such ownership limitation is not waived by
GGPI, each holder of Series C Preferred Units shall be entitled to exchange
the maximum number of Series C Preferred Units which would comply with the
provisions on the ownership limitation of GGPI, and any Series C Preferred
Units not so exchanged shall be purchased by GGPI


 


B-5






 










 


or redeemed by the Company
for cash in an amount determined in the manner set forth in subsection (ii) of
this Section 6(a).


 


(iv)                              If an exchange
of all Series C Preferred Units pursuant to Section 6(a)(i) of
this Schedule B is prohibited by virtue of the holder of the Series C
Preferred Units being unable to make such customary representations and
warranties as may be reasonably necessary for the Managing Member or GGPI to
establish that the issuance of Common Shares pursuant to the exchange shall not
be required to be registered under the Securities Act or any applicable state
securities laws pursuant to Section 6(b)(i) below, any Series C
Preferred Units not so exchanged shall be purchased by GGPI or redeemed by the
Company for cash in an amount determined in the manner set forth in subsection (ii) of
this Section 6(a).


 


(b)                                 Procedure for
Exchange and/or Redemption of Series C Preferred Units.


 


(i)                                     The exchange
right only may be exercised pursuant to a written notice of exchange (the “Series C
Exchange Notice”) delivered to the Managing Member and GGPI by holders of Series C
Preferred Units owning at least fifty-one percent (51%) of the outstanding Series C
Preferred Units by fax and certified mail postage prepaid.  The closing of the exchange, purchase and/or
redemption pursuant to this Section 6 shall occur within fifteen (15)
Business Days following the giving of the Series C Exchange Notice.  At the closing, the exchanging holder(s) shall
deliver such instruments of transfer and other documents as GGPI or the
Managing Member may reasonably request, and GGPI and/or the Company shall
deliver to the exchanging holder(s) certificates representing the Common
Shares and/or the cash redemption and/or purchase price.  Notwithstanding anything to the contrary contained
herein, any and all Series C Preferred Units to be exchanged for Common
Shares pursuant to this Section shall be so exchanged in a single
transaction at one time.  As a condition
to the exercise of the rights contained in this Section 6, each holder of Series C
Preferred Units shall make such customary representations and warranties as may
be reasonably necessary for the Managing Member or GGPI to establish that the
issuance of Common Shares pursuant to the exchange shall not be required to be
registered under the Securities Act or any applicable state securities laws,
including without limitation representations and warranties that such holder is
an accredited investor as such term is defined in Rule 501 of Regulation D
promulgated pursuant to the Securities Act and that such holder is acquiring
such Common Shares for investment, solely for its own account and not with a
view to or for the resale or distribution thereof (other than pursuant to the
Registration Statement, as defined below); provided, however, that in the event
a holder is unable to make such representations, the condition shall be deemed
satisfied with respect to such holder by virtue of Section 6(a)(iv).  Any Common Shares issued pursuant to this Section to
a holder of Series C Preferred Units shall be delivered as shares which
are duly authorized, validly issued, fully paid and nonassessable, free of any
pledge, lien, encumbrance or restriction other than those provided in the
Charter or the by-laws of GGPI, the Securities Act or relevant state securities
or blue sky laws or created by, through or under such holder, and any Series C
Preferred Units as to which the exchange right has been exercised shall be free
of any pledge, lien, encumbrance or restriction other than those provided in
the Agreement, the Securities Act and relevant state securities or blue sky
laws (and the 


 


B-6

















 


parties shall make
representations and warranties to the other to such effect).  Subject to the provisions of Section 6(c) of
this Schedule B, the certificates representing the Common Shares issued
upon exchange of the Series C Preferred Units shall, in addition to any
legend required by the Charter, contain the following legend:


 


THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
(A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”) OR (B) IF THE CORPORATION HAS
BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER OF THE
SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE SATISFACTORY TO THE CORPORATION,
THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE
RULES AND REGULATIONS THEREUNDER.


 


(ii)                                  In the event of
an exchange of Series C Preferred Units, an amount equal to the Series C
Accumulated Preferred Unit Distributions to the date of exchange on any Series C
Preferred Units tendered for exchange shall continue to accrue on such Series C
Preferred Units, which remain outstanding following such exchange, with the
Managing Member as the holder of such Series C Preferred Units (GGPI
having contributed the Series C Preferred Units to the Managing
Member).  Fractional Common Shares are
not to be issued upon exchange but, in lieu thereof, the Managing Member will
pay a cash adjustment based upon the Current Per Share Market Price as of the
exchange closing date.


 


(iii)                               During the thirty
day period ending on the closing of any exchange, purchase and/or redemption
pursuant to this Section 6, the holders of Series C Preferred Units
shall not, directly or indirectly, buy or sell (including without limitation
short-sell) any Common Shares, whether in the open market or in a negotiated
transaction.


 


(c)                                  Registration of
Common Shares.


 


(i)                                     As soon as
practicable following the issuance of Common Shares pursuant to this Section 6
(but, subject to the provisions of the last sentence of Section 6(c)(ii) of
this Schedule B, in no event more than 90 days following such issuance),
GGPI shall file a Registration Statement on Form S-3 or other appropriate
registration form (the “Registration Statement”) with the SEC covering
the resale by the initial holders of such Common Shares (the “Initial
Holders”) and shall use its reasonable best efforts to cause the
Registration Statement to become effective as soon as practicable
thereafter.  Following the effective date
of the Registration Statement and until the Common Shares covered by the
Registration Statement have been sold or are eligible for resale under Rule 144(k) promulgated
under the Securities Act, GGPI shall keep the Registration Statement current,
effective and available for the resale by the Initial Holders of the Common 


 


B-7

















 


Shares delivered to them
pursuant to this Section 6.  GGPI
shall bear all expenses relating to filing such Registration Statement and
keeping such Registration Statement current, effective and available; provided,
however, that GGPI shall not be responsible for any brokerage fees or
underwriting commissions due and payable by any holder of such Common Shares.


 


(ii)                                During the time
period when the Registration Statement is required to be current, effective and
available under Section 6(c)(i) of this Schedule B, GGPI also
shall:


 


(1)                                 prepare and
file with the SEC such amendments and supplements to the Registration Statement
and the prospectus constituting a part thereof, as amended or supplemented (the
“Prospectus”), as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the sale of the Common Shares covered by such Registration Statement
whenever any Initial Holder shall desire to sell or otherwise dispose of the
same but in no event beyond the period in which the Registration Statement is
required to be kept in effect under Section 6(c)(i) of this Schedule
B;


 


(2)                                 furnish to each
Initial Holder, without charge, such number of authorized copies of the
Prospectus, and any amendments or supplements to the Prospectus, in conformity
with the requirements of the Securities Act, and such other documents as any
Initial Holder may reasonably request in order to facilitate the public sale or
other disposition of the Common Shares owned by the Initial Holders.


 


(3)                                 register or
qualify the securities covered by the Registration Statement under state
securities or blue sky laws of such jurisdictions as are reasonably required to
effect a sale thereof and do any and all other acts and things which may be
necessary or appropriate under such state securities or blue sky laws to enable
the Initial Holders to consummate the public sale or other disposition in such
jurisdictions of such securities;


 


(4)                                 before filing
any amendments or supplements to the Registration Statement or the Prospectus,
furnish copies of all such documents proposed to be filed to the Initial
Holders who shall be afforded a reasonable opportunity to review and comment
thereon; provided, however, that all such documents shall be
subject to the approval of the Initial Holders insofar as they relate to
information concerning the Initial Holders (including, without limitation, the
proposed method of distribution of any Initial Holder’s securities);


 


(5)                                 notify the
Initial Holders promptly (A) when any such Registration Statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (B) of any request by the SEC or any state securities
authority for amendments and supplements to such Registration Statement and the
Prospectus or for additional information, (C) of the issuance by the SEC
or any state securities authority of any stop order suspending the 


 


B-8

















 


effectiveness of any such
Registration Statement or the initiation of any proceedings for the purpose,
(D) it between the effective date of any such Registration Statement and
the sale of the Common Shares to which it relates, GGPI receives any
notification with respect to the suspension of the qualification of the Common
Shares or initiation of any proceeding for such purpose, and (E) of the
happening of any event during the period such Registration Statement is
effective which in the judgment of GGPI makes any statement made in the
Registration Statement or the Prospectus untrue in any material respect or
which requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading;


 


(6)                                 use its
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest practicable time;


 


(7)                                 cooperate with
each Initial Holder to facilitate the timely preparation and delivery of
certificates representing Common Shares being sold, which certificates shall
not bear any restrictive legends, provided the Common Shares evidenced thereby
have been sold in a manner permitted by the Prospectus; and


 


(8)                                 upon the
occurrence of any event contemplated by Section 6(c)(ii)(5)(E) hereof,
promptly prepare and file a supplement or post-effective amendment to the
Registration Statement or the Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Common Shares, the Prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein in light of the circumstances
under which they were made, not misleading.


 


Notwithstanding
anything to the contrary contained herein, the obligation to prepare and file
the Registration Statement or any supplement or post-effective amendment
thereto and any other obligations of GGPI hereunder shall be suspended if GGPI,
relying upon advice of counsel, determines that disclosure of any information
required to be included therein would be adverse to its interests, but such
suspension shall not extend beyond 120 days with respect to any such specified
event.


 


(iii)                               GGPI hereby
agrees to indemnify and hold harmless each Initial Holder and each person, if
any, who controls such Initial Holder (within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act) from and against
any and all losses, claims, damages, costs and expenses (including reasonable
attorneys’ fees) (“Claims”) to which such Initial Holder or such
controlling person may become subject, under the Securities Act or otherwise,
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to Make the
statements therein not misleading, and shall reimburse such Initial Holder and
each such 


 


B-9

















 


controlling person for any
legal or other expenses reasonably incurred by such Initial Holder in
connection with investigating or defending any such loss as such expenses are
incurred; provided, however, that GGPI shall not be liable
insofar as any such losses, claims, damages, costs and expenses (including
reasonable attorneys’ fees) are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information furnished in
writing to GGPI by any Initial Holder expressly for use therein.  Each Initial Holder agrees to indemnify and
hold harmless GGPI and each person, if any, who controls GGPI (within the
meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) from and against any and all Claims to which GGPI or such
controlling person may become subject, under the Securities Act or otherwise,
caused by any untrue statement or omission or alleged untrue statement or
omission based upon such information furnished in writing to GGPI by such
Initial Holder.


 


(iv)                              Each Initial
Holder agrees that, upon receipt of any notice from GGPI of the happening of
any event of the kind described in Section 6(c)(ii)(5)(E), such Initial
Holder will forthwith discontinue disposition of securities pursuant to the
Registration Statement until such Initial Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(ii)(8).


 


(d)                                 No Other
Exchange Rights.  The Series C
Preferred Units are not convertible into or redeemable or exchangeable for any
other property or securities. of GGPI, the Managing Member, the Company or any
other Person at the option of any holder of Series C Preferred Units
except as expressly provided in this Section 6 or in that certain Debt
Maintenance Agreement by and between the Company and DAI of even date herewith.


 


7.                                    Transfers. 
Notwithstanding anything to the contrary contained in the Agreement,
DAI, and any Permitted DAI Transferee (hereinafter defined) pursuant to this Section 7,
may sell, assign or otherwise transfer all but not part of its Series C Preferred
Units to a single Permitted DAI Transferee, without the consent of the Managing
Member; provided, however, that (i) no such sale, conveyance
or other transfer may be made unless the requirements of Section 8.3 of
the Agreement (other than Section 8.3(b) thereof) and the second and
fourth sentences of Section 8.2 of the Agreement are satisfied with
respect to such sale, conveyance or other transfer, (ii) such Series C
Preferred Units are held by one person for purposes of Treasury Regulation
§ 1.7704-1(h)(1)(ii), taking into account the “look-through” rules of
Treas. Reg. § 1.7704-1(h)(3), (iii) the transferor and transferee
provide the Company with representations and covenants reasonably satisfactory
to the Company to assure the Company that the requirements described in (ii) above
will be satisfied immediately after the transfer and at all times thereafter
and (iv) the organizational documents of the proposed transferee prohibit
the issuance or the transfer of any membership or other equity interests in
such transferee if such transferee would thereafter be treated as owned by more
than 14 persons under Treas. Reg. § 1.7704-1(h)(1), taking into account
the look through rules of Treas. Reg. § 1.7704-1(h)(3).  For this purpose, a “Permitted DAI Transferee”
shall mean a transferee pursuant to this Section 7 that is any Person or
Entity that is an Affiliate of DAI or a transferee pursuant to this Section 7
that is any Person or Entity that is an Affiliate of a Permitted DAI Transferee
who was the transferee of Series C Preferred Units pursuant to this Section 7
by virtue of having itself constituted an Affiliate of DAI.  In addition, DAI and each Permitted DAI
Transferee respectively covenants on 


 


B-10

















 


behalf of themselves and their respective direct or
indirect equity owners that no issuances of membership or equity interests or
transfers of membership or equity interests in DAI or any DAI Permitted
Transferee or any Person owning a direct or indirect equity interest in either
shall be made or effective if the Series C Preferred Units held by DAI or
the DAI Permitted Transferee would thereafter be treated as owned by more than
14 persons under Treas. Reg. § 1.7704-1(h)(1), taking into account the
look through rules of Treas. Reg. § 1.7704-1(h)(3).


 


B-11

















 


EXHIBIT A


TO THE


THIRD AMENDED AND RESTATED
OPERATING AGREEMENT

OF


GGPLP L.L.C.


 


Allocations


 


1.                                    Allocation of
Net Income and Net Loss.


 


(a)                               Net Income.  Except as otherwise provided herein, Net
Income for any fiscal year or other applicable period shall be allocated in the
following order and priority:


 


(1)                                 First, to each
Member holding Common Units in proportion to, and to the extent of, the excess
of (i) the cumulative amount of Net Loss allocated with respect to such
Common Units pursuant to paragraph (b)(5) below for all prior periods over
(ii) the cumulative amount of Net Income allocated with respect to such
Common Units pursuant to this paragraph (a)(1) for all prior periods;


 


(2)                                 Second, to each
Member holding Preferred Units until the cumulative Net Income allocated with
respect to each Preferred Unit pursuant to this paragraph (a)(2) for such
period and all prior periods equals the cumulative Net Loss allocated with
respect to each such Preferred Unit pursuant to paragraph (b)(4) below for
all prior periods (such allocation to be among the Members holding Preferred
Units in the reverse order that such Net Loss was allocated to them);


 


(3)                                 Third, to each Member
holding Preferred Units in proportion to, and to the extent of, the excess of (i) the
cumulative amount of accrued distributions with respect to such Preferred Units
for such period and all prior periods (whether or not declared or paid) over (ii) the
cumulative amount of Net Income allocated with respect to such Preferred Units
pursuant to this paragraph (a)(3) for all prior periods (net of the
cumulative Net Loss, if any, allocated with respect to such Preferred Units
pursuant to paragraph (b)(3) hereof for all prior periods);


 


(4)                                 Fourth, to each
Member holding Common Units until the cumulative Net Income allocated with
respect to each Common Unit pursuant to this paragraph (a)(4) for such
period and all prior periods equals the cumulative Net Loss allocated with
respect to each such Common Unit pursuant to paragraph (b)(2) below for
all prior, periods (such allocation to be among the Members holding Common
Units in the reverse order that such Net Loss was allocated to them); and


 


(5)                                 Thereafter, the
balance of the Net Income, if any, shall be allocated among the Members holding
Common Units in proportion to the number of Common Units held by them.


 


(b)                               Net Loss.  Except as otherwise provided herein, Net Loss
of the Company for each fiscal year or other applicable period shall be
allocated as follows:


 

















 


(1)                                 First, to the
Members holding Common Units, until the cumulative amount of Net Loss allocated
with respect to each Common Unit under this paragraph (b)(1) for such
period and all prior periods equals the cumulative amount of Net Income
allocated to such Common Unit pursuant to paragraph (a)(5) for all prior
periods;


 


(2)                                 Second, to the
holders of Common Units in proportion to the number of Common Units held by
them (provided, however, that to the extent any Net Loss allocated to a Member
holding Common Units under this paragraph (b)(2) would cause such Member
(hereinafter, a “Restricted Member”) to have an Adjusted Capital Account
Deficit as of the end of the fiscal year to which such Net Loss relates, such
Net Loss shall not be allocated to such Restricted Member but shall instead, to
the extent possible, be allocated to the other Member(s) holding Common
Units (hereinafter, the “Permitted Members”) pro rata in accordance with
the Common Units held by all Permitted Members (for this purpose, a Member’s
Adjusted Capital Account Deficit shall be determined by considering only those
adjustments to such Member’s capital account (including any adjustments for
capital contributed) that were made in respect of the Member’s Common Units));


 


(3)                                 Third, to the
Members holding Preferred Units in proportion to, and to the extent of, the
excess of (i) the cumulative Net Income allocated with respect to each
Preferred Unit pursuant to paragraph (a)(3) hereof for all prior periods
over (ii) the cumulative distributions made with respect to each such
Preferred Unit pursuant to Section 5.2(b) of the Agreement for the
current and all prior periods;


 


(4)                                 Fourth, to the
Members holding Preferred Units in proportion to the number of Preferred Units
held by them (provided, however, that to the extent any Net Loss allocated to a
Member holding Preferred Units under this paragraph (b)(2) would cause
such Member (hereinafter, a “Restricted Preferred Member”) to have an
Adjusted Capital Account Deficit as of the end of the fiscal year to which such
Net Loss relates, such Net Loss shall not be allocated to such Restricted
Preferred Member but shall instead, to the extent possible, be allocated to the
other Member(s) holding Preferred Units (hereinafter, the “Permitted
Preferred Members”) pro rata in accordance with the Preferred Units held by
all Permitted Preferred Members (for this purpose, a Member’s Adjusted Capital
Account Deficit shall be determined by considering only those adjustments to
such Member’s capital account (including any adjustments for capital
contributed) that were made in respect of the Member’s Preferred Units)); and


 


(5)                                 Fifth, to the
holders of Common Units in proportion to the number of Common Units held by
them.


 


2.                                    Special
Allocations.


 


Notwithstanding any provisions of paragraph 1 of this Exhibit A,
the following special allocations shall be made in the following order:


 


(a)                                 Minimum Gain
Chargeback (Nonrecourse Liabilities).  If there is a net decrease in Partnership
Minimum Gain for any Company fiscal year (except as a result of conversion or 


 


A-2

















 


refinancing of Company indebtedness, certain capital
contributions or revaluation of the Company property as further outlined in
Regulation Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each Member shall be
specially allocated items of Company income and gain for such year (and, if
necessary, subsequent years) in an amount equal to that Member’s share of the
net decrease in Partnership Minimum Gain. 
The items to be so allocated shall be determined in accordance with
Regulation Section 1.704-2(f).  This
paragraph (a) is intended to comply with the minimum gain chargeback
requirement in said section of the Regulations and shall be interpreted
consistently therewith.  Allocations
pursuant to this paragraph (a) shall be made in proportion to the
respective amounts required to be allocated to each Member pursuant hereto.


 


(b)                                 Minimum Gain
Attributable to Partner Nonrecourse Debt.  If there is a net decrease in Minimum Gain
Attributable to Partner Nonrecourse Debt during any fiscal year (other than due
to the conversion, refinancing or other change in the debt instrument causing
it to become partially or wholly nonrecourse, certain capital contributions, or
certain revaluations of Company property as further outlined in Regulation Section 1.704-2(i)(4)),
each Member shall be specially allocated items of Company income and gain for
such year (and, if necessary, subsequent years) in an amount equal to that
Member’s share of the net decrease in the Minimum Gain Attributable to Partner
Nonrecourse Debt.  The items to be so
allocated shall be determined in accordance with Regulation Section 1.704-2(i)(4) and
(j)(2).  This paragraph (b) is
intended to comply with the minimum gain chargeback requirement with respect to
Partner Nonrecourse Debt contained in said section of the Regulations and shall
be interpreted consistently therewith. 
Allocations pursuant to this paragraph (b) shall be made in
proportion to the respective amounts required to be allocated to each Member
pursuant hereto.


 


(c)                                  Qualified
Income Offset.  In the
event a Member unexpectedly receives any adjustments, allocations or
distributions described in Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or
(6), and such Member has an Adjusted Capital Account Deficit, items of Company
income and gain shall be specially allocated to such Member in an amount and
manner sufficient to eliminate the Adjusted Capital Account Deficit as quickly
as possible.  This paragraph (c) is
intended to constitute a “qualified income offset” under Regulation Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.


 


(d)                                 Nonrecourse
Deductions.  Nonrecourse
Deductions for any fiscal year or other applicable period shall be allocated
among the Members holding Common Units in proportion to the number of Common
Units held.


 


(e)                                  Partner
Nonrecourse Deductions. 
Partner Nonrecourse Deductions for any fiscal year or other applicable
period shall be specially allocated to the Member that bears the economic risk
of loss for the debt (i.e., the Partner Nonrecourse Debt) to which such Partner
Nonrecourse Deductions are attributable (as determined under Regulation Section 1.704-2(b)(4) and
(i)(1)).


 


(f)                                   Curative
Allocations.  The
Regulatory Allocations shall be taken into account in allocating other items of
income, gain, loss and deduction among the Members so that, to the extent
possible, the cumulative net amount of allocations of Company items under
paragraphs 1 and 2 of this Exhibit A shall be equal to the net
amount that would have been allocated to each Member if the Regulatory
Allocations had not occurred.  This
paragraph (f) is intended to 


 


A-3

















 


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 for by subsections (a) through
(e) of this Section 2.


 


3.                                    Tax Allocations.


 


(a)                                 Generally.  Subject to paragraphs (b) and (c) hereof,
items of income, gain, loss, deduction and credit to be allocated for income
tax purposes (collectively, “Tax Items”) shall be allocated among the Members
on the same basis as their respective book items.


 


(b)                                 Sections
1245/1250 Recapture.  If any
portion of gain from the sale of property is treated as ordinary income by virtue
of the application of Code Sections 1245 or 1250 (“Affected Gain”), then (A) such
Affected Gain shall be allocated among the Members in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated and (B) other Tax Items of gain of the same character that
would have been recognized, but for the application of Code Sections 1245
and/or 1250, shall be allocated away from those Members who are allocated
Affected Gain pursuant to Clause (A) so that, to the extent possible, the
other Members are allocated the same amount, and type, of capital gain that
would have been allocated to them had Code Sections 1245 and/or 1250 not
applied.  For purposes hereof, in order to
determine the proportionate allocations of depreciation and amortization
deductions for each fiscal year or other applicable period, such deductions
shall be deemed allocated on the same basis as Net Income and Net Loss for such
respective period.


 


(c)                                  Allocations
Respecting Section 704(c) and Revaluations; Curative Allocations
Resulting from the Ceiling Rule.  Notwithstanding paragraph (b) hereof,
Tax Items with respect to Company property that is subject to Code Section 704(c) and/or
Regulation Section 1.704-3 (collectively “Section 704(c) Tax
Items”) shall be allocated in accordance with said Code Section and/or
Regulation Section 1,704-3, as the case may be.  The allocation of Tax Items shall be in
accordance with the “traditional method” set forth in Regulation Section 1.704-3(b)(1),
unless otherwise determined by the Managing Member, and shall be subject to the
ceiling rule stated in Regulation Section 1.704-3(b)(1).  The Managing Member is authorized to
specially allocate Tax Items (other than the Section 704(c) Tax
Items) to cure for the effect of the ceiling rule.


 


A-4