Exhibit 10.1


 


FOURTEENTH AMENDMENT


TO


SECOND AMENDED AND RESTATED


AGREEMENT OF LIMITED PARTNERSHIP


OF


GGP LIMITED PARTNERSHIP


 


THIS FOURTEENTH AMENDMENT (this “Amendment”)
is made and entered into on
                
    , 2010 by and among the undersigned parties:


 


WHEREAS, a Delaware limited partnership known as GGP
Limited Partnership (the “Partnership”) exists pursuant to that certain
Second Amended and Restated Agreement of Limited Partnership dated as of April 1,
1998, as amended (“Second Restated Limited Partnership Agreement”), and
the Delaware Revised Uniform Limited Partnership Act;


 


WHEREAS, General Growth Properties, Inc., a Delaware
corporation, is the sole general partner of the Partnership (the “General
Partner”);


 


WHEREAS, on April 16, 2009, the General Partner and
the Partnership 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 General Partner and the
Partnership’s emergence from the Chapter 11 Cases, it is proposed that all of
the issued and outstanding shares of common stock, par value $0.01 per share,
of The Howard Research and Development Corporation, a Maryland corporation (“HRD”),
be distributed by the Partnership to the General Partner (the “HRD
Distribution”);


 


WHEREAS, in connection with the General Partner and the
Partnership’s emergence from the Chapter 11 Cases, shares of common stock, no
par value, of Spinco, Inc., a Delaware corporation and a wholly-owned
subsidiary of the Partnership (“Spinco”), will be distributed (the “Spinco
Distribution”) to the holders of Units (as defined in the Second Restated
Limited Partnership Agreement) in a manner such that upon emergence of the
Partnership and the General Partner from the Chapter 11 Cases, each of the
holders of Units (other than the General Partner) and each holder of shares of
common stock of the General Partner will hold the same number of shares of
common stock of Spinco as each such holder would have held if each of the
holders of Units (other than the General Partner) had converted (in accordance
with its existing contractual rights) its respective Units into shares of
common stock of the General Partner immediately prior to the HRD/Spinco
Distribution;


 


WHEREAS, after contributing certain assets to HRD, the
General Partner proposes to contribute its shares of common stock of HRD to
Spinco in exchange for additional shares of common stock of Spinco (the “Contribution”);


 

















 


WHEREAS, the HRD Distribution, the Spinco
Distribution and the Contribution, taken together, will result in the pro rata
ownership, directly or indirectly, of Spinco and HRD by the holders of Units;
and


 


WHEREAS, the General Partner and a Majority-In-Interest of
the Limited Partners of the Partnership desire to adopt this Amendment and
provide for the HRD Distribution and the Spinco Distribution.


 


NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto, intending legally to be bound, do hereby  agree as follows:


 


1.       Capitalized Terms.  Capitalized terms used but
not defined herein shall have the definitions assigned to such terms in the
Second Restated Limited Partnership Agreement, as amended.


 


2.       Amendments.  Notwithstanding anything to
the contrary in the Second Restated Limited Partnership Agreement, including
but not limited to Section 6.3(c), the Second Restated Limited Partnership
Agreement shall be amended as follows:


 


a.               The following defined term
is added to Section 1.1 of the Second Restated Limited Partnership
Agreement:


 


““Chapter
11 Cases” shall mean those voluntary petitions filed on April 16, 2009
by the General Partner and the Partnership for relief under title 11 of the
United States Code in the United States Bankruptcy Court for the Southern
District of New York.”


 


b.              The following new Section 5.2(c) is
added to the Second Restated Limited Partnership Agreement:


 


“The
General Partner may, in connection with the emergence of the General Partner
and the Partnership from the Chapter 11 Cases, make a non-pro rata distribution
of shares of common stock of each of The Howard Research and Development
Corporation, a Maryland corporation (“HRD”), and Spinco, Inc., a
Delaware corporation (“Spinco”) (the “HRD/Spinco Distribution”).  The HRD/Spinco Distribution shall consist of (a) the
distribution of all of the issued and outstanding shares of common stock, par
value $0.01 per share, of HRD by the Partnership to the General Partner and (b) the
distribution of shares of common stock, no par value, of Spinco by the
Partnership to the holders of Units.  For
the avoidance of doubt, following the HRD/Spinco Distribution, upon emergence
of the Partnership and the General Partner from the Chapter 11 Cases, each of
the holders of Units (other than the General Partner) and each holder of shares
of common stock of the General Partner will hold the same number of shares of
common stock of Spinco as each such 


 


2

















 


holder
would have held if each of the holders of Units (other than the General
Partner) had converted (in accordance with its existing contractual rights) its
respective Units into shares of common stock of the General Partner immediately
prior to the HRD/Spinco Distribution.”


 


3.       Counterparts.  This Amendment may be executed in
counterparts, each of which shall be an original and all of which together
shall constitute the same document.


 


4.       Other Provisions
Unaffected.  Except as
expressly amended hereby, the Second Restated Limited Partnership Agreement
shall remain in full force an effect.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 


3

















 


WITNESS
WHEREOF, the parties hereto have executed this Amendment on the date first
written above.


 


 


	
   

  	
  GENERAL
  PARTNER:

  
	
   

  	
   

  
	
   

  	
  GENERAL GROWTH PROPERTIES, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LIMITED
  PARTNERS:

  
	
   

  	
   

  
	
   

  	
  MAJORITY-IN-INTEREST
  OF

  
	
   

  	
  THE
  LIMITED PARTNERS:

  
	
   

  	
   

  
	
   

  	
  M.B.
  CAPITAL UNITS, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  M.B.
  CAPITAL PARTNERS III,

  
	
   

  	
   

  	
  a
  South Dakota general partnership,

  
	
   

  	
   

  	
  its
  sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  General
  Trust Company,

  
	
   

  	
   

  	
   

  	
  as
  Trustee of MBA Trust,

  
	
   

  	
   

  	
   

  	
  a
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  E.
  Michael Greaves,

  
	
   

  	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MATTHEW
  BUCKSBAUM REVOCABLE TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  General
  Trust Company,

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  E.
  Michael Greaves,

  
	
   

  	
   

  	
   

  	
  Vice
  President

  



 






 










 


THIRD AMENDED AND RESTATED


 


AGREEMENT OF LIMITED PARTNERSHIP


 


OF


 


GGP LIMITED PARTNERSHIP


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS; ETC.

  	
  2

  
	
  1.1

  	
  Definitions

  	
  2

  
	
  1.2

  	
  Exhibits,
  Etc.

  	
  15

  
	
  ARTICLE II

  	
  CONTINUATION

  	
  15

  
	
  2.1

  	
  Continuation

  	
  15

  
	
  2.2

  	
  Name

  	
  15

  
	
  2.3

  	
  Character
  of the Business

  	
  15

  
	
  2.4

  	
  Location
  of the Principal Place of Business

  	
  16

  
	
  2.5

  	
  Registered
  Agent and Registered Office

  	
  16

  
	
  ARTICLE III

  	
  TERM

  	
  16

  
	
  3.1

  	
  Commencement

  	
  16

  
	
  3.2

  	
  Dissolution

  	
  16

  
	
  ARTICLE IV

  	
  CONTRIBUTIONS TO CAPITAL

  	
  17

  
	
  4.1

  	
  General
  Partner and Affiliate Limited Partner Capital Contribution

  	
  17

  
	
  4.2

  	
  Limited
  Partner Capital Contributions

  	
  17

  
	
  4.3

  	
  Additional
  Funds

  	
  17

  
	
  4.4

  	
  Stock
  Plans

  	
  19

  
	
  4.5

  	
  No
  Third Party Beneficiary

  	
  19

  
	
  4.6

  	
  No
  Interest; No Return

  	
  19

  
	
  4.7

  	
  Preferred
  Units

  	
  19

  
	
  ARTICLE V

  	
  ALLOCATIONS AND OTHER TAX AND ACCOUNTING MATTERS

  	
  20

  
	
  5.1

  	
  Allocations

  	
  20

  
	
  5.2

  	
  Distributions
  With Respect to Common Units

  	
  20

  
	
  5.3

  	
  Books
  of Account

  	
  20

  
	
  5.4

  	
  Reports

  	
  21

  
	
  5.5

  	
  Audits

  	
  21

  
	
  5.6

  	
  Tax
  Elections and Returns

  	
  21

  
	
  5.7

  	
  Tax
  Matters Partner

  	
  22

  
	
  5.8

  	
  Withholding

  	
  22

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.9

  	
  Distributions
  with Respect to Preferred Units

  	
  23

  
	
  ARTICLE VI

  	
  RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL
  PARTNER

  	
  23

  
	
  6.1

  	
  Expenditures
  by Partnership

  	
  23

  
	
  6.2

  	
  Powers
  and Duties of General Partner

  	
  23

  
	
  6.3

  	
  Major
  Decisions

  	
  26

  
	
  6.4

  	
  Actions
  with Respect to Certain Documents

  	
  26

  
	
  6.5

  	
  Public
  REIT Participation

  	
  26

  
	
  6.6

  	
  Proscriptions

  	
  27

  
	
  6.7

  	
  Additional
  Partners

  	
  27

  
	
  6.8

  	
  Title
  Holder

  	
  27

  
	
  6.9

  	
  Compensation
  of the General Partner

  	
  27

  
	
  6.10

  	
  Waiver
  and Indemnification

  	
  27

  
	
  6.11

  	
  Limited
  Partner Representatives

  	
  28

  
	
  6.12

  	
  Operation
  in Accordance with REIT Requirements

  	
  28

  
	
  ARTICLE VII

  	
  DISSOLUTION, LIQUIDATION AND WINDING-UP

  	
  29

  
	
  7.1

  	
  Accounting

  	
  29

  
	
  7.2

  	
  Distribution
  on Dissolution

  	
  29

  
	
  7.3

  	
  Timing
  Requirements

  	
  29

  
	
  7.4

  	
  Sale
  of Partnership Assets

  	
  29

  
	
  7.5

  	
  Distributions
  in Kind

  	
  30

  
	
  7.6

  	
  Documentation
  of Liquidation

  	
  30

  
	
  7.7

  	
  Liability
  of the Liquidating Trustee

  	
  30

  
	
  7.8

  	
  Liquidation
  Preference of Preferred Units

  	
  30

  
	
  7.9

  	
  Negative
  Capital Accounts

  	
  31

  
	
  ARTICLE VIII

  	
  TRANSFER OF UNITS

  	
  32

  
	
  8.1

  	
  General
  Partner Transfer

  	
  32

  
	
  8.2

  	
  Transfers
  by Limited Partners

  	
  33

  
	
  8.3

  	
  Issuance
  of Additional Common Units

  	
  33

  
	
  8.4

  	
  Restrictions
  on Transfer

  	
  34

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS

  	
  35

  
	
  9.1

  	
  No
  Participation in Management

  	
  35

  
	
  9.2

  	
  Bankruptcy
  of a Limited Partner

  	
  35

  
	
  9.3

  	
  No
  Withdrawal

  	
  35

  
	
  9.4

  	
  Duties
  and Conflicts

  	
  36

  
	
  ARTICLE X

  	
  LIMITED PARTNER REPRESENTATIONS AND WARRANTIES

  	
  36

  
	
  ARTICLE XI

  	
  GENERAL PARTNER REPRESENTATIONS AND WARRANTIES

  	
  37

  
	
  ARTICLE XII

  	
  ARBITRATION OF DISPUTES

  	
  37

  
	
  12.1

  	
  Arbitration

  	
  37

  
	
  12.2

  	
  Procedures

  	
  37

  
	
  12.3

  	
  Binding
  Character

  	
  38

  
	
  12.4

  	
  Exclusivity

  	
  38

  
	
  12.5

  	
  No
  Alteration of Agreement

  	
  39

  
	
  ARTICLE XIII

  	
  GENERAL PROVISIONS

  	
  39

  
	
  13.1

  	
  Notices

  	
  39

  
	
  13.2

  	
  Successors

  	
  39

  
	
  13.3

  	
  Effect
  and Interpretation

  	
  39

  
	
  13.4

  	
  Counterparts

  	
  39

  
	
  13.5

  	
  Partners
  Not Agents

  	
  39

  
	
  13.6

  	
  Entire
  Understanding; Etc.

  	
  39

  
	
  13.7

  	
  Amendments

  	
  39

  
	
  13.8

  	
  Severability

  	
  40

  
	
  13.9

  	
  Trust
  Provision

  	
  40

  
	
  13.10

  	
  Pronouns
  and Headings

  	
  40

  
	
  13.11

  	
  Assurances

  	
  40

  
	
  13.12

  	
  Issuance
  of Certificates

  	
  40

  
	
  13.13

  	
  November 20,
  2003 Division of Common Units

  	
  41

  
	
  13.14

  	
  Performance
  by the Public REIT

  	
  41

  



 


iii

















 


THIRD AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

GGP LIMITED PARTNERSHIP


 


THIS
THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP 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 partnership known as GGP Limited Partnership (the “Partnership”)
exists pursuant to that certain Second Amended and Restated Agreement of
Limited Partnership dated as of April 1, 1998, as amended by that certain
First Amendment thereto dated June 10, 1998, that certain Second Amendment
thereto dated June 29, 1998, that certain Third Amendment thereto dated as
of February 15, 2002, that certain Amendment thereto dated as of April 24,
2002, that certain Fourth Amendment thereto dated as of July 10, 2002,
that certain Amendment thereto dated as of November 27, 2002, that certain
Sixth Amendment thereto dated as of November 20, 2003, that certain
Amendment thereto dated as of December 11, 2003, that certain Amendment
thereto dated March 5, 2004, that certain Amendment thereto dated November 12,
2004, that certain Amendment thereto dated as of September 30, 2006, that
certain Twelfth Amendment thereto dated as of December 31, 2006, that
certain Thirteenth Amendment thereto dated February 9, 2007 and that
certain Fourteenth Amendment thereto dated as of [          ]
[  ], 2010 (collectively, the “Second Restated Partnership
Agreement”), and the Delaware Revised Uniform Limited Partnership Act;


 


WHEREAS,
GGP, Inc., f/k/a General Growth Properties, Inc., a Delaware
corporation, is the sole general partner of the Partnership (the “General
Partner”);


 


WHEREAS,
pursuant to that certain [Contribution Agreement], GGP Limited Partnership II,
a Delaware limited partnership, will be admitted to the Partnership as a
Limited Partner (the “Affiliate Limited Partner”) and will receive
Common Units and Series F Preferred Units;


 


WHEREAS,
contemporaneously with the admission of the Affiliate Limited Partner, the
General Partner desires to transfer certain of its Units to the Affiliate
Limited Partner (the “GP Transfer”);


 


WHEREAS,
the General Partner and a Majority-in-Interest of the Limited Partners of the
Partnership desire to create and issue the Series F Preferred Units, amend
and restate the Second Restated Partnership Agreement as set forth herein and
consent to the GP Transfer.


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, do hereby create and issue the Series F Preferred
Units, consent to the GP Transfer and amend and restate the Second Restated
Partnership Agreement to read as follows:


 

















 


ARTICLE I


 


Definitions; Etc.


 


1.1           Definitions.  Except as otherwise herein
expressly provided, the following terms and phrases shall have the meanings set
forth below:


 


“Accountants”
shall mean the firm or firms of independent certified public accountants selected
by the General Partner on behalf of the Partnership and the Property
Partnerships to audit the books and records of the Partnership and the Property
Partnerships and to prepare statements and reports in connection therewith.


 


“Acquisition
Cost” shall have the meaning set forth in Section 4.1 hereof.


 


“Act”
shall mean the Revised Uniform Limited Partnership Act as enacted in the State
of Delaware, and as the same may hereafter be amended from time to time.


 


“Additional
Units” shall have the meaning set forth in Section 8.3 hereof.


 


“Additional
Partner” shall have the meaning set forth in Section 8.3 hereof.


 


“Adjusted
Capital Account Deficit” shall mean, with respect to any Limited Partner,
the deficit balance, if any, in such Partner’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
Partner is obligated or treated as obligated to restore with respect to any
deficit balance in such Capital Account pursuant to
Section 1.704-1(b)(2)(ii)(c) of the Regulations, or is deemed to be
obligated to restore with respect to any deficit balance pursuant to the
penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of
the Regulations; and


 


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


 


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


 


“Adjustment
Date” shall have the meaning set forth in Section 4.3(a) hereof.


 


“Administrative
Expenses” shall mean (i) all administrative and operating costs and
expenses incurred by the Partnership, (ii) all administrative, operating
and other costs and expenses incurred by the Property Partnerships, which
expenses are being assumed by the Partnership pursuant to Section 6.1
hereof, (iii) those administrative costs and expenses of the Affiliate
Limited Partner and the REIT Entities, including salaries paid to officers of
the Public REIT and accounting and legal expenses undertaken by the General
Partner on behalf or for the


 


2

















 


benefit
of the Partnership, and (iv) to the extent not included in clause
(iii) above, REIT Expenses.


 


“Affiliate”
shall mean, with respect to any Partner (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 Partner; (ii) any trustee or beneficiary of a
Partner; (iii) any legal representative, successor, or assignee of such
Partner or any Person referred to in the preceding clauses (i) and (ii);
(iv) any trustee of any trust for the benefit of such Partner or any
Person referred to in the preceding clauses (i) through (iii); or
(v) any Entity which directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such Partner or
any Person referred to in the preceding clauses (i) through (iv).


 


“Affiliate
Limited Partner” shall mean GGP Limited Partnership II, a Delaware limited
partnership.


 


“Aggregate
Protected Amount” shall mean, with respect to the Obligated Partners, as a
group, the aggregate amount of the Protected Amounts, if any, of the Obligated
Partners, as determined on the date in question.


 


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


 


“Audited
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 and
accompanied by an independent auditor’s report containing (i) an opinion
containing no material qualification, and (ii) no explanatory paragraph
disclosing information relating to material uncertainties (except as to
litigation) or going concern issues.


 


“Bankruptcy”
shall mean, with respect to any Partner or the Partnership, (i) the
commencement by such Partner or the Partnership of any proceeding seeking
relief under any provision or chapter of the federal Bankruptcy Code or any
other federal or state law relating to insolvency, bankruptcy or
reorganization, (ii) an adjudication that such Partner or the Partnership
is insolvent or bankrupt, (iii) the entry of an order for relief under the
federal Bankruptcy Code with respect to such Partner or the Partnership,
(iv) the filing of any such petition or the commencement of any such case
or proceeding against such Partner or the Partnership, 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 Partner
or the Partnership admitting the allegations of any such petition,
(vi) the appointment of a trustee, receiver or custodian for all or
substantially all of the assets of such Partner or the Partnership unless such
appointment is vacated or dismissed within ninety (90) days from the date of
such appointment but not less than five (5) days before the proposed sale
of any assets of such Partner or the Partnership, (vii) the insolvency of
such Partner or the Partnership or the execution by such Partner or the
Partnership of a general assignment for the benefit of creditors,
(viii) the convening by such Partner or the Partnership of a meeting of
its creditors, or any class thereof,


 


3

















 


for
purposes of effecting a moratorium upon or extension or composition of its
debts, (ix) the failure of such Partner or the Partnership to pay its
debts as they mature, (x) the levy, attachment, execution or other seizure
of substantially all of the assets of such Partner or the Partnership where
such seizure is not discharged within thirty (30) days thereafter, or
(xi) the admission by such Partner or the Partnership 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.


 


“Bankruptcy
Cases” shall mean those voluntary petitions filed on April 16, 2009 by
the General Partner and the Partnership for relief under title 11 of the United
States Code in the United States Bankruptcy Court for the Southern District of
New York.


 


“Bucksbaum
Limited Partners” shall mean M.B. Capital Partners III and its successors
and assigns.


 


“Bucksbaum
Rights Agreement” shall mean that certain Rights Agreement dated as of
July 27, 1993, among the General Partner and certain predecessors of the
Bucksbaum Limited Partners.


 


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


 


“Capital
Contribution” shall mean, with respect to any Partner, the amount of money
and the initial Gross Asset Value of any property other than money contributed
to the Partnership with respect to the Units held by such Partner (net of
liabilities to which such property is subject).


 


“Certificate”
shall mean the Certificate of Limited Partnership establishing the Partnership,
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 corporate charter of the Public REIT, as filed with the office
of the Delaware Secretary of State, as it may be amended from time to time.


 


“Closing
Price” on any day shall mean the average of the intra-day high and low for
such day as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Common Stock is 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


 


4

















 


principal
national securities’ exchange on which the Common Stock is listed or admitted
to trading or, if the Common Stock is 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 Stock is
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
Stock as such person is selected from time to time by the Board of Directors of
the Public REIT.


 


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


 


“Common
Stock” shall mean the shares of common stock of the Public REIT.


 


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


 


“Consent
of the Limited Partners” shall mean the written consent of a
Majority-In-Interest of the Limited Partners (or other specified group of
Limited Partners), which Consent shall be obtained prior to the taking of any
action for which it is required by this Agreement and may be given or withheld
by a Majority-in-Interest of the Limited Partners (or such specified group of
Limited Partners), unless otherwise expressly provided herein, in their sole and
absolute discretion.


 


“Contributed
Funds” shall have the meaning set forth in Section 4.3(a)(ii) hereof.


 


“Contributed
Property” shall have the meaning set forth in Section 4.1 hereof.


 


“Contribution
Agreements” shall mean all contribution and other agreements executed by
the Partnership and/or the General Partner in connection with the issuance of
Units.


 


“Contribution
Date” shall have the meaning set forth in Section 8.3 hereof.


 


“Control”
shall mean the ability, whether by the direct or indirect ownership of shares
or other equity interests by contract or otherwise, to elect a majority of the
directors of a corporation, to select the managing partner of a partnership, or
otherwise to select, or have the power to remove and then select, a majority of
those persons exercising governing authority over an Entity.  In the case of a limited partnership, the
sole general partner, all of the general partners to the extent each has equal
management control and authority, or the managing general partner or managing general
partners thereof shall be deemed to have control of such partnership and, in
the case of a trust, any trustee thereof or any Person having the right to
select any such trustee shall be deemed to have control of such trust.


 


“Conversion
Factor” shall mean 0.98448404.  The
Conversion Factor shall be adjusted in the event that the Public REIT,
(i) declares or pays a dividend on its outstanding shares of Common Stock
in shares of Common Stock or makes a distribution to all holders of its
outstanding shares of Common Stock in shares of Common Stock,
(ii) subdivides its outstanding


 


5

















 


shares
of Common Stock, or (iii) combines its outstanding shares of Common Stock
into a smaller number of shares.  The
Conversion Factor shall be adjusted by multiplying the Conversion Factor (as in
effect immediately prior to such adjustment) by fraction, the numerator of
which shall be the actual number of shares of Common Stock issued and
outstanding on the record date for such dividend, distribution, subdivision or
combination (determined without the below assumption), and the denominator of
which shall be the number of shares of Common Stock issued and outstanding on
the record date for such dividend, distribution, subdivision or combination
(assuming for such purposes that such dividend, distribution, subdivision or
combination has occurred as of such time). 
Any adjustment to the Conversion Factor shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.


 


“CSA”
shall mean that certain Contingent Stock Agreement, effective as of January 1,
1996, by The Rouse Company in favor of and for the benefit of the Holders
(named in Schedule I thereto) and the Representatives (therein defined), as
amended.


 


“Current
Per Share Market Price” shall mean, as of any date, the average of the
Closing Price for the five consecutive Trading Days ending on such date or the
average of the Closing Price for any other period of Trading Days that the
Public REIT deems appropriate with respect to any transaction or other event
for which “Current Per Share Market Price” is determined (other than a
redemption pursuant to any Rights Agreement unless otherwise provided therein);
provided, however, that the Closing Price for any Trading Day or Trading Days
that are included in any calculation of Current Per Share Market Price shall be
adjusted to take into account any stock split, dividend, subdivision,
combination and the like if Public REIT deems such adjustment to be
appropriate.


 


“Demand
Notice” shall have the meaning set forth in Section 12.2 hereof.


 


“Depreciation”
shall mean, with respect to any asset of the Partnership 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).


 


“Exercise
Notice” shall have the meaning set forth in the Bucksbaum Rights Agreement.


 


“Foreign
Owner” shall mean a foreign person or a person that is directly or
indirectly owned, in whole or in part by a foreign person as determined in
accordance with Section 897(H)(4) of the Code and the Regulations
promulgated thereunder.


 


6

















 


“Funding
Date” shall mean the date of consummation of any Funding Loan, offering of
shares of Common Stock or other transaction pursuant to which the Public REIT,
REIT Entities or the Affiliate Limited Partner raise Required Funds.


 


“Funding
Loan Proceeds” shall mean the net cash proceeds received by the Public
REIT, REIT Entities or the Affiliate Limited Partner in connection with any
Funding Loan, after deduction of all costs and expenses incurred by the Public
REIT, the REIT Entities or the Affiliate Limited Partner in connection with
such Funding Loan.


 


“Funding
Loan(s)” shall mean any borrowing or refinancing of borrowings by or on
behalf of the Public REIT, the REIT Entities or the Affiliate Limited Partner
from any lender for the purpose of advancing the Funding Loan Proceeds to the
Partnership as a loan pursuant to Section 4.3(a) hereof.


 


“GAAP”
shall mean generally accepted accounting principles.


 


“General
Partner” shall mean GGP, Inc., f/k/a General Growth Properties, Inc.,
a Delaware corporation, its duly admitted successors and assigns and any other
Person who is a general partner of the Partnership at the time of reference
thereto.


 


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


 


(a)           the initial Gross Asset Value of (i) the assets
contributed by each Partner to the Partnership prior to the date hereof is the
gross fair market value of such contributed assets as indicated in the books
and records of the Partnership as of the date hereof, and (ii) any asset
hereafter contributed by a Partner, other than money, is the gross fair market
value thereof as reasonably determined by the General Partner using such
reasonable method of valuation as the General Partner may adopt; provided that
the gross fair market value of any such assets hereafter contributed by the
General Partner shall be the Acquisition Cost thereof (without reduction for
any borrowings incurred by the General Partner in connection with the
acquisition of such assets and assumed by the Partnership or, if such
assumption was not possible, with respect to which borrowings the Partnership
obligates itself to make payments to the General Partner in a like amount and
on like terms);


 


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


 


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


 


7














 


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


 


(iii)          the liquidation of the
Partnership within the meaning of section 1.704-1(b)(2)(ii) (g) of
the Regulations;


 


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


 


(d)           the Gross Asset Values of
Partnership 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 B); provided, however, that Gross Asset
Values shall not be adjusted pursuant to this paragraph to the extent that the
General Partner 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 Partnership’s assets for purposes of computing Net
Income and Net Loss.  Any adjustment to
the Gross Asset Values of Partnership property shall require an adjustment to
the Partners’ 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 (d) of said definition in all
other cases.


 


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


 


“Incentive
Option” means an option to purchase Common Stock granted under the Stock
Incentive Plan.


 


“Incentive
Option Agreement” means the form of Incentive Option Agreement to be used
under the Stock Incentive Plan.


 


“Indirect
Owner” shall mean, in the case of an Obligated Partner that is an entity
that is classified as a partnership or disregarded entity for federal income
tax purposes, any person owning an equity interest in such Obligated Partner,
and, in the case of any Indirect Owner that itself is an entity that is classified
as a partnership or disregarded entity for federal income tax purposes, any
person owning an equity interest in such entity.


 


“Second
Restated Partnership Agreement” shall have the meaning set forth in the
preliminary recitals hereto.


 


8

















 


“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.


 


“Limited
Partner Representatives” shall have the meaning set forth in
Section 6.11 hereof.


 


“Limited
Partners” shall mean the Persons listed under the caption “Limited Partners”
on Exhibit A hereto, their permitted successors or assigns or any Person
who, at the time of reference thereto, is a limited partner of the Partnership.


 


“Liquidating
Trustee” shall mean such individual or Entity as is selected as the Liquidating
Trustee hereunder by the General Partner, which individual or Entity may
include an Affiliate of the General Partner, 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 Partnership 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 Partnership.


 


“Major
Decisions” shall have the meaning set forth in Section 6.3 hereof.


 


“Majority-in-Interest
of the Limited Partners” shall mean Limited Partner(s) (or specified
group of Limited Partners) who hold in the aggregate more than fifty percent
(50%) of the Percentage Interests then allocable to and held by the Limited
Partners (or such specified group of Limited Partners), as a class (excluding
any Units held by the General Partner, the Affiliate Limited Partner or any
other Affiliate of the General Partner other than the Limited Partners as at
April 1, 1998, their Affiliates and their successors and assigns, who
shall not be excluded).


 


“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 Partnership directly holds or acquires ownership of a
fee or leasehold interest, between the Partnership, as owner, and the Property
Manager, or such other property manager as the General Partner 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 General Partner shall
engage, as such agreement may be amended, modified or supplemented from time to
time.


 


“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
Partnership in connection with any borrowing or refinancing of borrowing by or
on behalf of the Partnership or by or on behalf of any Property Partnership
(whether or not secured), after deduction of all costs and expenses incurred by
the Partnership or the Property Partnership in 


 


9

















 


connection
with such borrowing, and after deduction of that portion of such proceeds used
to repay any other indebtedness of the Partnership 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 Partnership’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 Partnership (b) by treating
as a deductible expense any expenditure of the Partnership described in
Section 705(a)(2)(B) of the Code (including amounts paid or incurred
to organize the partnership (unless an election is made pursuant to Code
Section 709(b)) or to promote the sale of interests in the Partnership and
by treating deductions for any losses incurred in connection with the sale or
exchange of Partnership 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 Partnership 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
Partnership asset which requires that the Capital Accounts of the Partnership
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 B.


 


“Net
Operating Cash Flow” shall mean, with respect to any fiscal period of the
Partnership, the excess, if any, of “Receipts” over “Expenditures.”  For purposes hereof, the term “Receipts”
means the sum of all cash receipts of the Partnership 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 General Partner 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 Partnership for such period, (b) the amount of all
payments of principal and interest on account of any indebtedness of the
Partnership including payments of principal and interest on account of REIT
Loans, or amounts due on such indebtedness during such period (in the case of
clauses (a) and (b), excluding expenses or expenditures paid from
previously established reserves or deducted in computing Net Financing Proceeds
or Net Sales Proceeds), and (c) such additional cash reserves as of the
last day of such period as the General Partner deems necessary for any capital
or operating expenditure permitted hereunder.


 


“Net
Sale Proceeds” means the cash proceeds received by the Partnership in
connection with a sale of any asset by or on behalf of the Partnership or by or
on behalf of a Property Partnership after deduction of any costs or expenses
incurred by the Partnership 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
General Partner elects to repay out of the proceeds of such sale, together with
accrued


 


10

















 


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 Partner 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.


 


“Obligated
Partner” shall mean that or those Limited Partners listed as Obligated
Partners on Exhibit C attached hereto and made a part hereof, as such Exhibit may
be amended from time to time by the General Partner, whether by express
amendment to this Agreement or by execution of a written instrument by and
between any additional Obligated Partner being directly affected thereby and
the General Partner acting on behalf of the Partnership and without the prior
consent of the Limited Partners (other than the Obligated Partners being
affected thereby).


 


“Offered
Units” shall have the meaning set forth in the Bucksbaum Rights Agreement.


 


“Partner
Nonrecourse Debt” shall mean a liability as defined in Regulations Section 1.704-2(b)(4).


 


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


 


“Partners”
shall mean the General Partner and the Limited Partners, their duly admitted
successors or assigns or any Person who is a partner of the Partnership at the
time of reference thereto.


 


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


 


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


 


“Partnership
Record Date” shall mean the record date established by the General Partner
for a distribution of Net Operating Cash Flow pursuant to Section 5.2
hereof, which record date shall be the same as the record date established by
the Public REIT for the distribution to its stockholders of some or all of its
indirect share of such distribution.


 


“Percentage
Interest” shall mean, with respect to any Partner at any time, the
percentage ownership interest of such Partner in the Partnership at such time,
which percentage ownership interest shall be equal to the quotient of the
number of Common Units owned by such Partner at such time divided by the
aggregate number of issued and outstanding Common Units at such time, and any
holder of Preferred Units shall have a 0% Percentage Interest in respect of
such Preferred Units.  The Percentage
Interest of each Partner on the date hereof is set forth opposite its name on Exhibit A.


 


11

















 


“Person”
shall mean any individual or Entity.


 


“Precontribution
Gain” shall have the meaning set forth in Exhibit B.


 


“Preferred
Units” shall mean the Series B Preferred Units, Series D
Preferred Units, Series E Preferred Units and Series F Preferred Units
and any other series of preferred units of limited partnership interest in the
Partnership that are established and issued from time to time in accordance
with the terms hereof.


 


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


 


“Property”
shall mean any Shopping Center Project in which the Partnership 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 permitted successors or assigns.


 


“Property
Partnership” shall mean and include any partnership, limited liability
company or other Entity in which the Partnership 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 at a proposed Property.


 


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


 


“Protected
Amount” shall mean, with respect to any Obligated Partner, the amount set
forth opposite the name of such Obligated Partner on Exhibit C hereto and
made a part hereof as such Exhibit may be amended from time to time by an
amendment to the Partnership Agreement or by execution of a written instrument
by and between any Obligated Partners being affected thereby and the General
Partner, acting on behalf of the Partnership and without the prior consent of
the Limited Partners (other than the Obligated Partners being affected
thereby); provided, however; that, in the case of an Obligated Partner that is
an entity that is classified as a partnership or disregarded entity for federal
income tax purposes, upon the date nine months after the death of any Indirect
Owner in such Obligated Partner, or upon a fully taxable sale or exchange of
all of an Indirect Owner’s equity interest in such Obligated Partner (i.e.,
a sale or exchange in which the transferee’s basis in the Indirect Owner’s
equity interest in the Obligated Partner is not determined, in whole or in
part, by reference to the Indirect Owner’s basis in the Obligated Partner), the
Protected Amount of such Obligated Partner shall be reduced to the extent of
the Indirect Owner’s allocable share of the Obligated Partner’s Protected
Amount.  The principles of the preceding
sentence shall apply in the same manner in the case of any Indirect Owner that
itself is an entity that is classified as a partnership or disregarded entity
for federal income tax purposes.


 


“Public
REIT” shall mean (a) General Growth Properties, Inc., a Delaware
corporation whose shares of common stock are listed on the New York Stock
Exchange substantially concurrently herewith, that is the successor registrant
to old General Growth Properties, Inc. and will file reports under the
Securities Exchange Act of 1934 in lieu of old


 


12

















 


General
Growth Properties, Inc. or (b) any Person in the future whose
securities are publicly traded and holds directly or indirectly substantially
all of the ownership interests of the Partnership currently owned by General
Growth Properties, Inc.


 


“Qualified
Individual” shall have the meaning set forth in Section 12.2 hereof.


 


“Recourse
Liabilities” shall mean, as of the date of determination, the amount of
indebtedness of the Partnership on that date other than Nonrecourse Liabilities
and Partner Nonrecourse Debt.


 


“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 B.


 


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


 


“REIT
Entities” shall mean the Public REIT, GGP Real Estate Holding I, Inc.,
a Delaware corporation, GGP Real Estate Holding II, Inc., a Delaware
corporation, and the General Partner.


 


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


 


“REIT
Loan” shall have the meaning set forth in Section 4.3(a) hereof.


 


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


 


“Requesting
Party” shall have the meaning set forth in Section 12.2 hereof.


 


“Required
Funds” shall have the meaning set forth in Section 4.3 hereof.


 


“Responding
Party” shall have the meaning set forth in Section 12.2 hereof.


 


“Restricted
Period” shall have the meaning set forth in Section 9.5 hereof.


 


13

















 


“Restrictions
Lapse Data” shall have the meaning set forth in Section 9.5 hereof.


 


“Rights”
shall mean “Rights,” “Redemption Rights” or other similar rights as defined in
the Rights Agreements.


 


“Rights
Agreements” shall mean the Bucksbaum Rights Agreement and those certain Redemption
Rights Agreements entered into before, on or after the date hereof by the
Partnership, the General Partner and certain other Persons in connection with
the issuance of Units to such other Persons, as the same may be amended from
time to time.


 


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


 


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


 


“Series B
Preferred Units” shall mean the series of preferred units of the
Partnership designated as 8.5% Series B Cumulative Convertible Preferred
Units having such designations, preferences and other rights described in
Schedule A.


 


“Series D
Preferred Units” shall mean the series of preferred units of the
Partnership designated as 6.5% Series D Cumulative Convertible Preferred
Units having such designations, preferences and other rights described in
Schedule B.


 


“Series E
Preferred Units” shall mean the series of preferred units of the
Partnership designated as 7% Series E Cumulative Convertible Preferred
Units having such designations, preferences and other rights described in
Schedule C.


 


“Series F
Preferred Units” shall mean the series of preferred units of the
Partnership designated as Series F Cumulative Preferred Units having such
designations, preferences and other rights described in Schedule D.


 


“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.


 


“Stock
Incentive Plan” means the General Partner’s 1993 Stock Incentive Plan, as
amended, 1998 Incentive Stock Plan, as amended, and 2003 Incentive Stock Plan,
as amended.


 


“Stock
Plans” shall mean the Stock Incentive Plan and the other option, stock
purchase and/or dividend reinvestment plans of the Public REIT, General Partner
or the Partnership that are in effect from time to time.


 


“Substituted
Limited Partner” shall have the meaning set forth in Section 8.2 hereof.


 


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


 


14

















 


“Trading
Day” shall mean a day on which the principal national securities exchange
on which the Common Stock is listed or admitted to trading is open for the
transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or Executive Order to close.


 


“Units”
shall mean the partnership units in the Partnership established and issued from
time to time in accordance with the terms hereof, including without limitation
Common Units and Series B Preferred Units, Series D Preferred Units, Series E
Preferred Units and Series F Preferred Units.  The number and designation of all Units held
by each Partner is set forth opposite such Partner’s name on Exhibit 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.


 


ARTICLE II


 


Continuation


 


2.1          Continuation.  The parties hereto do hereby continue the
Partnership as a limited partnership pursuant to the provisions of the Act, and
all other pertinent laws of the State of Delaware, for the purposes and upon
the terms and conditions hereinafter set forth. 
The Partners agree that the rights and liabilities of the Partners shall
be as provided in the Act except as otherwise herein expressly provided.  The General Partner shall cause such notices,
instruments, documents or certificates as may be required by applicable law or
which may be necessary to enable the Partnership to conduct its business and to
own its properties in the Partnership name to be filed or recorded in all
appropriate public offices.


 


2.2          Name.  The business of the Partnership shall
continue to be conducted under the name of “GGP Limited Partnership” or such
other name as the General Partner may select and all transactions of the
Partnership, 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 Partnership 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 Partnership, and to engage in
such other ancillary activities as shall be necessary or desirable to
effectuate the foregoing purposes.  The
Partnership shall have all powers necessary or desirable to accomplish 


 


15

















 


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 Partnership, the Partnership shall have full power and authority, directly
or through its interest 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 necessary or useful in connection with its business.


 


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


 


2.5          Registered Agent and
Registered Office.  The
Registered Agent of the Partnership shall be Prentice-Hall Corporation System, Inc.
or such other Person as the General Partner may select in its sole discretion.  The Registered Office of the Partnership
shall be 32 Loockerman Square, Suite L-100, Dover, Delaware 19901 or such
other location as the General Partner may select in its sole and absolute
discretion.


 


ARTICLE III


 


Term


 


3.1          Commencement.  The Partnership heretofore commenced business
as a limited partnership upon the filing of the Certificate with the Secretary
of State of the State of Delaware.


 


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


 


(a)           The dissolution,
termination, retirement or Bankruptcy of the General Partner unless the
Partnership is continued as provided in Section 8.1 hereof; provided,
however, none of the foregoing shall be deemed to have occurred on account of
liquidation of the General Partner into one or more subsidiaries of the Public
REIT or one of more subsidiaries thereof; and provided, further, that no event
of dissolution shall have been deemed to occur by virtue of the Bankruptcy
Cases;


 


(b)           The election to dissolve the
Partnership made in writing by the General Partner with the Consent of the
Limited Partners;


 


(c)           The sale or other
disposition of all or substantially all the assets of the Partnership unless
the General Partner, with the Consent of the Limited Partners, elects to
continue the Partnership 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 Partnership (which activities shall
be deemed to be part of the winding up of the affairs of the Partnership); or


 


(d)           Dissolution required by
operation of law.


 


16














 


ARTICLE IV


 


Contributions to Capital


 


4.1          General Partner and
Affiliate Limited Partner Capital Contribution.  The General Partner and the Affiliate Limited
Partner have contributed to the Partnership as their Capital Contribution the
cash and property reflected in the Partnership’s books and records as having
been contributed by them.  The gross fair
market value of any property contributed by the General Partner or the
Affiliate Limited Partner to the Partnership (“Contributed Property”)
after the date hereof, other than money, shall be the acquisition cost of such
Contributed Property (the “Acquisition Cost”).  The Acquisition Cost also shall include any
costs and expenses incurred by the General Partner or the Affiliate Limited
Partner in connection with such acquisition or contribution; provided, however,
that in the event the Acquisition Cost of Contributed Property is financed by
any borrowings by the REIT Entities or Affiliate Limited Partner, the
Partnership shall assume any such obligations concurrently with the
contribution of such property to the Partnership or, if impossible, shall
obligate itself to the General Partner or the Affiliate Limited Partner, as
applicable, in an amount and on terms equal such indebtedness, and the
Acquisition Cost shall be reduced appropriately.  If the General Partner or the Affiliate
Limited Partner contributes Contributed Property to the Partnership, the
General Partner or the Affiliate Limited Partner, as applicable, shall be
deemed to have contributed to the Partnership as Contributed Funds pursuant to
Section 4.3(a)(ii) hereof an amount equal to the Acquisition Cost of
such Contributed Property.


 


4.2          Limited Partner Capital
Contributions.  Each
Limited Partner (other than the Affiliate Limited Partner) has heretofore
contributed, or is deemed to have contributed, as its Capital Contribution to
the capital of the Partnership, the property reflected in the Partnership’s
books and records as having been contributed by it.


 


4.3          Additional Funds.


 


(a)           If the General Partner
determines that funds are required or desired for any proper Partnership
purpose in excess of the funds anticipated to be available and the General
Partner is not able or does not deem it advisable to cause the Partnership to
borrow such funds or the REIT Entities or Affiliate Limited Partner otherwise
raises any funds, including by issuance of new or sale of existing equity
interests or securities (all of such funds, the “Required Funds”), the
General Partner shall either:


 


(i)            to the extent the REIT Entities
or the Affiliate Limited Partner borrows all or any portion of the Required
Funds by entering into a Funding Loan, such entity shall, on the Funding Date,
lend (the “REIT Loan”) to the Partnership the Funding Loan Proceeds on
the same terms and conditions, including interest rate, repayment schedule and
costs and expenses, as shall be applicable with respect to or incurred in
connection with the Funding Loan; or


 


(ii)           to the extent (x) the
Public REIT issues shares of its Common Stock or other securities (other than
notes issued in connection with a Funding Loan), (y) the other REIT
Entities or Affiliate Limited Partner issue new equity


 


17

















 


interests or securities to
any Person not under the Control of, or not wholly owned (except for de minimis preferred stock), directly or indirectly, by, the
Public REIT or (z) the Public REIT, directly or indirectly, sells any
previously issued equity interests or securities in the other REIT Entities or
the Affiliate Limited Partner to raise the Required Funds, the General Partner
and/or Affiliate Limited Partner, as applicable, shall, on the Funding Date,
contribute to the Partnership as an additional Capital Contribution the amount
of the Required Funds so raised (“Contributed Funds”) (hereinafter, each
Funding Date on which the General Partner and/or Affiliate Limited Partner, as
applicable, so contributes Contributed Funds pursuant to this subparagraph (ii) is
referred to as an “Adjustment Date”). 
In the event the General Partner and/or Affiliate Limited Partner
advances Required Funds to the Partnership as Contributed Funds pursuant to
this subparagraph (ii), the Partnership shall assume and pay (or reflect on its
books as additional Contributed Funds) the expenses (including any applicable
underwriting discounts) incurred by the REIT Entities or the Affiliate Limited
Partner in connection with raising such Contributed Funds through a public
offering of its securities or otherwise.


 


(b)           Effective on each Adjustment
Date and without the consent of any other Partner, the Partnership shall issue
to the General Partner and/or Affiliate Limited Partner, as applicable, with
respect to Contributed Funds relating to:


 


(i)            an issuance by the Public
REIT of Common Stock, the number of additional Common Units equal to the
product of (x) the number of shares of Common Stock issued by the Public
REIT in connection with obtaining such Contributed Funds, and (y) the
Conversion Factor;


 


(ii)           an issuance by the Public
REIT of other equity interests or securities, Preferred Units with terms that
are equivalent to the terms of such other equity interests or securities;


 


(iii)          an issuance by the other
REIT Entities or the Affiliate Limited Partner of equity interests or
securities to any Person not under the Control of, or not wholly owned (except
for de minimis preferred stock), directly or
indirectly, by, the Public REIT, the number of Series F Preferred Units
equal to a fraction, the numerator of which shall be the liquidation value of
such equity securities and the denominator of which shall be $1000; provided,
the Public REIT shall cause the other REIT Entities and the Affiliate Limited
Partner to restrict such issuances to equity interests or securities having
substantially similar terms to the Series F Preferred Units; or


 


(iv)          a sale, directly or
indirectly, by the Public REIT of equity interests or securities in the other
REIT Entities or the Affiliate Limited Partner, the number of additional Common
Units equal to (x) the Conversion Factor multiplied by (y) the
quotient of (1) the sale price of such equity interests divided by
(2) the Current Per Share Market Price in respect of such transaction.


 


18

















 


The General Partner shall be
authorized on behalf of each of the Partners to amend this Agreement to reflect
the issuance of Units in accordance with Sections 4.3 and 4.4 in the event that
the General Partner deems such amendment to be desirable.


 


4.4          Stock Plans.  If at any time or from time to time options
granted in connection with the Stock Incentive Plan or any other Stock Plans
are exercised in accordance with the terms thereof or shares of Common Stock
are otherwise issued pursuant to any of the Stock Plans:


 


(a)           the Public REIT, General
Partner and/or Affiliate Limited Partner, as applicable, shall, as soon as
practicable after such exercise, purchase or other issuance, contribute or
cause to be contributed to the capital of the Partnership an amount equal to
the exercise price or other purchase price paid to the Public REIT, General
Partner and/or Affiliate Limited Partner, as applicable, by the exercising or
purchasing party in connection with such exercise or issuance; and


 


(b)           the Partnership shall issue
to the General Partner and/or Affiliate Limited Partner, as applicable, with
respect to any exercise of options or purchase of shares of Common Stock
pursuant to the Stock Plans, the number of additional Common Units equal to the
product of (i) the number of shares of Common Stock issued by the Public
REIT in connection with such exercise, purchase or issuance, multiplied by
(ii) the Conversion Factor.


 


4.5          No Third Party Beneficiary.  No creditor or other third party having
dealings with the Partnership shall have the right to enforce the right or
obligation of any Partner to make Capital Contributions or 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 Partners herein set forth to make Capital
Contributions or loans to the Partnership shall be deemed an asset of the
Partnership for any purpose by any creditor or other third party, nor may such
rights or obligations be sold, transferred or assigned by the Partnership or
pledged or encumbered by the Partnership to, secure any debt or other
obligation of the Partnership or of any of the Partners.


 


4.6          No Interest; No Return.  No Partner shall be entitled to interest on
its Capital Contribution or on such Partner’s Capital Account.  Except as provided herein or by law, no
Partner shall have any right to demand or receive the return of its Capital
Contribution from the Partnership.


 


4.7          Preferred Units.  The Series B Preferred Units, Series D
Preferred Units, and Series E Preferred Units and Series F Preferred
Units have been established and have the rights, preferences, limitations and
qualifications as are described in Schedule A, Schedule B, Schedule C and
Schedule D, respectively, in addition to the applicable rights and preferences
contained herein.


 


19

















 


ARTICLE V


 


Allocations and Other Tax
and Accounting Matters


 


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


 


5.2          Distributions With Respect
to Common Units.


 


(a)           Subject to the terms of the
Preferred Units and after giving effect to the same, the General Partner shall,
from time to time as determined by the General Partner (but in any event not
less frequently than quarterly), cause the Partnership to distribute all or a
portion of the remaining Net Operating Cash Flow to the holders of Common Units
on the relevant Partnership Record Date in such amounts as the General Partner
shall determine; provided, however, that all such distributions shall be made
pro rata in accordance with the Partners’ then Percentage Interests; and
provided further, that notwithstanding anything to the contrary contained
herein, the General Partner shall use its best efforts to cause the Partnership
to distribute sufficient amounts to enable the REIT Entities to pay shareholder
dividends that will (i) satisfy the requirements for qualifying as a REIT
under the Code and Regulations (“REIT Requirements”), and
(ii) avoid any federal income or excise tax liability of the REIT
Entities.


 


(b)           In no event may a Limited
Partner receive a distribution of Net Operating Cash Flow in respect of a Unit
that such Partner has exchanged for a share of Common Stock pursuant to a
Rights Agreement on or prior to the relevant Partnership Record Date; rather,
all such distributions shall be made to the General Partner.  Upon the receipt by the General Partner of
each Exercise Notice pursuant to which one or more Limited Partners exercise
Rights in accordance with the provisions of the Bucksbaum Rights Agreement, the
General Partner shall, unless the Public REIT is required or elects only to
issue Common Stock to such exercising Limited Partners, cause the Partnership
to distribute to the Partners, pro rata in accordance with their Percentage
Interests on the date of delivery of such Exercise Notice, all (or such lesser
portion as the General Partner shall reasonably determine to be prudent under
the circumstances) of Net Operating Cash Flow, which distribution shall be made
prior to the closing of the purchase and sale of the Offered Units specified in
such Exercise Notice.


 


5.3          Books of Account.  At all times during the continuance of the
Partnership, the General Partner 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 Partnership, or
paid, received, sold or purchased in the course of the Partnership’s business,
and all of such other transactions, matters and things relating to the business
of the Partnership as are usually entered in books of account kept by persons
engaged in a business of a like kind and character.  In addition, the Partnership shall keep all
records as required to be kept pursuant to the Act.  The books and records of account shall be
kept at the principal office of the Partnership, and each Partner shall at all
reasonable times have access to such books and records and the right to inspect
the same.


 


20

















 


5.4          Reports.  The Public REIT shall cause to be submitted
to the Limited Partners, promptly upon receipt of the same from the Accountants
and in no event later than April 1 of each year, copies of Audited Financial
Statements prepared on a consolidated basis for the Public REIT and the
Partnership together with their consolidated subsidiaries, together with the
reports thereon, and all supplementary schedules and information, prepared by
the Accountants.  The Public REIT shall
also cause to be prepared such reports and/or information as are necessary for
the REIT Entities to determine their qualification as a REIT and their
compliance with REIT Requirements.


 


5.5          Audits.  Not less frequently than annually, the books
and records of the Partnership shall be audited by the Accountants.  The General Partner shall, unless determined
otherwise by the General Partner with the Consent of the Limited Partners,
engage the Accountants to audit the books and records of the Property
Partnerships.


 


5.6          Tax Elections and Returns.


 


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


 


(b)           The General Partner shall
cause the Accountants to prepare and file all state and federal tax returns on
a timely basis.  The General Partner
shall cause the Accountants to prepare and submit to the Limited Partner
Representatives on or before April 1 of each year for review all federal
and state income tax returns of the Partnership and cause the Accountants for
the Property Partnerships to submit to the Limited Partner Representatives on
or before April 1 of each year for review all federal and state income tax
returns of the Property Partnerships.  If
the Limited Partner Representatives determine that any modifications to the tax
returns of the Partnership or any Property Partnership should be considered,
the Limited Partner Representatives shall, within thirty (30) days following
receipt of such tax returns from the Accountants or the General Partner,
indicate to the General Partner the suggested revisions to the tax returns,
which returns shall be resubmitted to the Limited Partner Representatives for
their review (but not approval).  The
Limited Partner Representatives shall complete their review of the resubmitted
returns within ten (10) days after receipt thereof from the Accountants or
the General Partner.  The General Partner
shall consult in good faith with the Limited Partner Representatives regarding
any such proposed modifications to the tax returns of the Partnership and/or
the Property Partnerships.  A statement
of the allocation of Net Income or Net Loss of the Partnership shown on the
annual income tax returns prepared by the Accountants and a statement of the
allocation of Net Income or Net Loss shown on the income tax return, of the
Property Partnerships shall be transmitted and delivered to the Limited Partner
Representatives within ten (10) days of the receipt thereof by the
Partnership.  The General Partner shall
be responsible for preparing and filing all federal and state tax returns for
the Partnership and furnishing copies thereof to the Partners, together with
required Partnership schedules showing allocations of tax items and copies 


 


21

















 


of the tax returns of all
Property Partnerships, all within the period of time prescribed by law or by
the provisions hereof.


 


5.7          Tax Matters Partner.  The General Partner is hereby designated as
the Tax Matters Partner within the meaning of section 6231(a)(7) of the
Code for the Partnership; provided, however, (i) in exercising its
authority as Tax Matters Partner it shall be limited by the provisions of this
Agreement affecting tax aspects of the Partnership; (ii) the General
Partner shall consult in good faith with the Limited Partner Representatives
regarding the filing of a Code Section 6227(b) administrative
adjustment request with respect to the Partnership or a Property before filing
such request, it being understood, however, that the provisions hereof shall
not be construed to limit the ability of any Partner, including the General
Partner, to file an administrative adjustment request on its own behalf
pursuant to Section 6227(a) of the Code; (iii) the General
Partner shall consult in good faith with the Limited Partner Representatives
regarding the filing of a petition for judicial review of an administrative
adjustment request under Section 6228 of the Code, or a petition for
judicial review of a final partnership administrative judgment under
Section 6226 of the Code relating to the Partnership before filing such
petition; (iv) the General Partner shall give prompt notice to the Limited
Partner Representatives of the receipt of any written notice that the Internal
Revenue Service or any state or local taxing authority intends to examine
Partnership income tax returns for any year, receipt of written notice of the
beginning of an administrative proceeding at the Partnership level relating to
the Partnership under Section 6223 of the Code, receipt of written notice
of the final Partnership administrative adjustment relating to the Partnership
pursuant to Section 6223 of the Code, and receipt of any request from the
Internal Revenue Service for waiver of any applicable statute of limitations
with respect to the filing of any tax return by the Partnership; and
(v) the General Partner shall promptly notify the Limited Partner
Representatives if the General Partner does not intend to file for judicial
review with respect to the Partnership. 
The General Partner, in acting on behalf of the Partnership as tax
matters partner of a Property Partnership, shall afford the Limited Partners
the same rights with respect to Property Partnership tax matters as afforded to
the Limited Partners under this Section 5.7.


 


5.8          Withholding.  Each Partner hereby authorizes the
Partnership to withhold or pay on behalf of or with respect to such Partner any
amount of federal, state, local or foreign taxes that the General Partner
determines the Partnership is required to withhold or pay with respect to any
amount distributable or allocable to such Partner pursuant to this Agreement,
including without limitation any taxes required to be withheld or paid by the
Partnership pursuant to Sections 1441, 1442, 1445 or 1446 of the Code.  Any amount paid on behalf of or with respect
to a partner shall constitute a loan by the Partnership to such Partner, which
loan shall be due within fifteen (15) days after repayment is demanded of such
Partner and shall be repaid through withholding of subsequent distributions to
such Partner.  Nothing in this
Section 5.8 shall create any obligation on the General Partner to advance
funds to the Partnership or to borrow funds in order to make payments on
account of any liability of the Partnership under a withholding tax act.  Any amounts payable by a Limited Partner
hereunder shall bear interest at the lesser of (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 Partnership, such credit shall be allocated to
the Partner to whose distribution the tax is attributable.


 


22














 


5.9          Distributions with Respect
to Preferred Units.


 


(a)           The holders of Series B
Preferred Units are entitled to quarterly, cumulative partnership distributions
when, if and as declared, in an amount equal to the greater of (i) $1.0625
per Series B Preferred Unit and (ii) the amount of regular quarterly
cash distributions upon the number of Common Units into which such Series B
Preferred Unit is then convertible, as more particularly described in Schedule
A.


 


(b)           The holders of Series D
Preferred Units are entitled to quarterly, cumulative partnership distributions
when, if and as declared, in an amount equal to the greater of (i) $0.8125
per Series D Preferred Unit and (ii) the amount of regular quarterly
cash distributions upon the number of Common Units into which such Series D
Preferred Unit is then convertible, as more particularly described in Schedule
B.


 


(c)           The holders of Series E
Preferred Units are entitled to quarterly, cumulative partnership distributions
when, if and as declared, in an amount equal to the greater of (i) $0.875
per Series E Preferred Unit and (ii) the amount of regular quarterly
cash distributions upon the number of Common Units into which such Series E
Preferred Unit is then convertible, as more particularly described in Schedule
C.


 


(d)           The holders of Series F
Preferred Units are entitled to quarterly, cumulative partnership distributions
when, if and as declared, in an amount equal to $25, as more particularly
described in Schedule D.


 


ARTICLE VI


 


Rights, Duties and
Restrictions of the General Partner


 


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


 


6.2          Powers and Duties of General
Partner.  The General Partner shall be
responsible for the management of the Partnership’s business and affairs.  Except as otherwise herein expressly
provided, and subject to the limitations contained in Section 6.3 hereof
with respect to Major Decisions, the General Partner shall have, and is hereby
granted, full and complete power, authority and discretion to take such action
for and on behalf of the Partnership and in its name as the General Partner
shall, in its sole and absolute discretion, deem necessary or appropriate to
carry out the purposes for which the Partnership was organized.  Except as otherwise expressly provided
herein, and subject to Section 6.3 hereof but without limiting the
foregoing grant of power, authority and discretion, the General Partner 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, 


 


23

















 


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
Partnership;


 


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


 


(c)           To employ, engage or
contract with or dismiss from employment or engagement Persons to the extent
deemed necessary by the General Partner for the operation and management of the
Partnership 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 Partnership;


 


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


 


(f)            To pledge, hypothecate,
mortgage, assign, deposit, deliver, enter into sale and leaseback arrangements
or otherwise give as security or as additional or substitute security, or for
sale or other disposition any and all Partnership property, tangible or
intangible, including, but not limited to, real estate and beneficial interests
in land trusts,


 


24

















 


and to make substitutions
thereof, and to receive any proceeds thereof upon the release or surrender
thereof; to sign, execute and deliver any and all assignments, deeds and other
contracts and instruments in writing; to authorize, give, make, procure, accept
and receive moneys, payments, property, notices, demands, vouchers, receipts,
releases, compromises and adjustments; to waive notices, demands, protests and
authorize and execute waivers of every kind and nature; to enter into, make,
execute, deliver and receive written agreements, undertakings and instruments
of every kind and nature; to give oral instructions and make oral agreements;
and generally to do any and all other acts and things incidental to any of the
foregoing or with reference, to any dealings or transactions which any attorney
may deem necessary, proper or advisable;


 


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


 


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


 


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


 


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


 


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


 


25

















 


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


 


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


 


Except
as otherwise provided herein, to the extent the duties of the General Partner
require expenditures of funds to be paid to third parties, the General Partner
shall not have any obligations hereunder except to the extent that Partnership
funds are reasonably available to it for the performance of such duties, and
nothing herein contained shall be deemed to authorize or require General
Partner, in its capacity as such, to expend its individual funds for payment to
third parties or to undertake any individual liability or obligation on behalf
of the Partnership.


 


6.3          Major Decisions.  The General Partner shall not, without the
prior Consent of the Limited Partners, on behalf of the Partnership, undertake
any of the following actions (the “Major Decisions”):


 


(a)           Amend, modify or terminate
this Agreement other than to reflect the admission of additional limited
partners pursuant to Section 8.3 hereof or the issuance of additional
Units pursuant to Section 4.3 hereof and other than as provided in other
sections hereof.


 


(b)           Make a general assignment
for the benefit of creditors or appoint or acquiesce in the appointment of a
custodian, receiver or trustee for all or any part of the assets of the
Partnership.


 


(c)           Take title to any personal
or real property, other than in the name of the Partnership or a Property
Partnership or pursuant to the provisions hereof.


 


(d)           Institute any proceeding for
Bankruptcy on behalf of the Partnership.


 


(e)           Sell all or substantially
all of the assets of the Partnership.


 


(f)            Dissolve the Partnership.


 


6.4          Actions with Respect to
Certain Documents. 
Notwithstanding the provisions of Section 6.3 hereof to the
contrary, whenever the consent, agreement, authorization or approval of the
Partnership is required under any agreement to which the Bucksbaum Limited
Partners and/or their Affiliates are parties in interest other than in their
capacities as Limited Partners of the Partnership, the prior approval of a
majority of the directors of the General Partner who are not Affiliates of the
Bucksbaum Limited Partners shall be required.


 


6.5          Public REIT Participation.  The Public REIT agrees that all business
activities of the Public REIT, the Affiliated Limited Partner and the other
REIT Entities, including activities pertaining to the acquisition, development
and ownership of Properties, shall be conducted through the Partnership (other
than the Public REIT’s, Affiliated Limited Partner’s or the other REIT Entities’
direct or indirect interest of not more than one percent (1%) in Property
Partnerships not owned through the Partnership).  Without the Consent of the Limited Partners, 


 


26

















 


the Public REIT shall not, directly or indirectly,
and shall cause the Affiliate Limited Partner and/or the other REIT Entities
not to directly or indirectly, participate in or otherwise acquire any interest
in any real or personal property unless the Partnership participates in, or
otherwise acquires an interest in, such real or personal property at least to
the extent of 99 times such proposed participation by the Public REIT, the
Affiliate Limited Partner and/or the other REIT Entities, as applicable.  The Public REIT agrees and agrees on behalf
of the Affiliate Limited Partner and the other REIT Entities that all
borrowings for the purpose of making distributions to its stockholders will be
incurred by the Partnership or the Property Partnerships and the proceeds of
such indebtedness will be included as Net Financing Proceeds hereunder.


 


6.6          Proscriptions.  The General Partner 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 Partnership;


 


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


 


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


 


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


 


6.7          Additional Partners.  Additional Partners may be admitted to the
Partnership only as provided in Section 8.3 hereof:


 


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


 


6.9          Compensation of the General
Partner.  The General Partner shall not
be entitled to any compensation for services rendered to the Partnership solely
in its capacity as General Partner except with respect to reimbursement for
those costs and expenses constituting Administrative Expenses.


 


6.10        Waiver and Indemnification.


 


(a)           Neither the General Partner
nor any Person acting on its behalf (pursuant hereto, shall be liable,
responsible or accountable in damages or otherwise to the Partnership or to any
Partner for any acts or omissions performed or omitted to be performed by them
within the scope of the authority conferred upon the General Partner by this
Agreement and the Act, provided that the General Partner’s or such other Person’s



 


27

















 


conduct or omission to act
was taken in good faith and in the belief that such conduct or omission was in
the best interests of the Partnership and, provided further, that the General
Partner or such other Person shall not be guilty of fraud, misconduct or gross
negligence.  The Partnership shall, and
hereby does, indemnify and hold harmless the General Partner and its Affiliates
and any individual acting on their behalf from any loss, damage, claim or
liability, including, but not limited to, reasonable attorneys’ fees and
expenses, incurred by them by reason of any act performed by them in accordance
with the standards set forth above or in enforcing the provisions of this
indemnity; provided, however, no Partner shall have any personal liability with
respect to the foregoing indemnification, any such indemnification to be
satisfied solely out of the assets of the Partnership.


 


(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
Partnership, without interest, if such Person is found by a court of competent
jurisdiction upon entry of a final judgment not be entitled to such
indemnification, all rights of the indemnitee hereunder shall survive the
dissolution of the Partnership; provided, however, that a claim for
indemnification under this Agreement must be made by or on behalf of the Person
seeking indemnification prior to the time the Partnership is liquidated
hereunder.  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 Partnership and no Partner shall be liable therefor.


 


6.11        Limited Partner Representatives.  A Majority-In-Interest of the Bucksbaum
Limited Partners shall appoint one or more representatives (“Limited Partner
Representatives”).  A
Majority-In-Interest of the Bucksbaum Limited Partners shall have the rights at
any time, within their sole discretion, to replace any of the Limited Partner
Representatives, to appoint a temporary substitute to act for any Limited
Partner Representative unable to act, or to vest in only one of the Limited
Partner Representatives the sole power to exercise rights of the Limited
Partner Representatives thereunder.  The
Limited Partner Representatives shall be appointed by the Bucksbaum Limited
Partners in writing, a copy of which shall be delivered to the General Partner.  Any appointments of Limited Partner Representatives
made hereunder shall remain effective until rescinded in a writing delivered to
the General Partner and the General Partner shall have the right and authority
to rely (and shall be fully protected in so doing) on the actions taken and
directions given by such Limited Partner Representatives without any further
evidence of their authority or further action by the Bucksbaum Limited
Partners.


 


6.12        Operation in Accordance with
REIT Requirements.  The
Partners acknowledge and agree that the Partnership shall be operated in a
manner that will enable the REIT Entities to (a) satisfy the REIT
Requirements and (b) avoid the imposition of any federal, income or excise
tax liability.  The Partnership shall avoid
taking any action, or permitting any Property Partnership to take any action,
which would result in the REIT Entities ceasing to satisfy the REIT
Requirements or would result in the imposition of any federal income or excise
tax liability on the REIT Entities.  The
determination as to whether the Partnership has operated in 


 


28

















 


the manner prescribed in this Section 6.12
shall be made without regard to any action or inaction of the General Partner
with respect to distributions and the timing thereof.


 


ARTICLE VII


 


Dissolution, Liquidation and
Winding-Up


 


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


 


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


 


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


 


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


 


(c)           Payment of debts of the
Partnership to any, in the order of priority provided by law;


 


(d)           Payment to the holders of
Preferred Units in accordance with the terms thereof; and


 


(e)           To the Partners holding
Common Units in accordance with their respective Percentage Interests.


 


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


 


7.3          Timing Requirements.  In the event that the Partnership is “liquidated”
within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations, any and all distributions, to the Partners 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 Partnership in which such
liquidation occurs or (ii) ninety (90) days after the date of such
liquidation.


 


7.4          Sale of Partnership Assets.  In the event of the liquidation of the
Partnership in accordance with the terms of this Agreement, the Liquidating
Trustee may, with the Consent of the Limited Partners, sell Partnership 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 


 


29

















 


Partnership assets shall be made by the Liquidating
Trustee with the prior Consent of the Limited Partners and 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 Limited
Partners.  The liquidation of the
Partnership shall not be deemed finally terminated until the Partnership shall
have received cash payments in full with respect to obligations such as notes,
installment sale contracts or other similar receivables received by the
Partnership in connection with the sale of Partnership assets and all
obligations of the Partnership have been satisfied or assumed by the General
Partner.  The Liquidating Trustee shall
continue to act to enforce all of the rights of the Partnership 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 Partnership property in kind, the General Partner may,
with the Consent of the Limited Partners, transfer and convey such property to
the distributees as tenants in common, subject to any liabilities attached
thereto, so as to vest in them undivided interests in the whole of such
property in proportion to their respective rights to share in the proceeds of
the sale of such property (other than as a creditor) in accordance with the
provisions of Section 7.2 hereof.


 


7.6          Documentation of Liquidation.  Upon the completion of the dissolution and
liquidation of the Partnership, the Partnership 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 partnership.


 


7.7          Liability of the Liquidating
Trustee.  The Liquidating Trustee shall
be indemnified and held harmless by the Partnership from and against any and
all claims, demands, liabilities, costs, damages and causes of action of any
nature whatsoever arising out of or incidental to the Liquidating Trustee’s
taking of any action authorized under or within the scope of this Agreement;
provided, however, that the Liquidating Trustee shall not be entitled to
indemnification, and shall not be held harmless, where the claim, demand,
liability, cost, damage or cause of action at issue arose out of:


 


(a)           A matter entirely unrelated
to the Liquidating Trustee’s action or conduct pursuant to the provisions of
this Agreement; or


 


(b)           The proven misconduct or
negligence of the Liquidating Trustee.


 


7.8          Liquidation Preference of
Preferred Units.  With
respect to liquidation of the Partnership:


 


(a)           The holders of Series B
Preferred Units shall have the rights and preferences described in Schedule A.


 


(b)           The holders of Series D
Preferred Units shall have the rights and preferences described in Schedule B.


 


(c)           The holders of Series E
Preferred Units shall have the rights and preferences described in Schedule C


 


30

















 


(d)           The holders of Series F
Preferred Units shall have the rights and preferences described in Schedule D.


 


7.9          Negative Capital Accounts.


 


(a)           Except as provided in the
next sentence and Section 7.9(b), no Partner shall be liable to the
Partnership or to any other partner for any deficit or negative balance which
may exist in its Capital Account.  Upon
liquidation of any Obligated Partner’s interest in the Partnership, whether
pursuant to a liquidation of the Partnership or by means of a distribution to
the Obligated Partner by the Partnership, if such Obligated Partner has a
deficit balance in its Capital Account, after giving effect to all
contributions, distributions, allocations and adjustments to Capital Accounts
for all periods, each such Obligated Partner shall contribute to the capital of
the Partnership an amount equal to its respective deficit balance.  Each Obligated Partner having such an
obligation to restore a deficit Capital Account shall satisfy such obligation
by the end of the fiscal year of liquidation (or, if later, within ninety (90)
days following the liquidation and dissolution of the Partnership).  Any such contribution by an Obligated Partner
shall be used to make payments to creditors of the Partnership and such
Obligated Partners (i) shall not be subrogated to the rights of any such
creditor against the General Partner, the Partnership, another Partner or any
Person related thereto, and (ii) hereby waive any right to reimbursement,
contribution or similar right to which such Obligated Partners might otherwise
be entitled as a result of the performance of their obligations under this
Agreement.


 


(b)           Notwithstanding any other
provision of this Agreement, an Obligated Partner other than Koury Corporation
shall cease to be an Obligated Partner upon the earlier of (i) nine months
after the death of such Obligated Partner or (ii) six months after
(A) any date after the third anniversary date of the date of the Fourth
Amendment to Second Amended and Restated Agreement of Limited Partnership of
GGP Limited Partnership dated as of April 1, 1998, which is selected by
the Obligated Partner as the date upon which such Obligated Partner’s
obligation hereunder shall terminate (and for which notice of such date shall
be given at least 60 days prior to such selected date) or (B) an exchange
of all of such Obligated Partner’s remaining Units for shares of Common Stock
or preferred stock of the Public REIT (pursuant to a Rights Agreement) or in an
otherwise taxable sale or exchange of all of such Obligated Partner’s Units
provided that at the time of or during such six-month period following such
event set forth in (ii)(A) or (B), there has not been: (X) an entry
of decree or order for relief in respect of the Partnership by a court having
jurisdiction over a substantial part of the Partnership’s assets, or the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar Official) of the Partnership or of any
substantial part of its property, ordering the winding up or liquidation of the
Partnership’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 (Y) the commencement
against the Partnership 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 (Z) the commencement by
the Partnership of a voluntary case under the federal bankruptcy laws, as now
or hereafter constituted, or 


 


31

















 


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 Partnership 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 the Partnership generally to pay its debts as such debts become due
or the taking of any action in furtherance of any of the foregoing.  Following the passage of the six-month period
after the event set forth in clause (ii)(A) or (B) of this paragraph,
an Obligated Partner shall cease to be an Obligated Partner at the first time,
if any, that all of the conditions set forth in (X) through (Z) above
are no longer in existence.


 


(c)           Notwithstanding any
other  provision of this Agreement, Koury
Corporation shall cease to be an Obligated Partner immediately upon the earlier
of (i) any date which is selected by Koury Corporation as the date upon
which its status as an Obligated Partner hereunder shall terminate (and for
which notice of such selected date shall be given at least 60 days prior to
such selected date, but only if such selected date is not earlier than the
first anniversary date of the last day of the Partnership’s most recent
completed tax year in which Koury Corporation’s Protected Amount increased),
(ii) an exchange of all of Koury Corporation’s remaining Units for shares
of Common Stock of the Public REIT (pursuant to a Rights Agreement) or in an
otherwise taxable sale, or exchange of all of such Obligated Partner’s Units;
or (iii) the Partnership’s termination, for a Partnership purposes, of
Koury Corporation’s status as an Obligated Partner on any date that follows
March 5, 2017.


 


ARTICLE VIII


 


Transfer of Units


 


8.1          General Partner Transfer.  The General Partner shall not withdraw from
the Partnership and shall not sell, assign, pledge, encumber or otherwise
dispose of all or any portion of its Units, either to a new General Partner or
a Limited Partner, without the Consent of the Limited Partners.  Upon any transfer of Units to a new General
Partner in accordance with the provisions of this Section 8.1, the
transferee General Partner shall become vested with the powers and rights of
the transferor General Partner, and shall be liable for all obligations and
responsible for all duties of the General Partner, once such transferee has
executed such instruments as may be necessary to effectuate such admission and
to confirm the agreement of such transferee to be bound by all the terms and
provisions of this Agreement with respect to the Units so acquired.  It is a condition to any transfer of Units to
a new General Partner otherwise permitted hereunder that the transferee assumes
by operation of law or express agreement all of the obligations of the
transferor General Partner 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 General Partner are assumed by a successor corporation by operation
of law), shall relieve the transferor General Partner of its obligations under
this Agreement without the Consent of the Limited Partners, in their reasonable
discretion.  In the event the General
Partner withdraws from the Partnership in violation of this Agreement or
otherwise, or dissolves or terminates or upon the Bankruptcy of 


 


32

















 


the General Partner, a Majority-in-Interest of the
Limited Partners may elect to continue the Partnership business by selecting a
substitute general partner. 
Notwithstanding the foregoing, the General Partner shall be permitted at
any time, and from time to time, to transfer its Units to the Affiliate Limited
Partner or liquidate into one or more subsidiaries of the Public REIT or one or
more subsidiaries thereof without the Consent of the Limited Partners;
provided, however, that such transfer or liquidation shall not materially
change the proportionate direct or indirect ownership in the Partnership by the
Public REIT and, in the event of the liquidation of the General Partner, the
Affiliate Limited Partner (or its successor) shall select a new General
Partner; provided further, such new General Partner shall be under the Control
of the Public REIT.


 


8.2          Transfers by Limited
Partners.  Each
Limited Partner shall, subject to the provisions of this Section 8.2 and
Section 8.4 hereof, have the right to transfer all or a portion of its
Units to any Person, whether or not in connection with the exercise of the
Rights.  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 Limited
Partner 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 Partner are assumed by a
successor corporation by operation of law) shall relieve the transferor Partner
of its obligations under this Agreement without the approval of the General
Partner in its reasonable discretion. 
Upon such transfer, the transferee shall be admitted as a substituted
limited partner as such term is defined in the Act (the “Substituted Limited
Partner”) and shall succeed to all of the 
rights of the transferor Limited Partner under this Agreement in the
place and stead of such transferor Limited Partner; provided, however, that
notwithstanding the foregoing, any transferee of any transferred Units, to the
extent such transferee is entitled to exercise Rights under the Rights
Agreement, shall be subject to any and all ownership limitations contained in
the Charter which may limit or restrict such transferee’s ability to exercise
the Rights.  Any transferee, whether or
not admitted as a Substituted Limited Partner, shall take subject to the
obligations of the transferor hereunder. 
Unless admitted as a Substituted Limited Partner, 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
Partnership as are allocable to the Units transferred.  Notwithstanding the foregoing, without the
Consent of the Limited Partners, the Affiliate Limited Partner shall not
transfer its Units in the Partnership, and shall not suffer or permit the
transfer or issuance of interests in itself, unless the transferee of such
Units or interests is under the Control of the Public REIT and the Public REIT’s
direct and indirect ownership interest in the Partnership is not materially
altered.


 


8.3          Issuance of Additional
Common Units.


 


(a)           At any time without the
consent of any Partner, but subject to the provisions of Section 8.4
hereof, the General Partner may, upon its determination that the issuance of
additional Common Units (“Additional Units”) is in the best interests of
the Partnership, cause the Partnership to issue Additional Units to and admit
as a Limited Partner in the Partnership, any Person (the “Additional Partner”)
in exchange for the contribution by such Person of cash and/or property
desirable to further the purposes of the Partnership under Section 2.3
hereof.  The number of Additional Units
issued to any Additional Partner shall be equal to the product of the
(a) Conversion Factor multiplied


 


33

















 


by (b) the quotient of
(i) the Gross Asset Value of the property contributed by the Additional
Partner (net of liabilities assumed by the Partnership in connection with the
contribution of such property to the Partnership or to which such property is
subject) as of the date of contribution (the “Contribution Date”)
divided by (ii) Current Per Share Market Price in respect of such transaction,
and the General Partner may admit an Additional Partner to the Partnership upon
such other terms as it deems appropriate. 
The General Partner shall be authorized on behalf of each of the
Partners to amend this Agreement to reflect the admission of any Additional
Partner in accordance with the provisions of this Section 8.3 in the event
that the General Partner deems such amendment to be desirable, and the General
Partner promptly shall deliver a copy of such amendment to each Limited
Partner.  Notwithstanding anything
contained herein to the contrary, an Additional Partner that acquires
Additional Units pursuant to this Section 8.3 shall not acquire any
interest in and may not exercise or otherwise participate in any Rights
pursuant to the Rights Agreements unless they are expressly granted such
rights.


 


(b)           (i) Upon issuance by
either of the General Partner or the Public REIT of shares of its common stock
pursuant to the CSA or in settlement of any dispute relating to the CSA, the
Partnership shall issue to the General Partner an equal number of Common Units
and (ii) upon issuance of shares of its preferred stock pursuant to the
CSA, the Partnership shall issue to the General Partner an equal number of
Preferred Units with terms that are equivalent to the terms of such shares of
preferred stock.  Notwithstanding
anything to the contrary contained in the Partnership Agreement, if there are
one or more actual or deemed distributions which would otherwise be treated as
giving rise to a “disguised sale” under Section 707 of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations promulgated
thereunder, such distributions shall be treated as having been made in
reimbursement of the General Partner’s preformation capital expenditures as
described in Reg. 1.707-4 (d) and Rev. Rul. 2000-44 to the extent of such
preformation capital expenditures.


 


8.4          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 Partner be made (i) to any Person who lacks the legal right, power
or capacity to own Units; (ii) 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 Partnership or any Property Partnership is a party or
otherwise bound; (iii) in violation of applicable law; (iv) 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
(other than such assignments of the right to receive distributions as the
General Partner shall approve in writing which approval the General Partner may
withhold in its sole discretion); (v) in the event such transfer would
cause the REIT Entities to cease to comply with the REIT requirements;
(vi) if such transfer would cause a termination of the Partnership for
federal income tax purposes; (vii) if such transfer would, in the opinion
of counsel to the Partnership, cause the Partnership to cease to be classified
as a partnership for federal income tax purposes; (viii) if such transfer
would, in the opinion of counsel to the Partnership, cause any assets of the
Partnership to constitute assets of a benefit plan investor pursuant to 29
C.F.R. § 2510.3-101, as modified by Section 3(42) of the Employee
Retirement Income Security Act of 1974, as amended or (ix) if such
transfer is effectuated through an “established securities market” or 


 


34

















 


“secondary market” (or the substantial equivalent
thereof) within the meaning of Section 7704 of the Code or such transfer
causes the Partnership to become a “publicly traded partnership” as such term
is defined in Section 7704(b) of the Code.  Notwithstanding anything in this Agreement to
the contrary:


 


(a)           no Limited Partner admitted
to the Partnership after June 29, 1998 may sell, assign or otherwise
transfer its Units or other interest in the Partnership or any portion thereof
to any Foreign Owner (and no interest in such Limited Partner or any Person
that directly or indirectly owns an interest in such Limited Partner may be
transferred if such Limited Partner shall become a Foreign Owner as the result
of such transfer) without the prior written consent of the General Partner
(which consent may be given or withheld in the sole discretion of the General
Partner); and


 


(b)           no other Limited Partner may
sell, assign or otherwise transfer its Units or other interest in the
Partnership or any portion thereof to any Foreign Owner (and no interest in
such Limited Partner or any Person that directly or indirectly owns an interest
in such Limited Partner may be transferred if such Limited Partner shall become
a Foreign Owner as the result of such transfer) without providing written
notice of the same to the General Partner. 
Any such written notice shall be received by the General Partner at
least thirty days prior to any such sale, assignment or other transfer.


 


Any
sale, assignment or other transfer of Units or other interests in the
Partnership made in violation of this Agreement (including without limitation
any sale, assignment or other transfer of Units made without giving the notice
described above at the time described above) shall be null and void ab  initio.


 


ARTICLE IX


 


Rights and Obligations of
the Limited Partners


 


9.1          No Participation in
Management.  Except as
expressly permitted hereunder, the Limited Partners shall not take part in the
management of the Partnership’s business, transact any business in the
Partnership’s name or have the power to sign documents for or otherwise bind
the Partnership.


 


9.2          Bankruptcy of a Limited
Partner.  The Bankruptcy of any Limited
Partner shall not cause a dissolution of Partnership, but the rights of such
Limited Partner to share in the Net Profits or Net Losses of the Partnership
and, to receive distributions of Partnership 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 Partnership shall continue as a limited
partnership.  However, in no event shall
such assignee(s) become a Substituted Limited Partner without the consent
of the General Partner.


 


9.3          No Withdrawal. No Limited
Partner may withdraw from the Partnership without the prior written consent of
the General Partner, other than as expressly provided in this Agreement.


 


35














 


9.4          Duties and Conflicts. The General Partner recognizes
that the Limited Partners 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 of the
Partnership, and that such Persons are entitled to carry on such other business
interests, activities and investments. 
The Limited Partners and their Affiliates may engage in or possess an
interest in any other business or venture of any kind, independently or with
others, on their own behalf or on behalf of other entities with which they are
affiliated or associated, and such persons may engage in any activities,
whether or not competitive with the Partnership, without any obligation to
offer any interest in such activities to the Partnership or to any
Partner.  Neither the Partnership nor any
Partner shall have any right, by virtue of this Agreement, in or to such
activities, or the income or profits derived therefrom, and the pursuit of such
activities, even if competitive with the business of the Partnership, shall not
be deemed wrongful or improper.


 


ARTICLE X


 


Limited Partner
Representations and Warranties


 


Each
Limited Partner, severally, and not jointly and severally, represents and
warrants to the Partnership and the General Partner as follows:


 


(a)           Organization; Authority.  The Limited Partner (i) in the case of a
Person who is a natural person, has full power and authority to execute,
deliver and perform this Agreement or (ii) in the case of a Person which
is a corporation, limited liability company, partnership or trust, is a
corporation, limited liability company, partnership, corporation or trust, as
the case may be, duly formed, validly existing and in good standing (to the
extent applicable) under the laws of its jurisdiction of formation with the
requisite authority to execute,  deliver
and perform this Agreement.


 


(b)           Due Authorization; Binding Agreement.  The execution, delivery and performance of
this Agreement by the Limited Partner has been duly and validly authorized by
all necessary action of the Limited Partner in the case of a Limited Partner
which is an Entity.  This Agreement has
been duly executed and delivered by the Limited Partner, or an authorized
representative of the Limited Partner, and constitutes a legal, valid and
binding obligation of the Limited Partner, enforceable against the Limited
Partner in accordance with the terms hereof.


 


(c)           Consents and Approvals. No consent, waiver,
approval or authorization of, or filing, registration or qualification with, or
notice to, any governmental unit or any other Person is required to be made,
obtained or given by the Limited Partner in connection with the execution,
delivery and performance of this Agreement.


 


(d)           No Violation. None of the execution, delivery or
performance of this Agreement by the Limited Partner does or will, with or
without the giving of notice, lapse of time or both, (i) violate, conflict
with or constitute a default under any term or condition of (A) the organizational
documents of the Limited Partner or other agreement to which the Limited
Partner is a party or by which it is bound or (B) any judgment, decree,
order, statute, injunction, rule or regulation of a governmental unit
applicable to 


 


36

















 


the Limited Partner or by
which it or its assets or properties are bound or (ii) result in the
creation of any Lien or other encumbrance upon the assets or properties of the
Limited Partner.


 


ARTICLE XI


 


General Partner
Representations and Warranties


 


The
General Partner represents and warrants to the Partnership and the Limited
Partners as follows:


 


(a)           Organization; Authority.  The General Partner is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware with full corporate power to execute, deliver and perform this
Agreement.


 


(b)           Due Authorization; Binding Agreement.  The execution, delivery and performance of
this Agreement by the General Partner has been duly and validly authorized by
all necessary action of the General Partner. 
This Agreement has been duly executed and delivered by the General
Partner, or an authorized representative of the General Partner, and constitutes
a legal, valid and binding obligation of the General Partner, enforceable
against the General Partner in accordance with the terms hereof.


 


(c)           Consents and Approvals.  No consent, waiver, approval or authorization
of, or filing, registration or qualification with, or notice to, any governmental
unit or any other person is required to be made, obtained or given by the
General Partner in connection with the execution, delivery and performance of
this Agreement other than consents, waivers, approvals or authorizations which
have been obtained prior to the date hereof.


 


ARTICLE XII


 


Arbitration of Disputes


 


12.1        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
Partnership and any one or more of the Partners and any claims, disputes and
controversies between any one or more Partners) arising out of or in connection
with this Agreement or the Partnership relating to the validity, construction,
performance, breach, enforcement or termination thereof, or otherwise, shall be
resolved by binding arbitration in New York, New York, in accordance with this Article XII
and, to the extent not inconsistent herewith, the Expedited Procedures and
Commercial Arbitration Rules of the Arbitration Association.


 


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


 


(a)           The Partnership or any Partner (the “Requesting Party”)
may demand arbitration pursuant to Section 12.1 hereof at any time by
giving written notice of such 


 


37

















 


demand (the “Demand
Notice”) to all other Partners and (if the Requesting Party is not the
Partnership) to the Partnership 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 Partners
and/or the Partnership 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 present or former
partner of a nationally known accounting firm 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 only select a
present or former partner of a nationally known accounting firm having no
affiliation with any of the parties as the third Qualified Individual willing
to act as an arbitrator of the claim, dispute or controversy in question.  In the event that the two arbitrators
initially selected are unable to agree on a third arbitrator within the second
fifteen (15) day period referred to above, then, on the application of either
party, the American Arbitration Association shall promptly select and appoint a
present or former partner of a nationally known accounting firm 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.


 


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


 


12.4        Exclusivity. 
Arbitration shall be the exclusive method available for resolution of
claims, disputes and controversies described in Section 12.1 hereof, and
the Partnership and its Partners 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 


 


38

















 


such claim, controversy or dispute.  The provisions of this Article XII shall
survive the dissolution of  the
Partnership.


 


12.5        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 Partnership
Agreement.


 


ARTICLE XIII


 


General Provisions


 


13.1        Notices.  All
notices, offers or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and may be personally served,
telecopied or sent by United States mail and shall be deemed to have been given
when delivered in person, upon receipt of telecopy or three business days after
deposit in United States mail, registered or certified, postage prepaid, and
properly addressed, by or to the appropriate party.  For purposes of this Section 13.1, the
addresses of the parties hereto shall be as set forth in the books and records
of the Partnership.  The address of any
party hereto may be changed by a notice in writing given in accordance with the
provisions hereof.  Notwithstanding
anything to the contrary herein, no provision of this Partnership Agreement
requiring notice of any event prior to the occurrence thereof shall apply to
stock splits, subdivisions, dividends, combinations. or any other similar event
occurring after the date hereof.


 


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


 


13.3        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).


 


13.4        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 instrument.


 


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


 


13.6        Entire Understanding; Etc.  This Agreement, together with any and all
Contribution Agreements and Rights Agreements, constitutes the entire agreement
and understanding among the Partners and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
within (including without limitation the Second Restated Partnership Agreement
except for the consents, approvals and waivers given therein, and the
agreements by Partners to be bound by the provisions thereof, as the same is
amended hereby, which shall continue in full force and effect).


 


13.7        Amendments. 
Except as otherwise provided herein, this Agreement may not be amended,
and no provision may be waived, except by a written instrument signed by the
General 


 


39

















 


Partner (and, in the case of amendments or waivers
benefiting the Bucksbaum Limited Partners, approved on behalf of the General
Partner by at least a majority or its directors who are not Affiliates of the
Bucksbaum Limited Partners) and a Majority-In-Interest of the Limited Partners.  Notwithstanding anything to the contrary
contained herein, (a) without the written consent of a Limited Partner,
this Agreement may not be amended to convert such Limited Partner’s partnership
interest in the Partnership to a general partnership interest (or otherwise
adversely affect such Limited Partner’s limited liability) and (b) without
the written consent of a Limited Partner holding Common Units, this Agreement
may not be amended to materially adversely affect such Limited Partner’s rights
to distributions or allocations in respect of such Common Units except in
connection with the admission of Additional Partners or unless such amendment
affects the Bucksbaum Limited Partners in the same manner on a Unit-for-Unit
basis.  The immediately preceding sentence
of this Section 13.7 may not be amended to modify the approval rights of a
Partner without such Partner’s consent.


 


13.8        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.


 


13.9        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.


 


13.10      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.”


 


13.11      Assurances.  Each
of the Partners shall hereafter execute and deliver such further instruments
and do such further acts and things as may be required or useful to carry out
the intent and purpose of this Agreement and as are not inconsistent with the
terms hereof.


 


13.12      Issuance of Certificates.  The General Partner may, in its sole
discretion, issue a certificate setting forth the name of any Partner and the
number of Units owned by such Partner and, in such event, the General Partner
shall establish such rules and regulations relating to issuances and
reissuances of certificates upon transfer of Units, the division of Units among
multiple certificates and the loss, theft, destruction or mutilation of
certificates as the General Partner reasonably deems appropriate.  Notwithstanding anything to the contrary
contained herein or in any certificate, (a) no certificate issued by the
Partnership shall constitute a certificated security under Article 8 of
the Uniform Commercial Code or an instrument, (b) the issuance or
existence of certificates shall not create any rights on the part of the
holders of such certificates or other Persons that would not exist if such
certificates had not been issued, (c) the 


 


40

















 


Partnership shall have no liability to holders of
certificates or other persons that it would not have had if it had not issued
such certificates, and (d) only those Persons shown on the Partnership’s
book and records as the registered owner of any particular Unit shall have any
rights as a Limited Partner or otherwise with respect thereto.


 


13.13      November 20, 2003 Division of Common Units.  On November 20, 2003, (a) the
General Partner effected a three for one split of its common stock (the “Stock
Split”) and the Partnership effected a three for one split of the Common
Units, such that each Common Unit then outstanding was deemed to be three
Common Units, so that, as of such time, each holder of record of Common Units,
automatically and without further action, was deemed to be the holder of two
additional Common Units for each Common Unit held immediately prior to such
time (the “Unit Split”) and (b) there was no adjustment of the
Conversion Factor on account of the Stock Split; provided, however, that for
Common Units issued and outstanding on or prior to November 20, 2003 (the “Legacy
Units”), (x) if the rights under any Specified Rights Agreement (as
defined below) are exercised as to one or more Legacy Units, then, effective
immediately prior to the redemption or purchase of such Legacy Units pursuant
to such Specified Rights Agreement, the Unit Split shall be completely reversed
as to such Legacy Units and each such Legacy Unit, automatically and without
further action, shall be deemed to be one-third of a Common Unit and (y) if
such Legacy Units are transferred to the General Partner (rather than the
Partnership) pursuant to such Specified Rights Agreement, then, effective
immediately following such transfer, the Unit Split shall be completely
reinstated as to such Legacy Units and each such Legacy Unit, automatically and
without further action, shall be deemed to be three Common Units.  For purposes hereof, a “Specified Rights
Agreement” is any Rights Agreement pursuant to which the “Conversion Factor”
(or the equivalent) referred to therein is adjusted as the result of the Stock
Split and such adjustment is not completely reversed as a result of the Unit
Split.  The purpose of the proviso
contained in the first sentence of this paragraph is to ensure that there are
not duplicative adjustments with respect to any Legacy Units on account of the
Stock Split, and this Section 13.3 shall be interpreted and applied
consistently therewith.


 


13.14      Performance by the Public REIT.  The Public REIT shall cause the General
Partner and the Affiliate Limited Partner to fulfill the obligations of the
General Partner and Affiliate Limited Partner, as applicable, under this
Agreement.


 


41

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this
Agreement to be executed as of the date and year first above written.


 


	
   

  	
  GENERAL
  PARTNER:

  
	
   

  	
   

  
	
   

  	
  GGP, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AFFILIATE
  LIMITED PARTNER:

  
	
   

  	
   

  
	
   

  	
  GGP
  LIMITED PARTNERSHIP II, a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  GGP, Inc.,
  a Delaware corporation, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  
					



 


SIGNATURE
PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP


 

















 


	
   

  	
  MAJORITY-IN-INTEREST
  OF

  
	
   

  	
  THE
  LIMITED PARTNERS:

  
	
   

  	
   

  
	
   

  	
  M.B.
  CAPITAL UNITS, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  M.B.
  CAPITAL PARTNERS III,

  
	
   

  	
   

  	
  a
  South Dakota general partnership,

  
	
   

  	
   

  	
  its
  sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  General
  Trust Company,

  
	
   

  	
   

  	
   

  	
  as
  Trustee of MBA Trust,

  
	
   

  	
   

  	
   

  	
  a
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  E.
  Michael Greaves,

  
	
   

  	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MATTHEW
  BUCKSBAUM REVOCABLE

  
	
   

  	
  TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  General
  Trust Company,

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  E.
  Michael Greaves,

  
	
   

  	
   

  	
   

  	
  Vice
  President

  



 


SIGNATURE
PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP


 

















 


	
   

  	
  Solely
  for the limited purpose set forth in Sections 4.3, 4.4, 5.4, 6.5, 8.1 and
  13.14.

  
	
   

  	
   

  
	
   

  	
  PUBLIC
  REIT:

  
	
   

  	
   

  
	
   

  	
  GENERAL GROWTH PROPERTIES, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:
  

  	
   

  



 


SIGNATURE
PAGE TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP


 














 


SCHEDULE A


 


1.             Definitions.  As used in this Schedule A, the following
terms shall have the meanings set forth below, unless the context otherwise
requires:


 


“Distribution
Period” shall mean the quarterly period that is then the dividend period
with respect to the Common Stock or, if no such dividend period is established,
the calendar quarter shall be the Dividend Period; provided that (a) the
initial distribution period shall commence on July 10, 2002 and end on and
include September 30, 2002 and (b) the distribution period in which
the final liquidation payment is made pursuant to Section 7.2 of the Third
Amended and Restated Agreement of Limited Partnership shall commence on the
first day following the immediately preceding Distribution Period and end on
the date of such final liquidation payment.


 


“Distribution
Payment Date” shall mean, with respect to any Distribution Period, the
payment date for the distribution declared by the Public REIT on its shares of
Common Stock for such Distribution Period or, if no such distribution payment
date is established, the last business day of such Distribution Period.


 


“Fair
Market Value” shall mean the average of the daily Closing Price during the
five consecutive Trading Days selected by the General Partner commencing not
more than 20 Trading Days before, and ending not later than, the day in
question with respect to the issuance or distribution requiring such
computation.


 


“Fifteenth
Anniversary Date” shall mean July 10, 2017.


 


2.             Designation and Number; Etc.  The Series B 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 Third Amended and Restated
Agreement of Limited Partnership to the extent applicable).  The authorized number of Series B
Preferred Units shall be 1,426,392.6660. 
Notwithstanding anything to the contrary contained herein, in the event
of a conflict between the provisions of this Schedule A and any other provision
of the Third Amended and Restated Agreement of Limited Partnership, the
provisions of this Schedule A shall control. 
For purposes of this Amendment, the rights of the Series B
Preferred Units shall be construed to include their rights under the Redemption
Rights Agreement (Common Units) and Redemption Rights Agreement (Series B
Preferred Units).


 


3.             Rank.  The Series B Preferred Units shall, with
respect to the payment of distributions and the distribution of amounts upon
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, rank as follows:


 


(a)           senior to all classes or
series of Common Units and to all Units the terms of which provide that such
Units shall rank junior to such Series B Preferred Units;


 


(b)           on a parity with the Series D
Preferred Units, the Series E Preferred Units and each other series of
Preferred Units issued by the Partnership which does not provide by its express
terms that it ranks junior in right of payment to the Series B Preferred
Units with respect to payment of distributions or amounts upon liquidation,
dissolution or winding-up; and


 

















 


(c)           junior to any class or
series of Preferred Units issued by the Partnership that ranks senior to the
Series B Preferred Units in accordance with Section 4 of this
Schedule A.


 


4.             Voting.


 


(a)           Holders of Series B
Preferred Units shall not have any voting rights, except as provided by
applicable law and as described below in this Section 4.


 


(b)           So long as any Series B
Preferred Units remain outstanding, the Partnership shall not, without the
affirmative vote or consent of the holders of at least a majority of the
Series B Preferred Units outstanding at the time, given in person or by
proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize, create, issue or increase the authorized or issued
amount of, any class or series of partnership interests in the Partnership
ranking prior to the Series B Preferred Units with respect to the payment
of distributions or the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership or reclassify any
Common Units into such partnership interests, or create, authorize or issue any
obligation or security convertible or exchangeable into or evidencing the right
to purchase any such partnership interests; or (ii) amend, alter or repeal
the provisions of the Partnership Agreement, whether by merger or consolidation
or otherwise (an “Event”), so as to materially and adversely affect any
right, preference, privilege or voting power of the Series B Preferred
Units or the holders thereof. 
Notwithstanding anything to the contrary contained herein, none of the
following shall be deemed to materially and adversely affect any such right,
preference, privilege or voting power or otherwise require the vote or consent
of the holders of the Series B Preferred Units: (X) the occurrence of
any Event so long as either (1) the Partnership is the surviving entity, such
entity is the principal direct subsidiary of a publicly traded REIT whose
common equity is traded on the New York Stock Exchange and the Series B
Preferred Units remain outstanding with the terms thereof materially unchanged
or (2) interests in an entity having substantially the same rights and
terms as the Series B Preferred Units are substituted for the
Series B Preferred Units and such entity is the principal direct
subsidiary of a publicly traded REIT whose common equity is traded on the New
York Stock Exchange, (Y) any increase in the amount of the authorized
Preferred Units or Common Units or the creation or issuance of any other series
or class of Preferred Units or Common Units or any increase in the amount of
Common Units or any other series of Preferred Units, in each case ranking on a
parity with or junior to the Series B Preferred Units with respect to
payment of distributions and the distribution of assets upon voluntary or
involuntary liquidation, dissolution or winding-up of the Partnership and (Z) the
dissolution, liquidation and/or winding-up of the Partnership.


 


The
foregoing voting provisions shall not apply if at or prior to the time when the
act with respect to which such vote would otherwise be required shall be
effected, all outstanding Series B Preferred Units shall have been
converted or redeemed.


 


For
purposes of the foregoing provisions of this Section 4, each Series B
Preferred Unit shall have one (1) vote. 
Except as otherwise required by applicable law or as set forth herein,
the Series B Preferred Units shall not have any voting rights or powers
and the consent of the holders thereof shall not be required for the taking of
any action.


 


A-2

















 


5.             Distributions.


 


(a)           With respect to each
Distribution Period and subject to the rights of the holders of Preferred Units
ranking senior to or on parity with the Series B Preferred Units, the
holders of Series B Preferred Units shall be entitled to receive, when, as
and if declared by the General Partner, out of assets of the Partnership
legally available for the payment of distributions, quarterly cumulative cash
distributions in an amount per Series B Preferred Unit equal to the
greater of (i) $1.0625 and (ii) the amount of the regular quarterly
cash distribution for such Distribution Period upon the number of Common Units
(or portion thereof) into which such Series B Preferred Unit is then
convertible in accordance with Section 7 of this Schedule A (but,
with respect to any Distribution Period ending after the Fifteenth Anniversary
Date, no amount shall be paid in respect of clause (ii) of this
paragraph in respect of the portion of such Distribution Period occurring after
the Fifteenth Anniversary Date). 
Notwithstanding anything to the contrary contained herein, the amount of
distributions described under each of clause (i) and (ii) of
this paragraph for the initial Distribution Period, or any other period shorter
than a full Distribution Period, shall be prorated and computed on the basis of
twelve 30-day months and a 360-day year. 
The distributions upon the Series B Preferred Units for each
Distribution Period shall, if and to the extent declared or authorized by the
General Partner on behalf of the Partnership, be paid in arrears (without
interest or other amount) on the Distribution Payment Date with respect
thereto, and, if not paid on such date, shall accumulate, whether or not there
are funds legally available for the payment thereof and whether or not such
distributions are declared or authorized.  The record date for distributions upon the
Series B Preferred Units for any Distribution Period shall be the same as
the record date for the distributions upon the Common Units for such
Distribution Period (or, if no such record is set for the Common Units, the
fifteenth day of the calendar month in which the applicable Distribution
Payment Date falls).  Accumulated and
unpaid distributions for any past Distribution Periods to be declared and paid
at any time, without reference to any Distribution Payment Date, to holders of
record on such date, not exceeding 45 days preceding the payment date thereof,
as may be fixed by the General Partner. 
Any distribution payment made upon the Series B Preferred Units
shall first be credited against the earliest accumulated but unpaid
distributions due with respect to such Units which remains payable.  No interest, or sum of money in lieu of
interest, shall be owing or payable in respect of any distribution payment or
payments on the Series B Preferred Units, whether or not in arrears,
including, without limitation, any distribution payment that is deferred
pursuant to Section 5(g) of this Schedule A.


 


(b)           No distribution on the
Series B Preferred Units shall be declared by the General Partner or paid
or set apart for payment by the Partnership at such time as the terms and
provisions of any agreement of the Partnership, including any agreement
relating to its indebtedness, prohibits such declaration, payment or setting
apart for payment or provides that such declaration, payment or setting apart
for payment would constitute a breach thereof, or a default thereunder, or if
such declaration or payment shall be restricted or prohibited by law.  Notwithstanding the foregoing, distributions
on the Series B Preferred Units shall accumulate whether or not any of the
foregoing restrictions exist.


 


(c)           Except as provided in
Section 5(d) of this Schedule A, so long as any Series B
Preferred Units are outstanding, (i) no distributions (other than in
Common Units or other Units ranking junior to the Series B Preferred Units
as to payment of distributions and 


 


A-3

















 


amounts upon liquidation, dissolution or winding-up
of the Partnership) shall be declared or paid or set apart for payment upon the
Common Units or any other class or series of partnership interests in the
Partnership or Units ranking, as to payment of distributions or amounts
distributable upon liquidation, dissolution or winding-up of the Partnership,
on a parity with or junior to the Series B Preferred Units, for any period
and (ii) no Common Units or other Units ranking junior to or on a parity
with the Series B Preferred Units as to payment of distributions or
amounts upon liquidation, dissolution or winding-up of the Partnership, shall
be redeemed, purchased or otherwise acquired for any consideration (or any
monies be paid to or made available for a sinking fund for the redemption of
any such Units) by the Partnership (except by conversion into or exchange for
other Units ranking junior to the Series B Preferred Units as to payment
of distributions and amounts upon liquidation, dissolution or winding-up of the
Partnership or by redemptions pursuant to Rights Agreements) unless, in the
case of either clause (i) or (ii), full cumulative distributions have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Series B Preferred
Units for all Distribution Periods ending on or prior to the distribution
payment date for the Common Units or such other class or series of Unit or the
date of such redemption, purchase or other acquisition.


 


(d)           When distributions are not
paid in full (or a sum sufficient for such full payment is not set apart for
such payment) upon the Series B Preferred Units and any other partnership
interests in the Partnership or Units ranking on a parity as to payment of
distributions with the Series B Preferred Units, all distributions
declared upon the Series B Preferred Units and any other partnership
interests in the Partnership or Units ranking on a parity as to payment of
distributions with the Series B Preferred Units shall be declared pro rata
so that the amount of distributions declared per Unit of Series B Preferred
Units and such other partnership interests in the Partnership or Units shall in
all cases bear to each other the same ratio that accrued distributions per Unit
on the Series B Preferred Units and such other partnership interests in
the Partnership or Units (which shall not include any accumulation in respect
of unpaid distributions for prior distribution periods if such Units do not
have cumulative distributions) bear to each other.


 


(e)           Holders of Series B
Preferred Units shall not be entitled to any distributions, whether payable in
cash, property or Units, in excess of the cumulative distributions described in
Section 5(a) above.


 


(f)            Distributions with respect
to the Series B Preferred Units are intended to qualify as permitted
distributions of cash that are not treated as a disguised sale within the
meaning of Treasury Regulation §1.707-4 and the provisions of this
Schedule A shall be construed and applied consistently with such Treasury
Regulations.


 


(g)           Notwithstanding anything to
the contrary contained herein (but subject to the last sentence of
Section 5(a) hereof), if the distributions with respect to the
Series B Preferred Units made on or prior to the second anniversary of the
issuance of the Series B Preferred Units would result in any holder of Series B
Preferred Units receiving, an annual return on such holder’s “unreturned
capital” (as defined for purposes of Treasury Regulation
Section 1.707-4(a)) for a fiscal year (treating the fiscal year in which
such second anniversary occurs as ending on such date) in excess of the Safe
Harbor Rate (as defined below), then the distributions to such 


 


A-4

















 


holder in excess of such Safe Harbor Rate will be
deferred, will cumulate and will be paid, if and to the extent declared or
authorized by the General Partner on behalf of the Partnership and subject, to
the provisions of Section 5(b) hereof, on the earlier to occur of
(i) the disposition of the Series B Preferred Units to which such
deferred distributions relate in a transaction in which the disposing holder
recognizes taxable gain thereon or (ii) the first distribution payment
date with respect to the Series B Preferred Units following the second
anniversary of the issuance of the Series B Preferred Units.  For purposes of the foregoing, the “Safe
Harbor Rate” shall equal 150% of the highest applicable federal rate, based on
annual compounding, in effect for purposes of Section 1274(d) of the
Code at any time between the date of the issuance of the Series B
Preferred Units and the date on which the relevant distribution payment is
made.  Notwithstanding anything to the
contrary contained herein, any distributions that are deferred under this
Section 5(g) shall be deemed to have been paid in full for purposes
of Sections 5(c) and (d) of this Schedule A until the end
of the Distribution Period during which they are to be paid as provided above.


 


(h)           For any quarterly period,
any amounts paid with respect to the Series B Preferred Units in excess of
the amount that would have been paid with respect to such Units for such period
had they been converted into Common Units in accordance with the terms of
Section 7 of this Schedule A are intended to constitute guaranteed
payments within the meaning of Section 707(c) of the Code and shall
not be treated as distributions for purposes of allocating Net Income and Net
Loss or otherwise maintaining Capital Accounts.


 


6.             Liquidation Preference.


 


(a)           In the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, before any payment or distribution of the assets of the
Partnership (whether capital or surplus) shall be made to or set apart for the
holders of Common Units or any other partnership interests in the Partnership
or Units ranking junior to the Series B Preferred Units as to the
distribution of assets upon the liquidation, dissolution or winding-up of the
Partnership, the holders of the Series B Preferred Units shall, with
respect to each such Unit, be entitled to receive, out of the assets of the
Partnership available for distribution to Partners after payment or provision
for payment of all debts and other liabilities of the Partnership, an amount
equal to the greater of (i) $50.00, plus an amount equal to all
distributions (whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution and (ii) the amount that a holder of such
Series B Preferred Unit would have received upon final distribution in
respect of the number of Common Units into which such Series B Preferred
Unit was convertible immediately prior to such date of final distribution (but
no amount shall be paid in respect of the foregoing clause (ii) after
the Fifteenth Anniversary Date) if, upon any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, the assets of the
Partnership, or proceeds thereof, distributable among the holders of the
Series B Preferred Units are insufficient to pay in full the preferential
amount aforesaid on the Series B Preferred Units and liquidating payments
on any other Units or partnership interests in the Partnership of any class or
series ranking, as to payment of distributions and amounts upon the
liquidation, dissolution or winding-up of the Partnership, on a parity with the
Series B Preferred Units, then such assets, or the proceeds thereof, shall
be distributed among the holders of Series B Preferred Units and any such
other Units or partnership interests in the Partnership ratably in accordance
with the respective amounts that would be payable on such Series B
Preferred Units and such 


 


A-5

















 


other Units or partnership interests in the
Partnership if all amounts payable thereon were paid in full.  For the purposes of this Section 6, none
of (i) a consolidation or merger of the Partnership with or into another
entity, (ii) a merger of another entity with or into the Partnership or
(iii) a sale, lease or conveyance of all or substantially all of the
Partnership’s assets, properties or business shall be deemed to be a
liquidation, dissolution or winding-up of the Partnership.


 


(b)           Written notice of such
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by first class mail,
postage pre-paid, not less than 30 nor more than 60 days prior to the payment
date stated therein, to each record holder of the Series B Preferred Units
at the respective addresses of such holders as the same shall appear on the
transfer records of the Partnership.


 


(c)           After payment of the full
amount of liquidating distributions to which they are entitled as provided in
Section 6(a) of this Schedule A, the holders of Series B
Preferred Units shall have no right or claim to any of the remaining assets of
the Partnership.


 


7.             Conversion.  Holders of Series B Preferred Units
shall have the right to convert all or a portion of such Units into Common
Units, as follows:


 


(a)           A holder of Series B
Preferred Units shall have the right, at such holder’s option, at any time
(subject to the proviso contained in the immediately succeeding sentence), to
convert any whole number of Series B Preferred Units, in whole or in part,
into Common Units.  Each Series B
Preferred Unit shall be convertible into the number of Common Units determined
by dividing (i) the $50.00 face amount per Unit, plus an amount equal to
all distributions (whether or not earned or declared) accrued and unpaid thereon
to the end of the last Distribution Period (but without duplication of the
distributions, if any, which the holder of such Series B Preferred Unit is
entitled to receive for such last Distribution Period pursuant to the third
paragraph of Section 7(b) of this Schedule A or in respect of
the Common Units into which such Series B Preferred Unit is converted) by
(ii) a conversion price of $16.6667 per Common Unit (equivalent to a
conversion rate of three Common Units for each Series B Preferred Unit)(1),
subject to adjustment as described in Section 7(c) hereof (the “Conversion
Price”); provided, however, that the right to convert
Series B Preferred Units may not be exercised after the Fifteenth
Anniversary Date.  No fractional Common
Units will be issued upon any conversion of Series B Preferred Units.  Instead, the number of Common Units to be
issued upon each conversion shall be rounded to the nearest whole number of
Common Units.


 


(b)           To exercise the conversion
right, the holder of each Series B Preferred Unit to be converted shall
execute and deliver to the General Partner, at the principal office of the
Partnership, a written notice (the “Conversion Notice”) indicating that the
holder thereof elects to convert such Series B Preferred Unit.  Unless the Units issuable on conversion are
to be issued in the same name as the name in which such Series B Preferred
Unit is registered, each Series B Preferred Unit surrendered for
conversion shall be accompanied by instruments of transfer, in form reasonably
satisfactory to the Partnership, duly executed by the holder or such 


 






(1) 
The conversion price of $16.6667 per Common Unit takes into consideration the
Common Unit split of the Partnership on November 20, 2003.


 


A-6

















 


holder’s duly authorized attorney and an amount
sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Partnership demonstrating that such taxes have been paid).


 


As
promptly as practicable after delivery of the Conversion Notice as aforesaid,
the Partnership shall amend the Partnership Agreement to reflect the conversion
and the issuance of Common Units issuable upon the conversion of such
Series B Preferred Units in accordance with the provisions of this Section 7.  In addition, the Partnership shall deliver to
the holder at its address as reflected on the records of the Partnership, a
copy of such amendment.


 


A
holder of Series B Preferred Units at the close of business on the record
date for any Distribution Period shall be entitled to receive the distribution
payable on such Units on the corresponding Distribution Payment Date
notwithstanding the conversion of such Series B Preferred Units following
such record date and prior to such Distribution Payment Date and shall have no
right to receive any distribution for such Distribution Period in respect of
the Common Units into which such Series B Preferred Units were
converted.  Except as provided herein,
the Partnership shall make no payment or allowance for unpaid distributions,
whether or not in arrears, on converted Series B Preferred Units or for
distributions on the Common Units that are issued upon such conversion.


 


Each
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which the Conversion Notice is received by the
Partnership as aforesaid, and the person or persons in whose name or names any
Common Units shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of such Units at such time on such date,
and such conversion shall be at the Conversion Price in effect at such time and
on such date unless the transfer books of the Partnership shall be closed on
that date, in which event such person or persons shall be deemed to have become
such holder or holders of record at the close of business on the next
succeeding day on which such transfer books are open, but such conversion shall
be at the Conversion Price in effect on the date on which such Units have been
surrendered and such notice received by the Partnership.


 


(c)           The Conversion Price shall
be adjusted from time to time as follows:


 


(i)            If the Partnership shall,
after the date on which the Series B Preferred Units are first issued (the
“Issue Date”), (A) pay or make a distribution to holders of its
partnership interests or Units in Common Units, (B) subdivide its
outstanding Common Units into a greater number of Units or distribute Common
Units to the holders thereof, (C) combine its outstanding Common Units
into a smaller number of Units or (D) issue any partnership interests or
Units by reclassification of its Common Units, the Conversion Price in effect
at the opening of business on the day following the date fixed for the
determination of holders entitled to receive such distribution or at the
opening of business on the day next following the day on which such
subdivision, combination or reclassification becomes effective, as the case may
be, shall be adjusted so that the holder of any Series B Preferred Unit
thereafter surrendered for conversion shall be entitled to receive the number
of Common Units or other partnership interests or securities that such holder
would have owned or have been entitled to receive after the happening of any of
the events described above had such Series B Preferred Unit been 


 


A-7

















 


converted immediately prior
to the record date in the case of a distribution or the effective date in the
case of a subdivision, combination or reclassification.  An adjustment made pursuant to this
subsection (i) shall become effective immediately after the opening
of business on the day next following the record date (except as provided in
subsection (g) below) in the case of a distribution and shall become
effective immediately after the opening of business on the day next following
the effective date in the case of a subdivision, combination or
reclassification.


 


(ii)           If the Partnership shall
issue after the Issue Date rights, options or warrants to all holders of Common
Units entitling them to subscribe for or purchase Common Units (or securities
convertible into or exchangeable for Common Units) at a price per Unit less
than the Fair Market Value per Common Unit on the record date for the determination
of holders of Common Units entitled to receive such rights, options or
warrants, then the Conversion Price in effect at the opening of business on the
day next following such record date shall be adjusted to equal the price
determined by multiplying (I) the Conversion Price in effect immediately
prior to the opening of business on the day following the date fixed for such
determination by (II) a fraction, the numerator of which shall be the sum
of (A) the number of Common Units outstanding at the close of business on
the date fixed for such determination and (B) the number of Common Units
that the aggregate proceeds to the Partnership from the exercise of such
rights, options or warrants for Common Units would purchase at such Fair Market
Value, and the denominator of which shall be the sum of (A) the number of
Common Units outstanding at the close of business on the date fixed for such
determination and (B) the number of additional Common Units offered for
subscription or purchase pursuant to such rights, options or warrants.  Such adjustment shall become effective
immediately after the opening of business on the day next following such record
date (except as provided in subsection (g) below).  In determining whether any-rights, options or
warrants entitle the holders of Common Units to subscribe for or purchase
Common Units at less than the Fair Market Value, there shall be taken into
account any consideration received by the Partnership upon issuance and upon
exercise of such rights, options or warrants, the value of such consideration,
if other than cash, to be determined in good faith by the Board of the General
Partner.


 


(iii)          If the Partnership shall
distribute after the Issue Date to all holders of Common Units any other
securities or evidences of its indebtedness or assets (excluding those rights,
options and warrants referred to in and treated under subsection (ii) above,
and excluding distributions paid exclusively in cash) (any of the foregoing
being hereinafter in this subsection (iii) called the “Securities”),
then in each case the Conversion Price shall be adjusted so that it shall equal
the price determined by multiplying (I) the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of holders of Common Units entitled to receive such distribution
by (II) a fraction, the numerator of which shall be the Fair Market Value
per Common Unit on the record date mentioned below less the then fair market
value (as determined in good faith by the Board of the General Partner) of the
portion of the Securities so distributed applicable to the Common Unit, and the
denominator of which shall be the Fair Market Value per Common Unit on the
record date mentioned below.  Such
adjustment shall become effective immediately at the opening of business on the



 


A-8

















 


business day next following
(except as provided in subsection (g) below) the record date for the
determination of holders of Common Units entitled to receive such
distribution.  For the purposes of this
subsection (iii), a distribution in the form of a Security, which is
distributed not only to the holders of the Common Units on the date fixed for
the determination of holders of Common Units entitled to such distribution of
such Security, but also is distributed with each Common Unit delivered to a
person converting a Series B Preferred Unit after such determination date,
shall not require an adjustment of the Conversion Price pursuant to this
subsection (iii); provided that on the date, if any, on which a person
converting a Series B Preferred Unit would no longer be entitled to
receive such Security with a Common Unit, a distribution of such Securities
shall be deemed to have occurred, and the Conversion Price shall be adjusted as
provided in this subsection (iii) (and such day shall be deemed to be “the
date fixed for the determination of the holders of Common Units entitled to
receive such distribution” and “the record date” within the meaning of the two preceding
sentences).


 


(iv)          No adjustment in the
Conversion Price shall be required unless such adjustment would require a
cumulative increase or decrease of at least 1% in such price; provided, however,
that any adjustments that by reason of this subsection (iv) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment until made; and provided, further, that any
adjustment shall be required and made in accordance with the provisions of this
Section 7 (other than this subsection (iv)) not later than such time as
may be required in order to preserve the tax-free nature of a distribution to
the holders of Common Units. 
Notwithstanding any other provisions of this Section 7, the
Partnership shall not be required to make any adjustment to the Conversion
Price for the issuance of any Common Units pursuant to any plan providing for
the reinvestment of distributions or interest payable on securities of the
Partnership and the investment of additional optional amounts in Common Units
under such plan.  All calculations under
this Section 7 shall be made to the nearest cent (with $.005 being rounded
upward) or to the nearest one-tenth of a Unit (with .05 of a Unit being rounded
upward), as the case may be.  Anything in
this subsection (c) to the contrary notwithstanding, the Partnership
shall be entitled, to the extent permitted by law, to make such reductions in
the Conversion Price, in addition to those required by this subsection (c), as
it in its discretion shall determine to be advisable in order that any Unit
distributions, subdivision of Units, reclassification or combination of Units,
distribution of rights, options or warrants to purchase Units or securities, or
a distribution consisting of other assets (other than cash distributions)
hereafter made by the Partnership to its holders of Units shall not be taxable
but any such adjustment shall not adversely affect the value of the
Series B Preferred Units.


 


(d)           If the Partnership shall be
a party to any transaction (including, without limitation, a merger,
consolidation, self tender offer for all or substantially all of the Common
Units, sale of all or substantially all of the Partnership’s assets or
recapitalization of the Common Units and excluding any transaction as to which
subsection (c)(i) of this Section 7 applies) (each of the
foregoing being referred to herein as a “Transaction”), in each case as
a result of which Common Units shall be converted into the right to receive
other partnership interests, shares, stock, securities or other property
(including cash or any combination thereof), each Series B Preferred Unit
which is not converted into the right to receive other partnership interests,
shares, 


 


A-9

















 


stock, securities or other property in connection
with such Transaction shall thereafter be convertible into the kind and amount
of shares, stock, securities and other property (including cash or any
combination thereof) receivable upon the consummation of such Transaction by a
holder of that number of Common Units into which one Series B Preferred
Unit was convertible immediately prior to such Transaction, assuming such
holder of Common Units is not a Person with which the Partnership consolidated
or into which the Partnership merged or which merged into the Partnership or to
which such sale or transfer was made, as the case may be (a “Constituent
Person”), or an affiliate of a Constituent Person.  The Partnership shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this subsection (d), and it shall not consent or agree to the
occurrence of any Transaction until the Partnership has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series B Preferred Units that will contain
provisions enabling the holders of Series B Preferred Units that remain
outstanding after such Transaction to convert into the consideration received by
holders of Common Units at the Conversion Price in effect immediately prior to
such Transaction (with the holder having the option to elect the type of
consideration if a choice was offered in the Transaction).  The provisions of this subsection (d) shall
similarly apply to successive Transactions.


 


(e)           If:


 


(i)            the Partnership shall
declare a distribution on the Common Units (other than a cash distribution) or
there shall be a reclassification, subdivision or combination of Common Units;
or


 


(ii)           the Partnership shall
authorize the granting to the holders of the Common Units of rights, options or
warrants to subscribe for or purchase any Units of any class or any other
rights, options or warrants; or


 


(iii)          there shall be any
reclassification of the Common Units or any consolidation or merger to which
the Partnership is a party and for which approval of any partners of the
Partnership is required, involving the conversion or exchange of Common Units
into securities or other property, or a self tender offer by the Partnership
for all or substantially all of the Common Units, or the sale or transfer of
all or substantially all of the assets of the Partnership as an entirety; or


 


(iv)          there shall occur the
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership;


 


then
the Partnership shall cause to be mailed to the holders of the Series B
Preferred Units at their addresses as shown on the records of the Partnership,
as promptly as possible a notice stating (A) the date on which a record is
to be taken for the purpose of such distribution of rights, options or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Units of record to be entitled to such distribution of rights,
options or warrants are to be determined or (B) the date on which such
reclassification, subdivision, combination, consolidation, merger, sale,
transfer, liquidation, dissolution or winding-up is expected to become
effective, and the date as of which it is expected that holders of Common Units
of record shall be entitled to exchange their Common Units for securities or
other property, if any, 


 


A-10

















 


deliverable
upon such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding-up.  Failure to
give or receive such notice or any defect therein shall not affect the legality
or validity of the proceedings described in this Section 7.


 


(f)            Whenever the Conversion
Price is adjusted as herein provided, the Partnership shall prepare a notice of
such adjustment of the Conversion Price setting forth the adjusted Conversion
Price and the effective date such adjustment becomes effective and shall mail
such notice of such adjustment of the Conversion Price to the holder of each
Series B Preferred Unit at such holder’s last address as shown on the
records of the Partnership.


 


(g)           In any case in which
subsection (c) of this Section 7 provides that an adjustment
shall become effective on the date next following the record date for an event,
the Partnership may defer until the occurrence of such event issuing to the
holder of any Series B Preferred Unit converted after such record date and
before the occurrence of such event the additional Common Units issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Units issuable upon such conversion before giving effect to
such adjustment.


 


(h)           For purposes of this
Section 7, the number of Common Units at any time outstanding shall not
include any Common Units then owned or held by or for the account of the
Partnership.  The Partnership shall not
make any distribution on Common Units held in the treasury of the Partnership.


 


(i)            If any action or transaction
would require adjustment of the Conversion Price pursuant to more than one
subsection of this Section 7, only one adjustment shall be made, and such
adjustment shall be the amount of adjustment that has the highest absolute
value.


 


(j)            If the Partnership shall
take any action affecting the Common Units, other than action described in this
Section 7, that in the reasonable judgment of the General Partner would
materially and adversely affect the conversion rights of the holders of the
Series B Preferred Units, the Conversion Price for the Series B
Preferred Units may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the General Partner determines to be
equitable in the circumstances.


 


(k)           The Partnership covenants
that Common Units issued upon conversion of the Series B Preferred Units
shall be validly issued, fully paid and nonassessable and the holder thereof
shall be entitled to rights of a holder of Common Units specified in the
Partnership Agreement.  Prior to the
delivery of any securities that the Partnership shall be obligated to deliver
upon conversion of the Series B Preferred Units, the Partnership shall
endeavor to comply with all federal and state laws and regulations thereunder
requiring the registration of such securities with, or any approval of or
consent to the delivery thereof, by any governmental authority.


 


(l)            The Partnership will pay any
and all documentary stamp or similar issue or transfer taxes payable in respect
of the issue or delivery of Common Units or other securities or property on
conversion of the Series B Preferred Units pursuant hereto; provided,
however, that the Company shall not be required to pay any tax that may be
payable in respect of any 


 


A-11

















 


transfer involved in the issue or delivery of Common
Units or other securities or property in a name other than that of the holder
of the Series B Preferred Units to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue or delivery
has paid to the Partnership the amount of any such tax or established, to the
reasonable satisfaction of the Partnership, that such tax has been paid.


 


(m)          Notwithstanding anything to
the contrary contained herein, the adjustment provisions contained in this
Section 7 shall be applied so that there is no duplication of adjustments
made pursuant to any other document.


 


A-12














 


SCHEDULE B


 


1.             Definitions.  As used in this Schedule B, the following
terms shall have the meanings set forth below, unless the context otherwise
requires:


 


“Common
Unit Value” shall mean, with
respect to any trading day, the trading price of a share of Common Stock
(calculated based on the average of the intra-day high and low and subject to
adjustment in the event that the exchange ratio between Common Units and shares
of Common Stock is not one-to-one or other adjustments if the kind or amount of
securities into which Common Units can
be converted or exchanged (as provided in the Redemption Rights Agreement, dated the date hereof) changes
after the date hereof).


 


“Distribution
Payment Date” shall mean, with
respect to any Distribution Period, the payment date for the distribution
declared by the General Partner on its Common Units for such Distribution
Period or, if no such distribution payment date is established, the last
business day of the first full month following such Distribution Period.


 


“Distribution
Period” shall mean the quarterly
period that is then the distribution period with respect to the Common Units
or, if no such distribution period is established, the calendar quarter shall
be the Distribution Period; provided that (a) the initial Distribution
Period shall commence on December 11, 2003 and end on and include
December 31, 2003 and (b) the Distribution Period in which the final
liquidation payment is made pursuant to Section 7.2 of the Third Amended
and Restated Agreement of Limited Partnership shall commence on the first day
following the immediately preceding Distribution Period and end on the date of
such final liquidation payment.


 


“Fair
Market Value” shall mean the
average of the daily Closing Price during the ten consecutive Trading Days
ending on the business day immediately preceding the day in question with
respect to the issuance or distribution requiring such computation (subject to
appropriate adjustment in the event that the exchange ratio between Common
Units and shares of Common Stock is not one-to-one).


 


“Relevant
Distribution Periods” shall mean
(i) each of the three (3) consecutive Distribution Periods the last
of which ends during the 90-day period referred to in the last paragraph of
Section 7(b) and (ii) the next immediately following
Distribution Period after the third Distribution Period described in clause (i) above.


 


“Tenth
Anniversary Date” shall mean December 11,
2013.


 


2.             Designation and Number; Etc.  The Series D 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 Third Amended and Restated Agreement of Limited Partnership to
the extent applicable).  The authorized
number of Series D Preferred Units shall be 532,749.6574.  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 Third Amended and Restated Agreement
of Limited Partnership, the provisions of this Schedule B shall control.


 

















 


3.             Rank.  The Series D Preferred Units shall, with
respect to the payment of distributions and the distribution of amounts upon
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, rank as follows:


 


(a)           senior to all classes or
series of Common Units and to all Units the terms of which provide that such
Units shall rank junior to the Series D Preferred Units;


 


(b)           on a parity with the
Series B Preferred Units, Series E Preferred Units and each other
series of Preferred Units issued by the Partnership which does not provide by
its express terms that it ranks junior or senior in right of payments to the
Series D Preferred Units with respect to payment of distributions or
amounts upon liquidation, dissolution or winding-up; and


 


(c)           junior to any class or
series of Preferred Units issued by the Partnership that ranks senior to the
Series D Preferred Units and has been approved in accordance with
Section 4 of this Schedule B.


 


4.             Voting.


 


(a)           Holders of Series D
Preferred Units shall not have any voting rights, except as required by
applicable law or as described below in this Section 4.


 


(b)           So long as any Series D
Preferred Units remain outstanding, the Partnership shall not, without the
affirmative vote or consent of the holders of at least a majority of the
Series D Preferred Units outstanding at the time, given in person or by
proxy, either in voting or at a meeting (such series voting separately as a
class), (i) authorize, create, issue or increase the authorized or issued
amount of, any class or series of partnership interests in the Partnership
ranking senior to the Series B Preferred Units with respect to the payment
of distributions or the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership or reclassify any
Common Units into such partnership interests, or create, authorize or issue any
obligation or security convertible or exchangeable into or evidencing the right
to purchase any such partnership interests; or (ii) amend, alter or repeal
the provisions of the Partnership Agreement, whether by merger or consolidation
or otherwise (an “Event”), so as to negate the provisions of clause (i) or
(ii) of this paragraph or so as to materially and adversely affect any
special right, preference, privilege or voting power of the Series D
Preferred Units or the holders thereof that is contained in this Schedule
B.  Notwithstanding anything to the
contrary contained herein, each of the following shall be deemed not to
(i) materially and adversely affect any such special right, preference,
privilege or voting power or (ii) otherwise require the vote or consent of
the holders of the Series D Preferred Units: (X) the occurrence of
any merger, consolidation, entity conversion, unit exchange, recapitalization
of the Common Units or other business combination or reorganization, so long as
either (1) the Partnership is the surviving entity and the Series D
Preferred Units remain outstanding with the terms thereof materially unchanged
or (2) if the Partnership is not the surviving entity in such transaction,
interests in an entity having substantially the same rights and terms with
respect to rights to distributions, voting, redemption and conversion as the Series D
Preferred Units are exchanged or substituted for the Series D Preferred
Units without any income, gain or loss expected to be recognized by the holder
upon the exchange or substitution 


 


B-2

















 


for federal income tax purposes (and with the terms
of the Common Units or such other securities for which the Series D
Preferred Units (or the substitute or exchanged security therefor) are
convertible or redeemable materially the same with respect to rights to
distributions, voting and redemption), (Y) any increase in the amount of
the authorized Preferred Units or Common Units or the creation or issuance of
any other series or class of
Preferred Units or Common Units
or any increase in the amount of Common Units or any other series of Preferred
Units, in each case so long as such Units rank on a parity with or junior to
the Series D Preferred Units with respect to payment of distributions and
the distribution of assets upon voluntary or involuntary liquidation,
dissolution or winding-up of the Partnership and (Z) the dissolution,
liquidation and/or winding up of the Partnership.


 


The foregoing voting provisions shall not apply
if at or prior to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding Series D
Preferred Units shall have been converted or redeemed.


 


For purposes of the foregoing provisions of this
Section 4, each Series D Preferred Unit shall have one (1) vote.


 


Except
as otherwise required by applicable law
or as set forth herein, the Series D Preferred Units shall not have any
voting right or powers and the consent of the holders thereof shall not be
required for the taking of any action.


 


5.             Distributions.


 


(a)           With respect to each
Distribution Period and subject to the rights of the holders of Preferred Units ranking senior to or on parity
with the Series D Preferred Units, the holders of Series D Preferred
Units shall be entitled to receive, when, as and if declared by the General
Partner, out of assets of the Partnership legally available for the payment of
distributions, quarterly cumulative cash distributions in an amount per
Series D Preferred Unit equal to the greater of (i) $0.8125 (the “Base
Quarterly Distribution”) and (ii) the amount of the regular quarterly cash
distribution for such Distribution Period upon the number of Common Units (or
portion thereof) into which such Series D Preferred Unit is then
convertible in accordance with Section 7 of this Schedule B.  Notwithstanding anything to the contrary
contained herein, the amount of distributions described under each of clause (i) and
(ii) of this paragraph for the initial Distribution Period, or any other
Period shorter than a full Distribution Period, shall be prorated and computed
on the basis of twelve 30-day months and a 360-day year.  Such distributions shall with respect to each
Series D Preferred Unit, accrue from its issue date, whether or not in, or
with respect to, any Distribution Period or Periods (A) the distributions
described above are declared, (B) the Partnership is contractually
prohibited from paying such distributions or (C) there shall be assets of
the Partners legally available for the payment of such distributions.  The distributions upon the Series D
Preferred Units for each Distribution Period shall, if and to the extent
declared or authorized by the General Partner on behalf of the Partnership, be
paid in arrears (without interest or other amount) on the Distribution Payment
Date with respect thereto, and, if not paid on such date, shall accumulate,
whether or not in, or with
respect to, any Distribution Period or Periods (X) the distributions are
declared, (Y) the Partnership is contractually prohibited from paying such
distributions or (Z) there shall be assets of the Partnership legally
available for the payment of such distributions.  The record date for 


 


B-3

















 


distributions upon the Series D Preferred Units
for any Distribution Period shall be the same as the record date, for the
distributions upon the Common Units for such Distribution Period (or, if no
such record date is set for the Common Units, the fifteenth day of the calendar
month in which the applicable Distribution Payment Date falls if prior to such
Distribution Payment Date otherwise, the fifteenth day of the immediately
preceding calendar month).  Accumulated
and unpaid distributions for any past Distribution Periods may be declared and
paid at any time, without reference to any Distribution Payment Date, to
holders of record on such date, not exceeding 45 days preceding the payment
date thereof, as may be fixed by the General Partner.  Any distribution payment made upon the
Series D Preferred Units shall first be credited against the earliest
accrued but unpaid distributions due with respect to such Units which remains
payable.  No interest, or sum of money in
lieu of interest, shall be owing or payable in respect of any distribution
payment or payments on the Series D Preferred Units, whether or not in
arrears.


 


(b)           No distribution on the
Series D Preferred Units shall be declared by the General Partner or paid
or set apart for payment by the Partnership at such time as the terms and
provisions of any bona fide agreement of the Partnership, including any
agreement relating to bona fide indebtedness, prohibits such declaration,
payment or setting apart for payment or provides that such declaration, payment
or setting apart for payment would constitute a breach thereof, of a default
thereunder, or if such declaration or payment shall be restricted or prohibited
by law (and such failure to pay distributions on the Series D Preferred
Units shall prohibit other distributions by the Partnership as described in
Sections 5(c) or (d) of this Schedule B).  Notwithstanding the foregoing, distributions
on the Series D Preferred Units shall accumulate as provided herein
whether or not any of the foregoing restrictions exist.


 


(c)           Except as provided in
Section 5(d) of this Schedule B, so long as any Series D
Preferred Units are outstanding, (i) no distributions (other than in
Common Units or other Units ranking junior to the Series D Preferred Units
as to payment of distributions and amounts upon liquidation, dissolution or
winding-up of the Partnership) shaft be declared or paid or set apart for
payment upon the Common Units or any other class or series of partnership
interests in the Partnership or Units ranking, as to payment of distributions
or amounts distributable upon liquidation, dissolution or winding-up of the
Partnership, on a parity with or junior to the Series D Preferred Units,
for any period and (ii) no Common Units or other Units ranking junior to,
or on a parity with the Series D Preferred Units as to payment of
distributions or amounts upon liquidation, dissolution or winding-up of the
Partnership shall be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a sinking fund
for the redemption of any such Units) by the Partnership (except by conversion
into or exchange for other Units ranking junior to the Series D Preferred
Units as to payment of distributions and amounts upon liquidation, dissolution
or winding-up of the Partnership or by redemptions pursuant to Rights
Agreements) unless, in the case of either clause (i) or (ii), full
cumulative distributions have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for such
payment on the Series D Preferred Units for all Distribution Periods
ending on or prior to the distribution payment date for the Common Units or
such other class or series of Unit or the date of such redemption, purchase or
other acquisition.


 


(d)           When distributions are not
paid in full (or a sum sufficient for such full payment is not set apart for
such payment) upon the Series D Preferred Units and any other 


 


B-4

















 


partnership interests in the Partnership or Units
ranking on a parity as to payment of distributions with the Series D
Preferred Units, all distributions declared upon the Series D Preferred
Units and any other partnership interests in the Partnership or Units ranking
on a parity as to payment of distributions with the Series D Preferred
Units shall be declared pro rata so that the amount of distributions declared
per Unit of Series D Preferred Units and such other partnership interests
in the Partnership or Units shall in all cases bear to each other the same
ratio that accrued and unpaid distributions per Unit on the Series D
Preferred Units and such other partnership interests in the Partnership or
Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such Units do not have
cumulative distributions) bear to each other.


 


(e)           Holders of Series D
Preferred Units shall not be entitled to any distributions, whether payable in
cash, property or Units, in excess of
the cumulative distributions described in Section 5(a) above.


 


(f)            For any quarterly period,
any amounts paid with respect to the Series D Preferred Units in excess of
the amount that would have been paid with respect to such Units for such period
had they been converted into Common Units in accordance with the terms of
Section 7 of this Schedule B are intended to constitute guaranteed
payments within the meaning of Section 707(c) of the Code and shall
not be treated as distributions for purposes of allocating Net Income and Net
Loss or otherwise maintaining Capital Accounts.


 


6.             Liquidation Preference.


 


(a)           In the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, before any payment or distribution of the assets of the
Partnership (whether capital or surplus) shall be made to or set apart for the
holders of Common Units or any other partnership interests in the Partnership
or Units ranking junior to the Series D Preferred Units as to the
distribution of assets upon the liquidation, dissolution or winding-up of the
Partnership, the holders of the Series D Preferred Units shall, with
respect to each such Unit, be entitled to receive, out of the assets of the
Partnership available for distribution to Partners after payment or provision
for payment of all debts and other liabilities of the Partnership and subject
to the rights of the holders of any series of Preferred Units ranking senior to
or on parity with the Series D Preferred Units with respect to payment of
amounts upon liquidation, dissolution or winding-up of the Partnership, an
amount equal to $50, plus an amount equal to all distributions (whether or not
earned or declared) accrued and unpaid thereon to the date of final
distribution (including all accumulated and unpaid distributions).  If upon any such voluntary or involuntary
dissolution or winding-up of the Partnership, the assets of the Partnership, or
proceeds thereof distributable among the holders of the Series D Preferred
Units are insufficient to pay in full the preferential amount aforesaid on the
Series D Preferred Units and liquidating payment on any other Units or
partnership interests in the Partnership of any class or series ranking as to
payment of distributions and amounts upon the liquidation, dissolution or winding-up
of the Partnership, on a parity with the Series D Preferred Units, then
such assets, or the proceeds thereof, shall be distributed among the holders of
Series D Preferred Units and any such other Units or partnership interests
in the Partnership ratably in accordance with the respective amounts that would
be payable on such Series D Preferred Units and such other Units or
partnership interests in the Partnership if all amounts payable thereon were
paid in full.  For the purposes of this 


 


B-5

















 


Section 6, none of (i) a consolidation or
merger of the Partnership with or into another entity, (ii) a merger of
another entity with or into the Partnership or (iii) a sale, lease or
conveyance of all or substantially
all of the Partnership’s assets, properties or business shall be deemed to be a
liquidation, dissolution or winding-up of the Partnership.


 


(b)           Written notice of such
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by first class mail,
postage pre-paid, not less than 30 nor more than 60 days prior to the payment
date stated therein, to each record holder of the Series D Preferred Units
at the respective addresses of such holders as the same shall appear on the
transfer records of the Partnership.


 


(c)           After payment of the full
amount of liquidating distributions to which they are entitled as provided in
Section 6(a) of this Schedule B, the holders of Series D
Preferred Units shall have no right or claim to any of the remaining assets of
the Partnership.


 


7.             Conversion.  Holders of Series D Preferred Units
shall have the right to convert all or a portion of such Units into Common
Units, as follows:


 


(a)           A holder of Series D
Preferred Units shall have the right at such holder’s option, at any time, to
convert any whole number of Series D Preferred Units into fully paid and non-assessable Common Units; provided,
however, that the conversion right may not be exercised at any one time by a
holder of Series D Preferred Units with respect to less than 1,000
Series D Preferred Units (or all the Series D Preferred Units then
owned by such holder if such holder owns less than 1,000 Series D
Preferred Units).  Each Series D
Preferred Unit shall be convertible into the number of Common Units determined
by dividing (i) the $50 base liquidation preference per Series D
Preferred Unit plus, an amount equal to all accumulated and unpaid
distributions (whether or not earned or declared) with respect thereto by
(ii) a conversion price of $33.151875 per Common Unit (equivalent to an
initial conversion rate of 1.508210 Common Units for each Series D
Preferred Unit), subject to adjustment as described in Section 7(c) hereof
(the “Conversion Price”).


 


(b)           To exercise the
conversion right, the holder of each Series D Preferred Unit to be
converted shall execute and deliver to the General Partner, at the principal
office of the Partnership, a written notice (the “Conversion Notice”)
indicating that the holder thereof elects to convert such Series D
Preferred Unit and containing representations and warranties of such holder
that (i) such holder has good and marketable title to such Series D
Preferred Unit, free and clear of all liens, claims and encumbrances,
(ii) such holder is an accredited investor as defined in Regulation D
under the Securities Act of 1933, as amended, and has such knowledge and
experience in financial and business matters such that such holder is capable
of evaluating the merits and risks of receiving and owning the Common Units
that may be issued to it in exchange for such Series D Preferred Unit,
(iii) such holder is able to bear the economic risk of such ownership and
(iv) such Common Units to be acquired by such holder pursuant to this
Agreement would be acquired by such holder for its own account, for investment
purposes only and not with a view to, and with no present intention of, selling
or distributing the same in violation of federal or state securities laws.  Unless the Units issuable on conversion are
to be issued in the same name as the name in which such Series D Preferred
Unit is registered, each 


 


B-6

















 


Series D Preferred Unit surrendered for
conversion shall be accompanied by instruments of transfer, in form reasonably
satisfactory to the Partnership, duly executed by the holder or such holder’s duly authorized attorney and an
amount sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Partnership demonstrating that such taxes have been paid).


 


As promptly as practicable after delivery of the Conversion Notice as
aforesaid, the Partnership shall amend the Partnership Agreement to reflect the
conversion and the issuance of Common Units issuable upon the conversion of
such Series D Preferred Units in accordance with the provisions of this
Section 7.  In addition, the
Partnership shall deliver to the holder at its address as reflected on the
records of the Partnership, a copy of such amendment.


 


A holder of Series D Preferred Units at the
close of business on the record date for any Distribution Period shall be
entitled to receive the distribution payable on such Units on the corresponding Distribution Payment Date notwithstanding
the conversion of such Series D Preferred Units following such record date
and prior to such Distribution Payment Date and shall have no right to receive
any distribution for such Distribution Period in respect of the Common  Units into which such Series D Preferred
Units were converted.  Except as provided
herein, the Partnership shall make no payment or allowance for unpaid
distributions, whether or not in arrears, on converted Series D Preferred
Units or for distributions on the Common Units that are issued upon such
conversion in the event that a holder of Series D Preferred Units converts
its Series D Preferred Units into Common Units on or prior to the record
date for the initial Distribution Period, the distribution for such
Distribution Period in respect of such Common Units shall be prorated and
computed on the basis of twelve 30-day months and a 360-day year.


 


Each conversion shall be deemed to have been
effected immediately prior to the close of business on the date on which the
Conversion Notice is received by the Partnership as aforesaid, and the person
or persons in whose name or names any Common Units shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of
such Units at such time on such date and such conversion shall be at the
Conversion Price in effect at
such time and on such date unless the transfer books of the Partnership shall
be closed on that date, in which event such person or persons shall be deemed
to have become such holder or holders of record at the close of business on the
next succeeding day, on which such transfer books are open, but such conversion
shall be at the Conversion Price in effect on the date on which such Units have
been surrendered and such notice received by the Partnership.


 


Notwithstanding anything to the contrary contained
herein, all holders of Preferred Units shall be deemed to have delivered a
Conversion Notice (and therefore exercised
their conversion rights effective as of the time specified in the next sentence) as to all
Series D Preferred Units if
(a) with respect to any period of 90 consecutive calendar days following
the Tenth Anniversary Date, the Common Unit Value exceeds on each trading day during such 90-day period the
Conversion Price then in effect and (b) the amount of the distribution (as
calculated in accordance with
Section 5(a)(ii) of this Schedule B) for each of the four (4) Relevant
Distribution Periods upon the number of Common Units (or portion thereof) into
which a Series D Preferred Unit is then convertible in accordance with this
Section 7 exceeds the Base
Quarterly Distribution.  The
forced conversion referred to in this
paragraph shall be effective at the close of business on the Distribution
Payment Date for the last Relevant Distribution Period.


 


B-7

















 


(c)           The
Conversion Price shall be adjusted from time to time as follows:


 


(i)            If the Partnership shall,
after the date on which the Series D Preferred Unit are first issued (the “Issue
Date”), (A) pay or make a distribution to holders of its partnership
interests or Units in Common Units, (B) subdivide its outstanding Common
Units into a greater number of Units or distribute Common Units to the holders
thereof, (C) combine its outstanding
Common Units into a smaller number of Units, or (D) issue any partnership
interests or Units by reclassification of its Common Units, the Conversion
Price in effect at the opening of business on the day following the date fixed
for the determination of holders entitled to receive such distribution or at
the opening of business on the day next following the day on which such
subdivision, combination or reclassification becomes effective, as the case may
be, shall be adjusted so that the holder of any Series D Preferred Unit
thereafter surrendered for conversion shall be entitled to receive the number
of Common Units or other partnership interests or securities that such holder
would have owned or have been entitled to receive after the happening of any of
the events described above had such Series Preferred Unit been converted
immediately prior to the close of business on the record date in the case of a
distribution or the effective date in the case of a subdivision, combination or
reclassification.  An adjustment made
pursuant to this subsection (i) shall become effective immediately after
the opening of business on the day next following the record date (except as
provided in subsection (g) below) in the case of a distribution and
shall become effective immediately after the opening of business on the day
next following the effective date in the case of a subdivision, combination or
reclassification.


 


(ii)           If the Partnership shall
issue after the Issue Date rights, options or warrants to all holders of Common
Units entitling them to subscribe for or purchase Common Units (or securities
convertible into or exchangeable for Common Units) at a price per unit less
than the Fair Market Value per Common Unit on the record date for the
determination of holders of Common Units entitled to receive such rights, options or warrants, then the
Conversion Price in effect at the opening of business on the day next following
such record date shall be adjusted to equal the price determined by multiplying
(I) the Conversion Price in effect immediately prior to the close of
business on the date fixed for such determination by (II) a fraction, the
numerator of which shall be the sum of (A) the number of Common Units
outstanding at the close of business on the date fixed for such determination
and (B) the number of Common Units that the aggregate proceeds to the
Partnership from the exercise of such rights, options or warrants for Common
Units would purchase at such Fair Market Value, and the denominator of which
shall be the sum of (A) the number of Common Units outstanding at the
close of business on the date fixed for such determination and (B) the
number of additional Common Units offered for subscription or purchase pursuant
to such rights, options or warrants. 
Such adjustment shall become effective immediately after the opening of
business on the day next following such record date (except as provided in
subsection (g) below).  In
determining whether any rights, options or warrants entitle the holders of
Common Units to subscribe for or purchase Common Units at less than the Fair
Market Value, there shall be taken into account any consideration received by
the Partnership upon issuance and
upon exercise of such rights, options or warrants, the value of such
consideration, if other than cash, to be determined in good faith by the Board
of the General Partner.


 


B-8

















 


(iii)          If the Partnership shall
distribute after the Issue Date to all holders of Common Units any other
securities or evidences of its indebtedness or assets (excluding those rights,
options, warrants, securities and other assets referred to in and treated under subsection (i) or (ii) above,
and excluding distributions paid exclusively in cash) (any of the foregoing
being hereinafter in this subsection (iii) called the “Securities”), then
in each case the Conversion Price shall be adjusted so that it shall equal the
price determined by multiplying (I) the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of holders of Common Units entitled to receive such distribution
by (II) a fraction, the numerator of which shall be the Fair Market Value
per Common Unit on the record date mentioned below less the then fair market
value (as determined in good faith by the Board of the General Partner) of the
portion of the Securities so distributed applicable to one Common Unit, and the
denominator of which shall be the Fair Market Value per Common Unit on the
record date mentioned below.  Such
adjustment shall become effective immediately at the opening of business on the
business day next following (except as provided in subsection (g) below)
the record date for the determination of holders of Common Units entitled to
receive such distribution.  For the
purposes of this subsection (iii), a distribution in the form of a Security,
which is distributed not only to the holders of the Common Units on the date
fixed for the determination of holders of Common Units entitled to such
distribution of such Security, but also is distributed with each Common Unit
delivered to a person converting a Series D Preferred Unit after such
determination date (together with distributions thereon paid to the holders of
Common Units prior thereto), shall not require an adjustment of the Conversion
Price pursuant to this subsection (iii); provided that on the date, if any, on
which a person converting a Series D Preferred Unit would no longer be
entitled to receive such Security with a Common Unit, a distribution of such
Securities shall be deemed to have occurred, and the Conversion Price shall be
adjusted as provided in this subsection (iii) (and such day shall be
deemed to be “the date fixed for the determination of the holders of Common
Units entitled to receive such distribution” and “the record date” within the
meaning of the two preceding sentences).


 


(iv)          Notwithstanding the
foregoing, no adjustment shall be made pursuant to the preceding clauses (i) and
(iii) that would result in an increase in the Conversion Price.  No adjustment in the Conversion Price shall
be required unless such adjustment would require a cumulative increase or
decrease of at least 1% in such price; provided, however, that any adjustments
that by reason of this subsection (iv) are not required to be made shall
be carried forward and taken into account in any subsequent adjustment until
made; and provided, further, that any adjustment shall be required and made in
accordance with the provisions of this Section 7 (other than this
subsection (iv)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of Common
Units.  Notwithstanding any other
provisions of this Section 7, the Partnership shall not be required to
make any adjustment to the Conversion Price for the issuance of (i) any
Common Units pursuant to any plan providing for the reinvestment of
distributions or interest payable on securities of the Partnership and the
investment of additional optional amounts in Common Units under such plan or
(ii) any options, rights or Common Units pursuant to or on account of any
unit or stock option, unit or stock purchase or any unit or stock-based
compensation plan 


 


B-9

















 


maintained by the
Partnership or the General Partner.  All
calculations under this Section 7 shall be made to the nearest cent (with
$.005 being rounded upward) or to the nearest one-tenth of a Unit (with .05 of
a Unit being rounded upward), as the case may be.


 


(d)           If the Partnership shall be
a party to any transaction (including, without limitation, a merger,
consolidation, entity conversion, unit exchange, self tender offer for all or
substantially all of the Common Units, sale of all or substantially all of the
Partnership’s assets or recapitalization of the Common Units or other business
combination or reorganization and excluding any transaction as to which
subsection (c)(i) of this Section 7 applies) (each of the foregoing
being referred to herein as a “Transaction”), in each case as a result of which
Common Units shall be exchanged for or converted into partnership interests,
shares, stock, securities or other property (including cash or any combination thereof),
each Series D Preferred Unit which is not converted into the right to
receive partnership interests, shares, stock, securities or other property in
connection with such Transaction (and thus remains outstanding) shall
thereafter be convertible into the kind and amount of partnership interests,
shares, stock, securities and other property (including cash or any combination
thereof) receivable upon the consummation of such Transaction by a holder of
that number of Common Units into which one Series D Preferred Unit
(including all distributions (whether or not earned or declared) accumulated
and unpaid thereon) was convertible immediately prior to such Transaction,
assuming such holder of Common Units is not a Person with which the Partnership
consolidated or into which the Partnership merged or which merged into the
Partnership or to which such sale or transfer was made, as the case may be (a “Constituent
Person”), or an affiliate of a Constituent Person.  In the event that holders of Common Units have
the opportunity to elect the form or type of consideration to be received upon
consummation of the Transaction, prior to such transaction the General Partner
shall give prompt written notice to each Series D Preferred Unit holder of
such election, and each Series D Preferred Unit holder shall also have the
right to elect by written notice to the General Partner, the form or type of
consideration to be received upon conversion of each Series D Preferred
Unit held by such holder following consummation of such Transaction.  If a holder of Series D Preferred Units
fails to make such an election, such holder (and any of its transferees) shall
receive upon conversion of each Series D Preferred Unit held by such holder
(or by any of its transferees) the same consideration that a holder of that
number of Common Units into which one Series D Preferred Unit was
convertible immediately prior to such Transaction would receive if such Common
Unit holder failed to make such an election. 
The Partnership shall not be a party to any Transaction unless the terms
of such Transaction are consistent with the provisions of this subsection (d),
and it shall not consent or agree to the occurrence of any Transaction until
the Partnership has entered into an agreement with the successor or purchasing
entity, as the case may be, for the benefit of the holders of the Series D
Preferred Units that will contain provisions enabling the holders of
Series D Preferred Units that remain outstanding after such Transaction to
convert into the consideration received by holders of Common Units at the
Conversion Price in effect immediately prior to such Transaction (with the
holder having the option to elect the type of consideration if a choice is
offered in the Transaction as specified above). 
The provisions of this subsection (d) shall similarly apply to
successive Transactions.


 


B-10














 


(e)                                  If:


 


(i)            the Partnership shall
authorize the granting to the holders of the Common Units of rights, options or
warrants to subscribe for or purchase any Units of any class or any other
rights, options or warrants; or


 


(ii)           there shall be any reclassification
of the Common Units (other than as described in clause (c)(i) of this
Section 7) or any consolidation or merger to which the Partnership is a
party and for which approval of any partners of the Partnership is required,
involving the conversion or exchange of Common Units into securities or other
property, or a unit exchange involving the conversion or exchange of Common
Units into securities or other property, a self tender offer by the Partnership
for all or substantially all of the Common Units, or the sale or transfer of
all or substantially all of the assets of the Partnership as an entirety, or


 


(iii)          there shall occur the
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership;


 


then
the Partnership shall cause to be mailed to the holders of the Series D
Preferred Units at their addresses as shown on the records of the Partnership,
as promptly as possible a notice stating (A) the date on which a record is
to be taken for the purpose of such distribution of rights, options or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Units of record to be entitled to such distribution of rights,
options or warrants are to be determined or (B) the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding-up is expected to become effective, and the date as of
which it is expected that holders of Common Units of record shall be entitled
to exchange their Common Units for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding-up. 
Failure to give or receive such notice or any defect therein shall not
affect the legality or validity of the proceedings described in this
Section 7.


 


(f)            Whenever the Conversion
Price is adjusted as herein provided, the Partnership shall prepare a notice of
such adjustment of the Conversion Price setting forth the adjusted Conversion
Price and the effective date such adjustment becomes effective and shall mail
such notice of such adjustment of the Conversion Price to the holder of each
Series D Preferred Unit at such holder’s last address as shown on the
records of the Partnership.


 


(g)           In any case in which
subsection (c) of this Section 7 provides that an adjustment shall
become effective on the date next following the record date for an event, the
Partnership may defer until the occurrence of such event issuing to the holder
of any Series D Preferred Unit converted after such record date and before
the occurrence of such event the additional Common Units issuable upon such
conversion by reason of the adjustment required by such event over and above
the Common Units issuable upon such conversion before giving effect to such
adjustment.


 


(h)           For purposes of this
Section 7, the number of Common Units at any time outstanding shall not
include any Common Units then owned or held by or for the account of the 


 


B-11

















 


Partnership. 
The Partnership shall not make any distribution on Common Units held in
the treasury of the Partnership.


 


(i)            If any action or transaction
would require adjustment of the Conversion Price pursuant to more than one
subsection of this Section 3, only
one adjustment shall be made, and such adjustment shall be the amount of
adjustment that has the highest absolute value.


 


(j)            If the Partnership shall
take any action affecting the
Common Units, other than action described in this Section 7, that in the
reasonable judgment of the Partnership would materially affect the conversion
rights of the holders of the Series D Preferred Units, the Conversion
Price for the Series D Preferred Units may be adjusted, to the extent
permitted by law, in such manner, if any, and at such time, as the General
Partner, determines to be equitable in the circumstances.


 


(k)           The Partnership covenants
that Common Units issued upon conversion of the Series D Preferred Units
shall be validly issued, fully paid and non-assessable and the holder thereof
shall be entitled to rights of a holder of Common Units specified in the
Partnership Agreement.  Prior to the
delivery of any securities that the Partnership shall be obligated to deliver
upon conversion of the Series D Preferred Units, the Partnership shall
endeavor to comply with federal and state laws and regulations in respect thereof.


 


(l)            The Partnership will pay any
and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
Common Units or other securities or property on conversion of the Series D
Preferred Units, pursuant hereto; provided, however, that the Company, shall
not be required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Units or other securities or
property in a name other than that of the holder of the Series D Preferred
Units to be converted, and no such issue or delivery shall be made unless and
until the person requesting such issue or delivery has paid to the Partnership
the amount of any such tax or established, to the reasonable satisfaction of
the Partnership, that such tax
has been paid.


 


(m)          Notwithstanding anything to
the contrary contained herein, (i) the adjustment provisions contained in
this Section 7 shall be applied so that there is no duplication of
adjustments made pursuant to any other document and (ii) no adjustment
under any provision  hereof shall be made
on account of (A) the stock split approved by the stockholders of the
General Partner on November 20, 2003 or (B) the split of the Common
Units that occurred on November 20, 2003.


 


B-12

















 


SCHEDULE C


 


1.             Definitions.  As used in this Schedule C, the following
terms shall have the meanings set forth below, unless the context otherwise
requires:


 


“Common
Unit Value” shall mean, with respect to any trading day, the value of a
Common Unit, which shall equal the trading price of a share of Common Stock
(calculated based on the average of the intra-day high and low and subject to
adjustment in the event that the exchange ratio between Common Units and shares
of Common Stock is not one-to-one or other adjustments if the kind or amount of
securities into which Common Units can be converted or exchanged (as provided
in the Redemption Rights Agreement, dated the date hereof) changes after the
date hereof).


 


“Distribution
Payment Date” shall mean, with respect to any Distribution Period, the
payment date for the distribution declared by the General Partner on its Common
Units for such Distribution Period or, if no such distribution payment date is
established, the last business day of the first full month following such
Distribution Period.


 


“Distribution
Period” shall mean the quarterly period that is then the distribution
period with respect to the Common Units or, if no such distribution period is
established, the calendar quarter shall be the Distribution Period; provided
that (a) the initial Distribution Period shall commence on March 5,
2004 and end on and include March 31, 2004 and (b) the Distribution
Period in which the final liquidation payment is made pursuant to
Section 7.2 of the Third Amended and Restated Agreement of Limited
Partnership, as amended, shall commence on the first day following the immediately
preceding Distribution Period and end on the date of such final liquidation
payment.


 


“Fair
Market Value” shall mean, as of any day, the average of the Common Unit
Value for the ten consecutive Trading Days ending on the business day
immediately preceding the day in question with respect to the issuance or
distribution requiring such computation.


 


“Relevant
Distribution Periods” shall mean (i) each of the three (3) consecutive
Distribution Periods the last of which ends during the 90-day period referred
to in the last paragraph of Section 7(b) and (ii) the next
immediately following Distribution Period after the third Distribution Period
described in clause (i) above.


 


“Tenth
Anniversary Date” shall mean March 5, 2014.


 


2.             Designation and Number; Etc.  The Series E 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 Third Amended and Restated
Agreement of Limited Partnership to the extent applicable).  The authorized number of Series E
Preferred Units shall be 502,657.8128. 
Notwithstanding anything to the contrary contained herein, in the event
of a conflict between the provisions of this Schedule C and any other provision
of the Third Amended and Restated Agreement of Limited Partnership, the
provisions of this Schedule C shall control.


 

















 


3.             Rank.  The Series E Preferred Units shall, with
respect to the payment of distributions and the distribution of amounts upon
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, rank as follows:


 


(a)           senior to all classes or
series of Common Units and to all Units the terms of which provide that such Units shall rank junior to the Series E
Preferred Units;


 


(b)           on a parity with the Series B
Preferred Units, Series D Preferred Units and each other series of
Preferred Units issued by the Partnership which does not provide by its express
terms that it ranks junior or senior in right of payment to the Series E
Preferred Units with respect to payment of distributions or amounts upon
liquidation, dissolution or winding-up; and


 


(c)           junior to any class or
series of Preferred Units issued by the Partnership that ranks senior to the Series E Preferred Units and has
been approved in accordance with Section 4 of this Schedule C.


 


4.             Voting.


 


(a)           Holders of Series E
Preferred Units shall not have any voting rights, except as described below in
this Section 4.


 


(b)           So long as any Series E
Preferred Units remain outstanding, the Partnership shall not, without the
affirmative vote or consent of the holders of at least a majority of the Series E
Preferred Units outstanding at
the time, given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class), (i) authorize, create, issue or
increase the authorized or issued amount of any class or series of partnership
interests in the Partnership ranking senior to the Series E Preferred
Units with respect to the payment of distributions or the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership or reclassify any
Common Units or other Preferred Units into such partnership interests, or
create, authorize or issue any obligation or security convertible or
exchangeable into or evidencing the right to purchase any such partnership
interests; or (ii) amend, alter or repeal the provisions of the Third
Amended and Restated Agreement of Limited Partnership, as amended, whether by
merger or consolidation or otherwise (an “Event”), so as to (A) negate the
provisions of clause (i) or (ii) of this paragraph, (B) materially
and adversely affect the right of the holders of Series E Preferred Units
to transfer such Units unless the amendment also applies to the holders of all
other Units, (C) give the holders of any partnership interest a right to
the payment of distributions from the Partnership or a right to the
distribution of amounts upon voluntary or involuntary liquidation, dissolution
or winding-up of the Partnership that ranks senior to the Series E
Preferred Units or (D) materially
and adversely affect any right, preference, privilege or voting power of
the Series E Preferred Units or the holders thereof contained in this
Schedule C.  Notwithstanding anything to
the contrary contained herein, each of the following shall be deemed not to
(i) materially and adversely affect any
such right, preference, privilege or voting power or (ii) otherwise
require the vote or consent of the holders of the Series E Preferred
Units:  (X) the occurrence of any merger, consolidation, entity conversion,
unit exchange, recapitalization of the Common Units or other business
combination or reorganization, so long as either (1) the Partnership is
the surviving entity and the Series E Preferred Units remain outstanding
with the terms thereof materially unchanged (including 


 


C-2

















 


without limitation the terms with respect to
distributions, voting, redemption and conversion), or (2) if the
Partnership is not the surviving entity in such transaction, interests in an
entity having substantially the same rights and terms (including without
limitation rights to distributions, voting, redemption and conversion) as the Series E
Preferred Units are exchanged or substituted for the Series E Preferred
Units (and with the terms of the Common Units or such other securities for
which the Series E Preferred Units (or the substitute or exchanged
security therefor) are convertible or redeemable materially the same with
respect to rights to distributions, voting and redemption), (Y) any
increase in the amount of the authorized Preferred Units or Common Units or the
creation or issuance of any other series or class of Preferred Units or Common
Units or any increase in the amount of Common Units or any other series of
Preferred Units, in each case so long as such Units rank on a parity with or
junior to the Series E Preferred Units with respect to the payment of
distributions and the distribution of assets
upon voluntary or involuntary liquidation, dissolution or winding-up of
the Partnership and (Z) a sale or other disposition of all or
substantially all of the Partnership’s assets (by merger or otherwise) if, in
connection with such transaction, the holders of Series E Preferred Units
have the opportunity to surrender all of the issued and outstanding Series E
Preferred Units in exchange for a cash payment equal to the amount that such
holders would be entitled to receive in respect thereof upon a liquidation,
dissolution or winding-up of the Partnership (such surrender and payment to be
made contemporaneously with the closing of such transaction) and any resulting
dissolution, liquidation and/or winding-up of the Partnership.


 


The
foregoing voting provisions shall not apply if, at or prior to the time when
the act with respect to which such vote would otherwise be required shall be
effected, all outstanding Series E Preferred Units shall have been
converted or redeemed.


 


For
purposes of the foregoing provisions of this Section 4, each Series E
Preferred Unit shall have one (l) vote.


 


Except
as otherwise required by applicable law or as set forth herein, the Series E
Preferred Units shall not have any voting rights or powers and the consent of
the holders thereof shall not be required for the taking of any action.


 


5.             Distributions.


 


(a)           With respect to each
Distribution Period and subject to the rights of the holders of Preferred Units
ranking senior to or on parity with the Series E Preferred Units, the
holders of Series E Preferred Units shall be entitled to receive, when, as
and if declared by the General Partner, out of assets of the Partnership
legally available for the payment of the distributions, quarterly cumulative
cash distributions in an amount per Series E Preferred Unit equal to the
greater of (i) $0.875 (the “Base Quarterly Distribution”) and (ii) the
amount of the regular quarterly cash distribution paid for such Distribution
Period upon the number of Common Units (or portion thereof) into which such Series E
Preferred Unit is then convertible in accordance with Section 7 of this
Schedule C.  Notwithstanding anything to
the contrary contained herein, the amount of distributions described under each
of clause (i) and (ii) of this paragraph for the initial Distribution
Period, or any other period shorter than a full Distribution Period, shall be
prorated and computed based on the actual number of days in such Distribution
Period relative to the actual number of days in the calendar quarter of which
the Distribution Period is a part.  Such 


 


C-3

















 


distributions shall, with respect to each Series E
Preferred Unit, accrue from its issue date, whether or not in, or with respect
to, any Distribution Period or Periods (A) the distributions described
above are declared, (B) the Partnership is contractually prohibited from
paying such distributions or (C) there shall be assets of the Partnership
legally available for the payment of such distributions.  The distributions upon the Series E
Preferred Units for each Distribution Period shall, if and to the extent
declared or authorized by the General Partner on behalf of the Partnership, be
paid in arrears (without interest or other amount) on the Distribution Payment
Date with respect thereto, and, if not paid on such date, shall accumulate,
whether or not in, or with respect to, any Distribution Period or Periods (X) the
distributions are declared, (Y) the Partnership is contractually
prohibited from paying such distributions or (Z) there shall be assets of
the Partnership legally available for the payment of such distributions (and
shall not constitute accumulated distributions prior to such date).  The record date for distributions upon the
Series E Preferred Units for any Distribution Period shall be the same as
the record date for the distributions upon the Common Units for such
Distribution Period (or, if no such record date is set for the Common Units,
the fifteenth day of the calendar month in which the applicable Distribution
Payment Date falls if prior to such Distribution Payment Date; otherwise, the
fifteenth day of the immediately preceding calendar month).  Accumulated and unpaid distributions for any
past Distribution Periods may be declared and paid at any time, without
reference to any Distribution Payment Date, to holders of record on such date,
not exceeding 45 days preceding the payment date thereof, as may be fixed by
the General Partner.  Any distribution payment
made upon the Series E Preferred Units shall first be credited against the
earliest accrued but unpaid distributions due with respect to such Units which
remains payable.  No interest, or sum of
money in lieu of interest, shall be owing or payable in respect of any
distribution payment or payments on the Series E Preferred Units, whether
or not in arrears.


 


(b)           No distribution on the Series E
Preferred Units shall be
declared by the General Partner or paid or set apart for payment by the
Partnership at such time as and to
the extent that the terms and provisions of any bona fide agreement of the
Partnership, including any agreement relating to bona fide indebtedness,
prohibits such declaration, payment or setting apart for payment or provides
that such declaration, payment or setting apart for payment would constitute a
breach thereof, or a default thereunder, or to the extent that such declaration
of payment shall be restricted or prohibited by law (and such failure to pay
distributions on the Series E Preferred Units shall prohibit other
distributions by the Partnership as described in Sections 5(c) or (d) of
this Schedule C).  Notwithstanding the
foregoing, distributions on the Series E Preferred Units shall accumulate
as provided herein whether or not any of the foregoing restrictions exist.


 


(c)           Except as provided in
Section 5(d) of this Schedule C, so long as any Series E
Preferred Units are outstanding, (i) no cash or non-cash distributions
(other than in Common Units or other Units ranking junior to the Series E
Preferred Units as to payment of distributions and amounts upon liquidation,
dissolution or winding-up of the Partnership) shall be declared or paid or set
apart for payment upon the Common Units or any other class or series of
partnership interests in the Partnership or Units ranking, as to payment of
distributions or amounts distributable upon liquidation, dissolution or
winding-up of the Partnership, on a parity with or junior to the Series E
Preferred Units, for any period and (ii) no Common Units or other Units
ranking junior to or on a parity with the Series E Preferred Units as to payment of distributions
or amounts upon liquidation, dissolution or winding-up of the Partnership shall
be redeemed, purchased or otherwise acquired for any consideration (or any
monies be paid to or made 


 


C-4

















 


available for a sinking fund for the redemption of
any such Units) by the Partnership (except by conversion into or exchange for
other Units ranking junior to the Series E Preferred Units as to payment
of distributions and amounts upon liquidation, dissolution or winding-up of the
Partnership or by redemptions pursuant to Rights Agreements) unless, in the
case of either clause (i) or (ii), full cumulative distributions have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment in the next 30
days on the Series E Preferred Units for all Distribution Periods ending
on or prior to the distribution payment date for the Common Units or such other
class or series of Unit or the
date of such redemption, purchase or other acquisition.


 


(d)           When distributions are not
paid in full (or a sum sufficient for such full payment is not set apart for
such payment in the next 30 days) upon the Series E Preferred Units and
any other partnership interests in the Partnership or Units ranking on a parity
as to payment of distributions with the Series E Preferred Units, all
distributions declared upon the Series E Preferred Units and any other
partnership interests in the Partnership or Units ranking on a parity as to
payment of distributions with the Series E Preferred Units shall be
declared or paid pro rata so
that the amount of distributions declared per Unit of Series E Preferred
Units and such other partnership interests in the Partnership or Units shall in
all cases bear to each other the same ratio that accrued and unpaid
distributions per Unit on the Series E Preferred Units and such other
partnership interests in the Partnership or Units (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such Units do not have cumulative distributions) bear to each other.


 


(e)           Except as set forth in Section 6
of this Schedule C, holders of Series E Preferred Units shall not be
entitled to any distributions, whether payable in cash, property or Units, in
excess of the cumulative distributions described in Section 5(a) of
this Schedule C.


 


(f)            Distributions with respect
to the Series E Preferred Units are intended to qualify as permitted
distributions of cash that are not treated as a disguised sale within the meaning of Treasury Regulation
§1.707-4 and the provisions of this Schedule C shall be construed and applied
consistently with such Treasury Regulations.


 


6.             Liquidation Preference.


 


(a)           In the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, before any payment or distribution of the assets of the Partnership
(whether capital or surplus) shall be made to or set apart for the holders of
Common Units or any other partnership interests in the Partnership or Units
ranking junior to the Series E Preferred Units as to the distribution of
assets upon the liquidation, dissolution or winding-up of the Partnership, the
holders of the Series E Preferred Units shall, with respect to each such
Unit, be entitled to receive, out of the assets of the Partnership available
for distribution to Partners after payment or provision for payment of all
debts and other liabilities of the Partnership and subject to the rights of the
holders of any series of Preferred Units ranking senior to or on parity with the Series E Preferred Units
with respect to payment of amounts upon liquidation, dissolution or winding-up
of the Partnership, an amount equal to the greater of (i) $50, plus an
amount equal to all distributions (whether or not earned or declared) accrued
and unpaid thereon to the date of final distribution (including all accumulated
and unpaid distributions) and (ii) the amount that a holder 


 


C-5

















 


of such Series E
Preferred Unit would have received upon final distribution in respect of the
number of Common Units into which such Series E Preferred Unit (including
all accumulated and unpaid distributions (whether or not earned or declared)
with respect thereto) was convertible immediately prior to such date of final
distribution.  If, upon any such voluntary
or involuntary liquidation, dissolution or winding-up of the Partnership, the
assets of the Partnership, or proceeds thereof, distributable among the holders
of the Series E Preferred Units are insufficient to pay in full the
preferential amount aforesaid on the Series E Preferred Units and
liquidating payments on any other Units or partnership interests in the
Partnership of any class or series ranking, as to payment of distributions and
amounts upon the liquidation, dissolution or winding-up of the Partnership, on
a parity with the Series E Preferred Units, then such assets, or the
proceeds thereof, shall be distributed among the holders of Series E
Preferred Units and any such other Units or partnership interests in the
Partnership ratably in accordance with the respective amounts that would be
payable on such Series E Preferred Units and such other Units or
partnership interests in the Partnership if all amounts payable thereon were
paid in full.  For the purposes of this
Section 6, none of (i) a consolidation or merger of the Partnership
with or into another entity, (ii) a merger of another entity with or into
the Partnership or (iii) a sale, lease or conveyance of all or
substantially all of the Partnership’s assets, properties or business shall be deemed to be a
liquidation, dissolution or winding-up of the Partnership (unless all or
substantially all of the proceeds thereof are distributed by the Partnership,
in which case a liquidation, dissolution
or winding-up of the Partnership shall be deemed to have occurred).


 


(b)           Written notice of such
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the place or places where, the amounts distributable in
such circumstances shall be payable, shall be given by first class mail, postage
pre-paid, not less than 30 nor more than 60 days prior to the payment date
stated therein, to each record holder of the Series E Preferred Units at
the respective addresses of such holders as the same shall appear on the
transfer records of the Partnership.


 


(c)           After payment of the full
amount of liquidating distributions to which they are entitled as provided in
Section 6(a) of this Schedule C, the holders of Series E
Preferred Units shall have no right or claim to any of the remaining assets of
the Partnership.


 


7.             Conversion.  Holders of Series E Preferred Units
shall have the right to convert all or
a portion of such Units into Common Units, as follows:


 


(a)           A holder of Series E
Preferred Units shall have the right, at such holder’s option, at any time, to
convert any whole number of Series E Preferred Units into fully paid and
non-assessable Common Units; provided, however, that the conversion right may
not be exercised at any one time by a holder of Series E Preferred Units
with respect to less than 1,000 Series E Preferred Units (or all the Series E
Preferred Units then owned by such holder if such holder owns less than 1,000 Series E
Preferred Units).  Each Series E
Preferred Unit shall be convertible into the number of Common Units determined
by dividing (i) the $50 base liquidation preference per Series E
Preferred Unit, plus an amount equal to all accumulated and unpaid
distributions (whether or not earned or declared) with respect thereto by (ii) a
conversion price of $38.51 per Common Unit (equivalent to an initial conversion
rate of 1.298364 Common Units for each Series E Preferred Unit), subject
to adjustment as described in Section 7(c) hereof (the “Conversion
Price”).


 


C-6

















 


(b)           To exercise the conversion
right, the holder of each Series E Preferred Unit to be converted shall
execute and deliver to the General Partner, at the principal office of the
Partnership, a written notice (the “Conversion Notice”) indicating that the
holder thereof elects to convert such Series E Preferred Unit and
containing representations and warranties of such holder that (i) such
holder has good and marketable title to such Series E Preferred Unit, free
and clear of all liens, claims and encumbrances, (ii) such holder is an
accredited investor as defined in Regulation D under the Securities Act of
1933, as amended, and has such
knowledge and experience in financial and business matters such that such
holder is capable of evaluating the merits and risks of receiving and owning
the Common Units that may be issued to it in exchange for such Series E
Preferred Unit, (iii) such holder is able to bear the economic risk of
such ownership and (iv) such Common Units to be acquired by such holder
pursuant to this Agreement would be acquired by such holder for its own
account, for investment purposes only and not with a view to, and with no
present intention of, selling or distributing the same in violation of federal
or state securities laws.  Unless the
Units issuable on conversion are to be issued in the same name as the name in
which such Series E Preferred Unit is registered, each Series E
Preferred Unit surrendered for conversion shall be accompanied by instruments
of transfer, in form reasonably satisfactory to the Partnership, duly executed
by the holder or such holder’s duly authorized attorney and an amount
sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Partnership demonstrating that such taxes have been paid).


 


As
promptly as practicable after delivery of the Conversion Notice as aforesaid,
the Partnership shall amend the Partnership Agreement to reflect the conversion
and the issuance of Common Units issuable upon the conversion of such Series E
Preferred Units in accordance with the provisions of this Section 7.  In addition, the Partnership shall deliver to
the holder at its address as reflected on the records of the Partnership, a
copy of such amendment.


 


A
holder of Series E Preferred Units at the close of business on the record
date for any Distribution Period shall be entitled to receive the distribution
payable on such Units on the corresponding Distribution Payment Date
notwithstanding the conversion of such Series E Preferred Units following
such record date and prior to such Distribution Payment Date and shall have no
right to receive any distribution for such Distribution Period in respect of
the Common Units into which such Series E Preferred Units were
converted.  Except as provided herein,
the Partnership shall make no payment or allowance for unpaid distributions,
whether of not in arrears, on converted Series E Preferred Units or for
distributions on the Common Units that are issued upon such conversion.  In the event that a holder of Series E
Preferred Units converts its Series E Preferred Units into Common Units on
or prior to the record date for the initial Distribution Period, the
distribution for such Distribution Period in respect of such Common Units shall
be prorated and computed on the basis of twelve 30-day months and a 360-day
year.


 


Each
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which the Conversion Notice is received by the
Partnership as aforesaid, and the person or persons, in whose name or names any
Common Units shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of such Units at such time on such date,
and such conversion shall be at the Conversion Price in effect at such time and
on such date unless the transfer books of the Partnership shall be closed on
that date, in which event such person or persons shall be deemed to have become
such holder or holders of 


 


C-7

















 


record
immediately prior to the close of business on the next succeeding day on which
such transfer books are open, but such conversion shall be at the Conversion
Price in effect on the date on which such Units have been surrendered and such
notice received by the Partnership.


 


Notwithstanding
anything to the contrary contained herein, all holders of Series E
Preferred Units shall be deemed to have delivered a Conversion Notice (and
therefore exercised their conversion rights effective as of the time specified
in the next sentence) as to all Series E Preferred Units if (a) with
respect to any period of 90 consecutive calendar days following the Tenth
Anniversary Date, the Common Unit Value exceeds on each trading day during such
90-day period the Conversion Price then in effect and (b) the amount of
the distribution (as calculated in accordance with Section 5(a)(ii) of
this Schedule C) for each of the four (4) Relevant Distribution Periods
upon the number of Common Units (or portion thereof) into which a Series E
Preferred Unit is then convertible in accordance with this Section 7
exceeds the Base Quarterly Distribution. 
The forced conversion referred to in this paragraph shall be effective
at the close of business on the Distribution Payment Date for the last Relevant
Distribution Period.


 


(c)           The Conversion Price shall
be adjusted from time to time as-follows:


 


1.             If the
Partnership shall, after the date on which the Series E Preferred Units
are first issued (the “Issue Date”), (A) pay or make a distribution to
holders of its partnership interests Units in Common Units, (B) subdivide
its outstanding Common Units into a greater number of Units or distribute
Common Units to the holders thereof, (C) combine
its outstanding Common Units into a smaller number of Units, or (D) issue
any partnership interests or Units by reclassification of its Common Units, the
Conversion Price shall be adjusted so that the conversion rights of the holder
of any Series E Preferred Unit are not diluted or expanded thereby.


 


2.             If the
Partnership shall issue after the Issue Date rights, options or warrants to all
holders of Common Units entitling them to subscribe for or purchase Common
Units (or securities convertible into or exchangeable for Common Units) at a
price per Unit less than the Fair Market Value on the record date for the
determination of holders of Common
Units entitled to receive such rights, options or warrants, then the Conversion
Price shall be adjusted to equal the price determined by multiplying (I) the
Conversion Price in effect immediately prior to adjustment by (II) a
fraction, the numerator of which shall be the sum of (A) the number of
Common Units outstanding at the close of business on the date fixed for such
determination and (B) the number of Common Units that the aggregate
proceeds to the Partnership from the exercise of such rights, options or
warrants for Common Units would purchase at a price per Unit equal to the Fair
Market Value, and the denominator of which shall be the sum of (A) the
number of Common Units outstanding at the close of business on the date fixed
for such determination and (B) the number of additional Common Units
offered for subscription or purchase pursuant to such rights, options or
warrants.  In determining whether any
rights, options or warrants entitle the holder of Common Units to subscribe for
or purchase Common Units at a price per Unit less than the Fair Market Value,
there shall be taken into account any consideration received by the Partnership
upon issuance and upon exercise of such rights, options or warrants, the value
of such consideration, if other than cash, to be determined in good faith by
the Board of the General Partner.


 


C-8

















 


3.             If the Partnership shall
distribute after the Issue Date to all holders of Common Units any other
securities or evidences of its indebtedness or assets (excluding those rights,
options, warrants, securities and other assets referred to in and treated under
subsection (i) or (ii) above, and excluding distributions paid
exclusively in cash) (any of the foregoing being hereinafter in this
subsection (iii) called the “Securities”), then in each case the
Conversion Price shall be adjusted so that it shall equal the price determined
by multiplying (I) the Conversion Price in effect immediately prior to the
adjustment by (II) a fraction, the numerator of which shall be the Fair
Market Value on the record date for the determination of holders of Common
Units entitled to receive such distribution less the then fair market value (as
determined in good faith by the General Partner) of the portion of the
Securities so distributed applicable to one Common Unit, and the denominator of
which shall be the Fair Market Value on the record date mentioned above.  For the purposes of this subsection (iii),
a distribution in the form of a Security, which is distributed not only to the
holders of the Common Units on the date fixed for the determination of holders
of Common Units entitled to such distribution of such Security, but also is
distributed with each Common Unit delivered to a person converting a Series E
Preferred Unit after such determination date (together with distributions
thereon paid to the holders of Common Units prior thereto), shall not require
an adjustment of the Conversion Price pursuant to this subsection (iii);
provided that on the date, if any, on which a person converting a Series E
Preferred Unit would no longer be entitled to receive such Security with a
Common Unit, a distribution of such Securities shall be deemed to have occurred,
and the Conversion Price shall be adjusted as provided in this subsection (iii) (and
such day shall be deemed to be “the date fixed for the determination of the
holders of Common Units entitled to receive such distribution” and “the record
date” within the meaning of the preceding sentence).


 


4.             Notwithstanding the
foregoing, no adjustment shall be made pursuant to the preceding clauses (ii) and
(iii) that would result in an increase in the Conversion Price.  No adjustment in the Conversion Price shall
be required unless such adjustment would require a cumulative increase or
decrease of at least 1% in such price; provided, however, that any adjustments
that by reason of this subsection (iv) are not required to be made shall
be carried forward and taken into account in any subsequent adjustment until
made; and provided, further, that any adjustment shall be required and made in
accordance with the provisions of this Section 7 (other than this
subsection (iv)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of Common
Units.  Notwithstanding any other
provisions of this Section 7, the Partnership shall not be required to
make any adjustment to the Conversion Price for the issuance of (i) any
Common Units on account of any plan providing for the reinvestment of
distributions or interest payable on securities of the Partnership or the
General Partner and the investment of additional optional amounts under such
plan or (ii) any options, rights or Common Units pursuant to or on account
of any unit or stock option, unit or stock purchase or any unit or stock-based
compensation plan maintained by the Partnership or the General Partner.  All calculations under this Section 7
shall be made to the nearest cent (with $.005 being rounded upward) or to the
nearest one-tenth of a Unit (with .05 of a Unit being rounded upward), as the
case may be.


 


C-9














 


(d)           If the Partnership shall be
a party to any transaction (including, without limitation, a merger,
consolidation, entity conversion, unit exchange, self tender offer for all or
substantially all of the Common Units, sale of all or substantially all of the
Partnership’s assets or recapitalization of the Common Units or other business
combination or reorganization and excluding any transaction as to which
subsection (c)(i) of this Section 7 applies) (each of the
foregoing being referred to herein as a “Transaction”), in each case as a result of which Common Units shall be
exchanged for or converted into partnership interests, shares, stock,
securities or other properties (including cash or any combination thereof), each Series E Preferred Unit which
is not converted into the right to receive partnership interests, shares,
stock, securities or other property in connection with such Transaction (and
thus remains outstanding) shall thereafter be convertible into the kind and
amount of partnership interests, shares, stock, securities and other property
(including cash or any combination thereof) receivable upon the consummation of
such Transaction by a holder of that number of Common Units into which one Series E
Preferred Unit (including all distributions (whether or not earned or declared)
accumulated and unpaid thereon) was convertible immediately prior to such
Transaction, assuming such holder of Common Units is not a Person with which
the Partnership consolidated or into which the Partnership merged or which merged
into the Partnership or to which such sale or transfer was made, as the case
may be (a “Constituent Person”), or an affiliate of a Constituent Person.  In the event that holders of Common Units
have the opportunity to elect the form or type of consideration to be
received upon consummation of the Transaction, prior to such transaction the
General Partner shall give prompt written notice to each Series E
Preferred Unit holder of such election, and each Series E Preferred Unit
holder shall also have the right to elect, by written notice to the General
Partner, the form or type or consideration to be received upon conversion of
each Series E Preferred Unit held by such holder following consummation of
such Transaction.  If a holder of Series E
Preferred Units fails to make such an election, such holder (and any of its
transferees) shall receive upon conversion of each Series E Preferred Unit
held by such holder (or by any of its transferees) the same consideration that
a holder of that number of Common Units into which one Series E Preferred
Unit was convertible immediately prior to such Transaction would receive if
such Common Unit holder failed to make such an election.  The Partnership shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this subsection (d), and it shall not consent or agree to the
occurrence of any Transaction until the Partnership has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series E Preferred Units that will contain
provisions enabling the holders of Series E Preferred Units that remain
outstanding after such Transaction to convert into the consideration received
by holders of Common Units at the
Conversion Price in effect immediately prior to such Transaction (with the
holder having the option to elect the type of consideration if a choice is
offered in the Transaction as specified above). 
The provisions of this subsection (d) shall similarly apply to
successive Transactions.


 


(e)           If:


 


1.             the Partnership shall declare a distribution on the
Common Units (other than a regular quarterly cash distribution or a
distribution in Common Units); or


 


2.             the Partnership shall authorize the granting to the
holders of the Common Units of rights, options or warrants to subscribe for or
purchase any Units of any class or any other rights, options or warrants; or


 


C-10

















 


3.             there shall be any reclassification of the Common Units
(other than a distribution in Common Units or a subdivision or combination of
Common Units) or any consolidation or merger to which the Partnership is a
party and for which approval of any partners of the Partnership is required,
involving the conversion or exchange of Common Units into securities or other
property, or a unit exchange involving the conversion or exchange of Common
Units into securities or other property, a self tender offer by the Partnership
for all or substantially all of the Common Units, or the sale or transfer of
all or substantially all of the assets of the Partnership as an entirety; or


 


4.             there shall occur the voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership;


 


then
the Partnership shall caused to be mailed to the holders of the Series E
Preferred Units at their addresses as shown on the records of the Partnership,
as promptly as possible a prior notice stating (A) the date on which a
record is to be taken for the purpose of such distribution or grant, or, if a
record is not to be taken, the date
as of which the holders of Common Units of record to be entitled to such
distribution or grant are to be determined or (B) the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding-up is expected to become effective, and the date as of
which it is expected that holders of Common Units of record shall be entitled
to exchange their Common Units for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding-up. 
Failure to give or receive such notice or any defect therein shall not
affect the legality or validity of the proceedings described in this
Section 7.


 


(f)            Whenever the Conversion Price is adjusted as herein
provided, the Partnership shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and shall mail
such notice of such adjustment of the Conversion Price to the holder of each Series E
Preferred Unit at such holder’s last address as shown on the records of the
Partnership.


 


(g)           Any adjustment to the Conversion Price pursuant to
subsection (c) of this Section 7 with respect to any event shall
become effective at such time as is necessary to prevent dilution or expansion
of the conversion rights on account of such event.


 


(h)           For purposes of this Section 7, the number of Common
Units at any time outstanding shall not include any Common Units then owned or
held by or for the account of the Partnership. 
The Partnership shall not make any distribution on Common Units held in
the treasury of the Partnership.


 


(i)            If any action or transaction would require adjustment of
the Conversion Price pursuant to more than one subsection of this
Section 7, only one adjustment shall be made, and such adjustment shall be
the amount of adjustment that results in the lowest absolute value of the
Conversion Price.


 


(j)            If the Partnership shall take any action affecting the
Common Units, other than action described in this Section 7, that in the
reasonable judgment of the Partnership would materially affect the conversion
rights of the holders of the Series E Preferred Units, the 


 


C-11

















 


Conversion Price for the Series E Preferred
Units may be adjusted, to the extent permitted by law, in such manner, if any,
and at such time, as the General Partner, determines to be equitable in the
circumstances.


 


(k)           The Partnership covenants that Common Units issued upon
conversion of the Series E Preferred Units shall be validly issued, fully
paid and non-assessable and the holder thereof shall be entitled to rights of a
holder of Common Units specified in the Partnership Agreement.  Prior to the delivery of any securities that
the Partnership shall be obligated to deliver upon conversion of the Series E
Preferred Units, the Partnership shall endeavor to comply with all federal and
state laws and regulations in respect thereof.


 


(l)            The Partnership will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of Common Units or
other securities or property on conversion of the Series E Preferred Units
pursuant hereto; provided, however, that the Company shall not be required to
pay any tax that may be payable in respect of any transfer involved in the
issue or delivery of Common Units or other securities or property in a name
other than that of the holder of the Series E Preferred Units to be
converted, and no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the Partnership the amount
of any such tax or established, to the reasonable satisfaction of the
Partnership, that such tax has been paid.


 


(m)          Notwithstanding anything to the contrary contained herein,
the adjustment provisions contained in this Section 7 shall be applied so
that there is no duplication of adjustments made pursuant to any other
document.


 


C-12

















 


SCHEDULE D


 


1.             Definitions.  As used in this Schedule D, the following
terms shall have the meanings set forth below, unless the context otherwise
requires:


 


“Distribution
Payment Date” shall mean, with respect to any Distribution Period, the
payment date for the distribution declared by the General Partner on its Common
Units for such Distribution Period or, if no such distribution payment date is
established, the last business day of the first full month following such
Distribution Period.


 


“Distribution
Period” shall mean the quarterly period that is then the distribution
period with respect to the Common Units or, if no such distribution period is
established, the calendar quarter shall be the Distribution Period; provided
that the Distribution Period in which the final liquidation payment is made
pursuant to Section 7.2 of the Third Amended and Restated Agreement of
Limited Partnership, as amended, shall commence on the first day following the
immediately preceding Distribution Period and end on the date of such final
liquidation payment.


 


2.             Designation and Number;
Etc.  The Series F
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 Third
Amended and Restated Agreement of Limited Partnership to the extent
applicable).  The authorized number of Series F
Preferred Units shall be 1,000.  Notwithstanding
anything to the contrary contained herein, in the event of a conflict between
the provisions of this Schedule D and any other provision of the Third Amended
and Restated Agreement of Limited Partnership, the provisions of this Schedule
D shall control.


 


3.             Rank.  The Series F Preferred Units shall, with
respect to the payment of distributions and the distribution of amounts upon
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, rank as follows:


 


(a)           senior to all classes or series of Common Units and to all
Units the terms of which provide that such Units shall rank junior to the Series F Preferred Units;


 


(b)           on a parity with the Series B Preferred Units, Series D
Preferred Units, Series E Preferred Units and each other series of
Preferred Units issued by the Partnership which does not provide by its express
terms that it ranks junior or senior in right of payment to the Series F
Preferred Units with respect to payment of distributions or amounts upon
liquidation, dissolution or winding-up; and


 


(c)           junior to any class or series of Preferred Units issued by
the Partnership that ranks senior to the Series F
Preferred Units.


 


4.             Voting.  Holders of Series F Preferred Units
shall not have any voting rights, except as required by law.


 

















 


5.             Distributions.


 


(a)           With respect to each Distribution Period and subject to
the rights of the holders of Preferred Units ranking senior to or on parity
with the Series F Preferred Units, the holders of Series F Preferred
Units shall be entitled to receive, when, as and if declared by the General
Partner, out of assets of the Partnership legally available for the payment of
the distributions, quarterly cumulative cash distributions in an amount per Series F
Preferred Unit equal to $25. 
Notwithstanding anything to the contrary contained herein, the amount of
distributions described under this paragraph for the initial Distribution
Period, or any other period shorter than a full Distribution Period, shall be
prorated and computed based on the actual number of days in such Distribution
Period relative to the actual number of days in the calendar quarter of which
the Distribution Period is a part.  Such
distributions shall, with respect to each Series F Preferred Unit, accrue
from its issue date, whether or not in, or with respect to, any Distribution
Period or Periods (A) the distributions described above are declared, (B) the
Partnership is contractually prohibited from paying such distributions or (C) there
shall be assets of the Partnership legally available for the payment of such
distributions.  The distributions upon
the Series F Preferred Units for each Distribution Period shall, if and to
the extent declared or authorized by the General Partner on behalf of the
Partnership, be paid in arrears (without interest or other amount) on the
Distribution Payment Date with respect thereto, and, if not paid on such date,
shall accumulate, whether or not in, or with respect to, any Distribution
Period or Periods (X) the distributions are declared, (Y) the
Partnership is contractually prohibited from paying such distributions or (Z) there
shall be assets of the Partnership legally available for the payment of such
distributions (and shall not constitute accumulated distributions prior to such
date).  The record date for distributions
upon the Series F Preferred Units for any Distribution Period shall be the
same as the record date for the distributions upon the Common Units for such
Distribution Period (or, if no such record date is set for the Common Units,
the fifteenth day of the calendar month in which the applicable Distribution
Payment Date falls if prior to such Distribution Payment Date; otherwise, the
fifteenth day of the immediately preceding calendar month).  Accumulated and unpaid distributions for any
past Distribution Periods may be declared and paid at any time, without
reference to any Distribution Payment Date, to holders of record on such date,
not exceeding 45 days preceding the payment date thereof, as may be fixed by
the General Partner.  Any distribution
payment made upon the Series F Preferred Units shall first be credited
against the earliest accrued but unpaid distributions due with respect to such
Units which remains payable.  No
interest, or sum of money in lieu of interest, shall be owing or payable in
respect of any distribution payment or payments on the Series F Preferred
Units, whether or not in arrears.


 


(b)           No distribution on the Series F Preferred Units shall be declared by the
General Partner or paid or set apart for payment by the Partnership at such
time as and to the extent that
the terms and provisions of any bona fide agreement of the Partnership,
including any agreement relating to bona fide indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof, or a default thereunder, or to the extent that such declaration of
payment shall be restricted or prohibited by law (and such failure to pay
distributions on the Series F Preferred Units shall prohibit other
distributions by the Partnership as described in Sections 5(c) or (d) of
this Schedule D).  Notwithstanding the
foregoing, distributions on the Series F Preferred Units shall accumulate
as provided herein whether or not any of the foregoing restrictions exist.


 


D-2

















 


(c)           Except as provided in Section 5(d) of this
Schedule C, so long as any Series F Preferred Units are outstanding, (i) no
cash or non-cash distributions (other than in Common Units or other Units
ranking junior to the Series F Preferred Units as to payment of
distributions and amounts upon liquidation, dissolution or winding-up of the
Partnership) shall be declared or paid or set apart for payment upon the Common
Units or any other class or series of partnership interests in the Partnership
or Units ranking, as to payment of distributions or amounts distributable upon
liquidation, dissolution or winding-up of the Partnership, on a parity with or
junior to the Series F Preferred Units, for any period and (ii) no
Common Units or other Units ranking junior to or on a parity with the Series F
Preferred Units as to payment
of distributions or amounts upon liquidation, dissolution or winding-up of the
Partnership shall be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a sinking fund
for the redemption of any such Units) by the Partnership (except by conversion
into or exchange for other Units ranking junior to the Series F Preferred
Units as to payment of distributions and amounts upon liquidation, dissolution
or winding-up of the Partnership or by redemptions pursuant to Rights
Agreements) unless, in the case of either clause (i) or (ii), full
cumulative distributions have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for such
payment in the next 30 days on the Series F Preferred Units for all
Distribution Periods ending on or prior to the distribution payment date for
the Common Units or such other class
or series of Unit or the date of such redemption, purchase or other
acquisition.


 


(d)           When distributions are not paid in full (or a sum
sufficient for such full payment is not set apart for such payment in the next
30 days) upon the Series F Preferred Units and any other partnership
interests in the Partnership or Units ranking on a parity as to payment of
distributions with the Series F Preferred Units, all distributions
declared upon the Series F Preferred Units and any other partnership
interests in the Partnership or Units ranking on a parity as to payment of
distributions with the Series F Preferred Units shall be declared or paid pro rata so that the amount of
distributions declared per Unit of Series F Preferred Units and such other
partnership interests in the Partnership or Units shall in all cases bear to
each other the same ratio that accrued and unpaid distributions per Unit on the
Series F Preferred Units and such other partnership interests in the
Partnership or Units (which shall not include any accumulation in respect of
unpaid distributions for prior distribution periods if such Units do not have
cumulative distributions) bear to each other.


 


(e)           Except as set forth in Section 6 of this Schedule D,
holders of Series F Preferred Units shall not be entitled to any
distributions, whether payable in cash, property or Units, in excess of the
cumulative distributions described in Section 5(a) of this Schedule
D.


 


(f)            Distributions with respect to the Series F Preferred
Units are intended to qualify as permitted distributions of cash that are not
treated as a disguised sale within the meaning
of Treasury Regulation §1.707-4 and the provisions of this Schedule D
shall be construed and applied consistently with such Treasury Regulations.


 


6.             Liquidation Preference.


 


(a)           In the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Partnership, before any payment or distribution of the assets of the
Partnership (whether 


 


D-3

















 


capital or surplus) shall be made to or set apart
for the holders of Common Units or any other partnership interests in the
Partnership or Units ranking junior to the Series F Preferred Units as to
the distribution of assets upon the liquidation, dissolution or winding-up of
the Partnership, the holders of the Series F Preferred Units shall, with
respect to each such Unit, be entitled to receive, out of the assets of the
Partnership available for distribution to Partners after payment or provision
for payment of all debts and other liabilities of the Partnership and subject
to the rights of the holders of any series of Preferred Units ranking senior to or on parity with the Series F
Preferred Units with respect to payment of amounts upon liquidation,
dissolution or winding-up of the Partnership, an amount equal to $1000, plus an
amount equal to all distributions (whether or not earned or declared) accrued
and unpaid thereon to the date of final distribution (including all accumulated
and unpaid distributions).  If, upon any such voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, the assets of the
Partnership, or proceeds thereof, distributable among the holders of the Series F
Preferred Units are insufficient to pay in full the preferential amount
aforesaid on the Series F Preferred Units and liquidating payments on any
other Units or partnership interests in the Partnership of any class or series
ranking, as to payment of distributions and amounts upon the liquidation,
dissolution or winding-up of the Partnership, on a parity with the Series F
Preferred Units, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series F Preferred Units and any such
other Units or partnership interests in the Partnership ratably in accordance
with the respective amounts that would be payable on such Series F
Preferred Units and such other Units or partnership interests in the
Partnership if all amounts payable thereon were paid in full.  For the purposes of this Section 6, none
of (i) a consolidation or merger of the Partnership with or into another
entity, (ii) a merger of another entity with or into the Partnership or (iii) a
sale, lease or conveyance of all or substantially all of the Partnership’s
assets, properties or business
shall be deemed to be a liquidation, dissolution or winding-up of the
Partnership (unless all or substantially all of the proceeds thereof are
distributed by the Partnership, in which case a liquidation, dissolution or winding-up of the Partnership
shall be deemed to have occurred).


 


(b)           Written notice of such liquidation, dissolution or
winding-up of the Partnership, stating the payment date or dates when, and the
place or places where, the amounts distributable in such circumstances shall be
payable, shall be given by first class mail, postage pre-paid, not less than 30
nor more than 60 days prior to the payment date stated therein, to each record
holder of the Series F Preferred Units at the respective addresses of such
holders as the same shall appear on the transfer records of the Partnership.


 


(c)           After payment of the full amount of liquidating
distributions to which they are entitled as provided in Section 6(a) of
this Schedule D, the holders of Series F Preferred Units shall have no
right or claim to any of the remaining assets of the Partnership.


 


7.             Redemption.


 


Notwithstanding anything to
the contrary contained in this Schedule D or the Third Amended and Restated
Agreement of Limited Partnership, other than preferences in favor of the Series B
Preferred Units, Series D Preferred Units and Series E Preferred
Units, the Partnership may, from time to time and at any time, redeem any or
all of the Series F Preferred Units for an amount equal to $1000, plus an
amount equal to all distributions (whether or not earned or 


 


D-4

















 


declared) accrued and unpaid thereon to the date of such redemption (including
all accumulated and unpaid distributions).


 


D-5

















 


EXHIBIT A


 


[List of Unit Holders]


 














 


EXHIBIT B


 


Allocations


 


1.             Allocation of Net Income and
Net Loss.


 


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


 


1.             First, to the General
Partner to the extent the cumulative Net Loss allocated to the General Partner
pursuant to subparagraph (b)(5) below exceeds the cumulative Net Income
allocated to the General Partner pursuant to this subparagraph (a)(1);


 


2.             Second, to each Partner in
proportion to and to the extent of the amount by which the cumulative Net Loss
allocated to such Partner pursuant to subparagraph (b)(4) exceeds the
cumulative Net Income allocated to such Partner pursuant to this subparagraph
(a)(2);


 


3.             Third, to the General
Partner until the cumulative Net Income allocated to the General Partner
pursuant to this subparagraph (a)(3) equals the cumulative Net Loss
allocated to the General Partner pursuant to subparagraph (b)(3);


 


4.             Fourth, to each holder of
Preferred Units other than the Series D Preferred Units to the extent of
and in proportion to the excess of (I) the cumulative amount of
distributions made in respect of such Preferred Units, reduced by in the case
of the Series B Preferred Units the cumulative Common Unit Reallocated
Amounts, and increased by in the case of the Series B Preferred Units the
cumulative Series B Preferred Unit Reallocated Amounts, pursuant to the
provisos below, over (II) the cumulative amount of Net Income allocated to
each holder of Preferred Units pursuant to this subparagraph (a)(4) and
subparagraph (a)(5) for such period and all prior periods reduced by the
cumulative amount of Net Loss allocated to such holder of Preferred Units
pursuant to subparagraph (b)(2) below for all prior periods; provided,
however, that in the event the cumulative Net Income allocable to the holders
of the Common Units pursuant to this subparagraph (a)(4) and subparagraph
(a)(5) below for such period and all prior periods (before application of
this proviso for such period) exceeds the cumulative distributions made to the
holders of Common Units with respect to such Units for such period and all
prior periods, the Series B Preferred Unit Reallocated Amount shall be
reallocated pro rata to the holders of Series B Preferred Units; and


 


5.             Thereafter, to the holders
of Common Units pro rata in accordance with their Percentage Interests;
provided, however, that in the event the cumulative distributions made to the
holders of Common Units with respect to such Units for such period and all
prior periods exceed the cumulative Net Income allocable to the holders of the
Common Units pursuant to subparagraph (a)(4) and this subparagraph (a)(5) for
such period and all prior periods (before application of this proviso for such
period), the Common Unit Reallocated Amount shall be reallocated pro rata to
the holders of Common Units.


 

















 


The
term “Common Unit Reallocated Amount” shall mean an amount equal to the
difference between (I) the amount of Net Income allocable to the Series B
Preferred Units pursuant to subparagraph (a)(4) with respect to such
fiscal year or other period, and (II) the product obtained by multiplying (A) a
fraction, the numerator of which is the number of the Common Units into which
the Series B Preferred Units are convertible and the denominator of which
is the sum of the number of Common Units into which the Series B Preferred
Units are convertible plus the number of Common Units and (B) the sum of (i) the
Net Income allocable to the Series B Preferred Units pursuant to
subparagraph (a)(4) with respect to such fiscal year or other period and (ii) the
Net Income allocable to the Common Units pursuant to subparagraph (a)(5) with
respect to such fiscal year or other period. 
The Common Unit Reallocated Amount shall be calculated based on the
amounts of Net Income allocable under subparagraphs (a)(4) and (a)(5) prior
to the application of the provisos contained in such subparagraphs with respect
to such fiscal year or other period.


 


The
term “Series B Preferred Unit Reallocated Amount” shall mean the
difference between (I) the amount of Net Income allocable to the Common
Units pursuant to subparagraph (a)(5) with respect to such fiscal year or
other period, and (II) the product obtained by multiplying (A) a fraction,
the numerator of which is the number of Common Units and the denominator of
which is the sum of the number of Common Units into which the Series B
Preferred Units are convertible plus the number of Common Units and (B) the
sum of (i) Net Income allocable to the Series B Preferred Units
pursuant to subparagraph (a)(4) with respect to such fiscal year or other
period and (ii) the Net Income allocable to the Common Units pursuant to
this subparagraph (a)(5) with respect to such fiscal year or other period;
provided, however, that to the extent the allocation of the Series B
Preferred Unit Reallocated Amount to the holders of Series B Preferred
Units would cause such holders on a cumulative basis to have been allocated Net
Income in excess of distributions, the Series B Preferred Unit Reallocated
Amount shall be reduced by such excess. 
The Series B Preferred Unit Reallocated Amount shall be calculated
based on the amounts of Net Income allocable pursuant to subparagraphs (a)(4) and
(a)(5) prior to the application of the provisos contained in such
subparagraphs with respect to such fiscal year or other period.


 


It
is the intention of the parties that the application of subparagraphs (a)(4) and
(a)(5) above will result in corresponding return of capital distributions
(per Unit) to the Series B Preferred Units (on an as-converted basis) and
Common Units on a cumulative basis and shall be applied and interpreted
consistently therewith.


 


In
allocating Net Income for each fiscal year or period, for all purposes of this Section 1(a) (including
for purposes of determining the “Percentage Interests” of the holders of both
the Common Units and the Series D Preferred Units), the holders of the Series D
Preferred Units shall be treated as though they held that number of Common
Units into which their Series D Preferred Units were convertible, as
determined from time to time during such fiscal year or period.


 


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


 


2

















 


1.             First, to the holders of
Common Units, in proportion to their respective Percentage Interests provided
that the Net Loss allocated to a holder of Common Units pursuant to this Section (b)(1) shall
not exceed the maximum amount of Net Loss that can be allocated without causing
a holder of Common Units to have an Adjusted Capital Account Deficit (excluding
for this purpose any increase to such Adjusted Capital Account Deficit for a
holder’s actual obligation to fund a deficit Capital Account balance, including
the obligation of an Obligated Partner to fund a deficit Capital Account
Balance pursuant to Section 7.8 hereof and also excluding for this purpose
the balance of such holder’s Capital Account attributable to such holder’s
Preferred Units, if any);


 


2.             Second, to the holders of
Preferred Units in proportion to each such holder’s Capital Account balance in
such Preferred Units, provided that the Net Loss allocated to a holder of
Preferred Units pursuant to this Section (b)(2) shall not exceed the
maximum amount of Net Loss that can be allocated without causing any holder of
Preferred Units to have an Adjusted Capital Account Deficit (excluding for this
purpose any increase to such Adjusted Capital Account Deficit for a holder’s
actual obligation to fund a deficit Capital Account balance, including the
obligation of an Obligated Partner to fund a deficit Capital Account Balance
pursuant to Section 7.8 hereof);


 


3.             Third, to the General
Partner, until the General Partner’s Adjusted Capital Account Deficit
(excluding for this purpose any increase to such Adjusted Capital Account
Deficit for the obligation of the General Partner to actually fund a deficit
Capital Account balance, including any deemed obligation pursuant to Regulation
Section 1.704-(1)(b)(2)(ii)(c)) equals the excess of (i) the amount
of Recourse Liabilities over (ii) the Aggregate Protected Amount;


 


4.             Fourth, to the Obligated
Partners, in proportion to their respective Protected Amounts, until such time
as the Obligated Partners have been allocated an aggregate amount of Net Loss
pursuant to this subparagraph (b)(4) equal to the Aggregate Protected
Amount; and


 


5.             Thereafter, to the General
Partner.


 


2.             Special
Allocations.


 


Notwithstanding
any provisions of paragraph 1 of this Exhibit B, 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 Partnership fiscal
year (except as a result of conversion or refinancing of Partnership
indebtedness, certain capital contributions or revaluation of the Partnership
property as further outlined in Regulation Sections 1.704-2(d)(4), (f)(2) or
(f)(3)), each Partner shall be specially allocated items of Partnership income
and gain for such year (and, if necessary, subsequent years) in an amount equal
to that Partner’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 


 


3

















 


therewith. 
Allocations pursuant to this paragraph (a) shall be made in
proportion to the respective amounts required to be allocated to each Partner
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
Partnership property as further outlined in Regulation Section 1.704-2(i)(4)),
each Partner shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent years) in an amount equal to that
Partner’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 Partner
pursuant hereto.


 


(c)           Qualified Income Offset.  In the event a Limited Partner unexpectedly
receives any adjustments, allocations or distributions described in Regulation Section 1.704-1(b)(2)(ii)(d)(4),
(5), or (6), and such Limited Partner has an Adjusted Capital Account Deficit,
items of Partnership income and gain shall be specially allocated to such
Partner 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)           Partner Nonrecourse
Deductions.  Partner
Nonrecourse Deductions for any fiscal year or other applicable period shall be
specially allocated to the Partner that bears the economic risk of loss for the
debt (i.e., the Partner Nonrecourse Debt) in respect of which such Partner
Nonrecourse Deductions are attributable (as determined under Regulation Section 1.704-2(b)(4) and
(i)(1)).


 


(e)           Allocations With Respect to
Preferred Unit Redemptions.  After giving effect to the special
allocations set forth above, Net Income of the Partnership shall be allocated
to the holders of Preferred Units, at the time of redemption of such Preferred
Units (other than in the case of a redemption occurring pursuant to a final
liquidation of the Partnership), in an amount equal to the portion of any
redemption distribution that exceeds the Liquidation Preference Amount (other
than any accrued but unpaid distribution thereon) per Preferred Unit
established for such Preferred Unit in the applicable Preferred Unit
designation.  The character of the items
of Net Income allocated to the holders of Preferred Units pursuant to this
subparagraph (e) shall proportionately reflect the relative amounts of the
items of Partnership income and gain as determined for federal income tax
purposes under Section 703(a) of the Code.


 


(f)            Tax Treatment of Conversion
of Preferred Units.  Upon
conversion of a Preferred Unit(s) into Common Unit(s), the Company will
specially allocate to the converting Partner any Net Income or Net Loss
attributable to an adjustment of Gross Asset Values under subparagraph (b) of
the definition of “Gross Asset Value” until the portion of such Partner’s
Capital Account attributable to each Common Unit received upon conversion
equals the Capital Account 


 


4

















 


attributable to a Common Unit at the time of
conversion.  To the extent that such
allocation is insufficient to bring the portion of the Capital Account
attributable to each Common Unit received upon conversion by the converting Partner
to the Capital Account attributable to a Common Unit at the time of conversion,
a portion of the Capital Account of the non-converting Partners will be
shifted, pro rata in accordance with their relative Capital Account balances,
to the converted Partner and such transaction shall be treated by the
Partnership and the Converting Partner as a transaction defined in Section 721
of the Code.


 


(g)           Curative Allocations.  The Regulatory Allocations shall be taken
into account in allocating other items of income, gain, loss, and deduction
among the Partners so that, to the extent possible, the cumulative net amount
of allocations of Partnership items under paragraphs 1 and 2 of this Exhibit B
shall be equal to the net amount that would have been allocated to each Partner
if the Regulatory Allocations had not occurred. 
This subparagraph (g) is intended to minimize to the extent
possible and to the extent necessary any economic distortions which may result
from application of the Regulatory Allocations and shall be interpreted in a
manner consistent therewith.  For
purposes hereof, “Regulatory Allocations” shall mean the allocations provided
under subparagraphs 2(a) through (d).


 


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 Partners
on the same basis as their respective book items.


 


(b)           Sections 1245/1250 Recapture.  If any portion of gain from the sale of
property is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 (“Affected Gain”), then (A) such
Affected Gain shall be allocated among the Partners 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 Partners who are allocated
Affected Gain pursuant to Clause (A) so that, to the extent possible, the
other Partners are allocated the same amount, and type, of capital gain that
would have been allocated to them had Code Sections 1245 and/or 1250 not
applied.  For purposes hereof, in order
to determine the proportionate allocations of depreciation and amortization
deductions for each fiscal year or other applicable period, such deductions
shall be deemed allocated on the same basis as 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 Partnership property that is subject to Code Section 704(c) and/or
Regulation Section 1.704-1(b)(2)(iv)(f) (collectively “Section 704(c) Tax
Items”) shall be allocated in accordance with said Code section and/or
Regulation Section 1.704-1(b)(4)(i), as the case may be.  The allocation of Tax Items shall be in
accordance with the “traditional method” set forth in Treas. Reg.
§1.704-3(b)(1), unless otherwise determined by the General Partner, and shall
be subject to the ceiling rule stated in Regulation Section 1.704-3(b)(1).  The General Partner is authorized to
specially allocate Tax Items (other than Section 704(c) Tax Items) to
cure for the effect of the ceiling rule. 
The intent of this Section 3(c) is that each Partner who
contributed to the capital of the 


 


5

















 


Partnership a partnership interest in an existing
Property Partnership will bear, through reduced allocations of depreciation and
increased allocations of gain or other items, the tax detriments associated
with any precontribution gain and this Section 3(c) shall be
interpreted consistently with such intent.


 


4.             Allocations
Upon Final Liquidation.


 


With
respect to the fiscal year in which the final liquidation of the Partnership
occurs in accordance with Section 7.2 of the Agreement, and notwithstanding
any other provision of Sections 1, 2, or 3 hereof, items of Partnership income,
gain, loss and deduction shall be specially allocated to the Partners in such
amounts and priorities as are necessary so that the positive capital accounts
of the Partners shall, as closely as possible, equal the amounts that will be
distributed to the Partners pursuant to Section 7.2.


 


6

















 


EXHIBIT C


 

















 


[Obligated Partners]