FINANCING TO, ANY COMPANY, BUSINESS,
ORGANIZATION, DIVISION, BUSINESS UNIT OR PERSON IN THE BUSINESS OF OWNING,
OPERATING, LEASING, DEVELOPING OR MANAGING A RETAIL SHOPPING MALL WITHIN SUCH
10-MILE RADIUS, PROVIDED, HOWEVER, THAT PARENT AND PARENT LP SHALL NOT BE IN
VIOLATION OF THIS SECTION 8.7.D TO THE EXTENT THAT IT OWNS OR OPERATES A
PROPERTY WHICH WOULD OTHERWISE VIOLATE THIS SECTION 8.7.D IF SUCH PROPERTY
BECAME OWNED BY PARENT OR PARENT LP AS PART OF A SALE, MERGER, CONSOLIDATION OR
OTHER BUSINESS COMBINATION INVOLVING THE GENERAL PARTNER THAT COMPLIES WITH
SECTION 11.2.B HEREOF.
FURTHER, PARENT AND PARENT LP EXPRESSLY AGREE THAT UPON
THE EXERCISE OF THE PARTICIPATING ELECTION RIGHT, PARENT AND PARENT LP WILL TAKE
ANY ACTION NECESSARY TO ACKNOWLEDGE AND REAFFIRM IN WRITING ITS OBLIGATIONS IN
THIS SECTION 8.7.D IN ANY MANNER AS MAY BE REQUESTED BY PARTICIPATING LP
REPRESENTATIVE.
(2)
IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT ANY BREACH OF THE
PROVISIONS OF THIS SECTION 8.7.D BY PARENT OR PARENT LP WILL RESULT IN
IRREPARABLE INJURY TO THE PARTICIPATING LIMITED PARTNERS, THAT THE REMEDY AT LAW
ALONE WILL BE AN INADEQUATE REMEDY FOR SUCH BREACH AND THAT, IN ADDITION TO ANY
OTHER REMEDY IT MAY HAVE, THE PARTICIPATING LIMITED PARTNERS SHALL BE ENTITLED
TO ENFORCE THE SPECIFIC PERFORMANCE OF THIS SECTION 8.7.D AGAINST THE OTHER
PARTIES HERETO THROUGH BOTH TEMPORARY AND PERMANENT INJUNCTIVE RELIEF WITHOUT
THE NECESSITY OF PROVING ACTUAL DAMAGES, BUT WITHOUT LIMITATION OF THEIR RIGHT
TO DAMAGES AND ANY AND ALL OTHER REMEDIES AVAILABLE TO THEM, IT BEING UNDERSTOOD
THAT INJUNCTIVE RELIEF IS IN ADDITION TO, AND NOT IN LIEU OF, SUCH OTHER
REMEDIES.
IN THE EVENT THAT ANY COVENANT CONTAINED IN THIS SECTION 8.7.D SHALL
BE DETERMINED BY ANY COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE BY
REASON OF ITS EXTENDING FOR TOO GREAT A PERIOD OF TIME OR OVER TOO GREAT A
GEOGRAPHICAL AREA OR BY REASON OF ITS BEING TOO EXTENSIVE IN ANY OTHER RESPECT,
IT SHALL BE INTERPRETED TO EXTEND ONLY OVER THE MAXIMUM PERIOD OF TIME FOR WHICH
IT MAY BE ENFORCEABLE AND/OR OVER THE MAXIMUM GEOGRAPHICAL AREA AS TO WHICH IT
MAY BE ENFORCEABLE AND/OR TO THE MAXIMUM EXTENT IN ALL OTHER RESPECTS AS TO
WHICH IT MAY BE ENFORCEABLE, ALL AS DETERMINED BY SUCH COURT IN SUCH ACTION.
THE EXISTENCE OF ANY CLAIM OR CAUSE OF ACTION WHICH PARENT OR PARENT LP MAY HAVE
AGAINST ANY
57
OF THE PARTICIPATING LIMITED PARTNERS SHALL NOT CONSTITUTE A DEFENSE OR BAR TO
THE ENFORCEMENT OF ANY OF THE PROVISIONS OF THIS SECTION 8.7.D.
(3)
THE PROVISIONS OF THIS SECTION 8.7.D WERE NEGOTIATED IN GOOD FAITH
BY THE PARTIES HERETO, AND THE PARTIES HERETO AGREE THAT SUCH PROVISIONS ARE
REASONABLE AND ARE NOT MORE RESTRICTIVE THAN NECESSARY TO PROTECT THE LEGITIMATE
INTERESTS OF THE PARTIES HERETO.
Section 8.8.
Partnership Call Right
A.
FOR A PERIOD OF THREE (3) MONTHS BEGINNING ON DECEMBER 1, 2009,
THE GENERAL PARTNER SHALL HAVE THE RIGHT (THE "PARTNERSHIP CALL RIGHT") TO
REQUIRE THE PARTICIPATING LIMITED PARTNERS