EXHIBIT 2.2
VANCOUVER MALL II LIMITED PARTNERSHIP
(A Delaware Limited Partnership)
AGREEMENT OF LIMITED PARTNERSHIP
Dated as of October 6, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ II LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
TABLE OF CONTENTS
PAGE
ARTICLE I GENERAL PROVISIONS.....................................................................................1
1.1 Definitions...............................................................................................1
1.2 Formation and Name of the Partnership.....................................................................6
1.3 Effective Date............................................................................................6
1.4 Principal Place of Business of the Partnership............................................................6
1.5 Title to Partnership Property.............................................................................7
1.6 Purposes of the Partnership...............................................................................7
1.7 Term......................................................................................................7
ARTICLE II PARTNERS..............................................................................................7
2.1 Partners..................................................................................................7
2.2 Powers of the General Partner.............................................................................7
2.3 Powers of the Limited Partner.............................................................................8
2.4 Expenses and Services of the Partners.....................................................................8
ARTICLE III MANAGEMENT AND OPERATION.............................................................................8
3.1 Acts and Decisions........................................................................................8
3.2 Care......................................................................................................8
ARTICLE IV CAPITAL ACCOUNTS; DISTRIBUTIONS; ALLOCATIONS..........................................................8
4.1 Capital Contributions.....................................................................................8
4.2 Capital Accounts..........................................................................................9
4.3 Amounts and Priority of Distributions.....................................................................9
4.4 Timing of Distributions..................................................................................10
4.5 Allocation of Income and Loss............................................................................10
4.6 Special Allocations......................................................................................10
4.7 Tax Elections............................................................................................10
ARTICLE V LIABILITY; CONFIDENTIALITY; INDEMNIFICATION; OUTSIDE BUSINESSES.......................................10
5.1 Liability of Partners....................................................................................10
5.2 Confidentiality..........................................................................................11
5.3 Duties and Liabilities of Covered Persons................................................................11
5.4 Indemnification..........................................................................................12
5.5 Outside Businesses.......................................................................................13
ARTICLE VI REPORTS TO PARTNERS; ................................................................................13
6.1 Tax Matters Partner......................................................................................13
ARTICLE VII ADDITIONAL PARTNERS; TRANSFER; WITHDRAWAL, OPTION TO PURCHASE........................................14
7.1 Additional Partners......................................................................................14
7.2 Transfer.................................................................................................14
7.3 Withdrawals..............................................................................................14
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TABLE OF CONTENTS
continued
7.4 Resignation of General Partner.............................................................................
7.5 Option to Purchase.......................................................................................14
ARTICLE VIII TERMINATION; DISSOLUTION; LIQUIDATION..............................................................15
8.1 Termination of the Partnership...........................................................................15
8.2 Events of Dissolution....................................................................................15
8.3 Liquidation..............................................................................................16
ARTICLE IX MISCELLANEOUS........................................................................................16
9.1 Successors and Assigns...................................................................................16
9.2 No Waiver................................................................................................16
9.3 Notices..................................................................................................16
9.4 Severability.............................................................................................17
9.5 Amendments; Waiver.......................................................................................17
9.6 Counterparts.............................................................................................17
9.7 Headings, Etc............................................................................................17
9.8 No Right to Partition....................................................................................17
9.9 No Third Party Rights....................................................................................17
9.10 Applicable Law..........................................................................................17
9.11 No Reliance.............................................................................................17
9.12 Amendment...............................................................................................18
Exhibit A.........Certificate of Formation
Schedule 1........Interests
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LIMITED PARTNERSHIP AGREEMENT
FOR VANCOUVER MALL II LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
THIS LIMITED PARTNERSHIP AGREEMENT (this "AGREEMENT"), dated as of
October 6, 2000, is entered into by and between VANCOUVER MALL LLC, a Delaware
limited partnership ("VM LLC"), and VANCOUVER ASSOCIATES, a California limited
partnership (the "LIMITED PARTNER"). VM LLC is sometimes referred to herein as
the "GENERAL PARTNER." The Limited Partner and VM LLC are sometimes referred to
herein collectively as the "PARTNERS" and individually as a "PARTNER."
WHEREAS, the General Partner and the Limited Partner both were both
partners in Vancouver Mall, a Washington general partnership (the "WASHINGTON
PARTNERSHIP");
WHEREAS, the General Partner and the Limited Partner have formed the
Partnership (as hereafter defined) pursuant to the provisions of the Act (as
hereinafter defined) and, on the date hereof, have merged the Washington
Partnership with and into the Partnership pursuant to an Agreement and Plan of
Merger between the Washington Partnership and the Partnership, dated as of the
date hereof, with the Partnership being the surviving entity;
WHEREAS, pursuant to such merger, all right and interest of the Limited
Partner in the Washington Partnership was converted from a general partnership
interest in the Washington Partnership to a limited partnership interest in the
Partnership;
WHEREAS, pursuant to such merger, all right and interest of the General
Partner in the Washington Partnership was converted from a general partnership
interest in the Washington Partnership to a general partnership interest in the
Partnership; and
WHEREAS, the General Partner and the Limited Partner each desire to
enter into this Partnership Agreement and to provide for the rights and
obligations of all Partners (as hereinafter defined) of the Partnership;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Partners hereby agree as
follows:
ARTICLE I
GENERAL PROVISIONS
1.1 DEFINITIONS. For the purpose of this Agreement, the following terms
shall have the following meanings:
"ACT" shall have the meaning set forth in the Section 1.2 hereto.
"AFFILIATE" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
the specified Person. As used
herein, "control" shall mean the ownership of more than 50% of the economic and
voting interest in the specified Person.
"AGREEMENT" shall have the meaning set forth in the recitals hereto.
"ALLOCATION DATE" shall mean (i) the last day of each Fiscal Year, (ii)
the day before the date of any change in ownership of the Partnership, and (iii)
any other date determined by the General Partner as appropriate for a closing of
the Partnership's books.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
"CAPITAL ACCOUNT" shall have the meaning set forth in Section 4.2.
"CAPITAL CONTRIBUTION" shall mean, with respect to each Partner, the
amount of cash contributed by such Partner to the capital of the Partnership
from time to time pursuant to Section 4.1.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"CONFIDENTIAL INFORMATION" shall have the meaning specified in Section
5.2.
"COVERED PERSON" shall have the meaning set forth in Section 5.3.
"DEED OF TRUST" means the Deed of Trust, Assignment of Leases and Rents,
Security Agreement, and Financing Statement among the Partnership, as Borrower,
Chicago Title Insurance Company as Trustee and the Lender, as Beneficiary dated
as of October 6, 2000.
"DISTRIBUTABLE PROCEEDS" shall mean the amount, if any, by which (i) all
cash received by the Partnership (excluding Capital Contributions) to the extent
that such cash has not previously been distributed pursuant to Section 4.3(a)
exceeds (ii) the Partnership's cash expenses paid or then due and payable and a
reasonable reserve, as determined by the General Partner, for accrued or
anticipated future expenses and contingent liabilities of the Partnership, to
the extent that such expenses and reserves have not been paid or provided for
from Capital Contributions.
"FAIR VALUE" shall mean with respect to all assets, other than cash, the
value determined by the General Partner.
"FISCAL YEAR" shall mean each fiscal year of the Partnership (or portion
thereof), which shall end on December 31; PROVIDED, HOWEVER, that upon
termination of the Partnership, "FISCAL YEAR" shall mean the period from the
January 1 immediately preceding such termination to the date of such
termination.
"GENERAL PARTNER" shall mean Vancouver Mall LLC, or its successor in
interest.
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"INDEMNIFIED PARTY" shall have the meaning set forth in Section 5.4(b).
"INTEREST" shall mean, with respect to any Partner, the percentage set
forth opposite such Partner's name on SCHEDULE 1 hereto, as such percentage may
change from time to time in accordance with the terms hereof.
"LENDER" means ▇▇▇▇▇▇ Brothers Bank FSB or its successors and assigns.
"LIMITED PARTNER" shall mean Vancouver Associates, or its successor in
interest.
"MATERIAL ACTION" with respect to the Partnership, means to institute
proceedings to have such entity be adjudicated bankrupt or insolvent, or consent
to the institution of bankruptcy or insolvency proceedings against such entity
or file a petition seeking, or consent to, reorganization or relief with respect
to such entity under any applicable federal or state law relating to bankruptcy,
or seek or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such entity or a
substantial part of its property, or make any assignment for the benefit of
creditors of such entity, or admit in writing such entity's inability to pay its
debts generally as they become due, or, to the fullest extent permitted by law,
take action in furtherance of any such action, or dissolve, liquidate,
consolidate, merge, or sell all or substantially all of the assets of the
Partnership, or engage in any other business activities other than those
referred to in Section 1.6.
"NOTE" has the meaning set forth in the Deed of Trust.
"PARTNERSHIP" shall mean Vancouver Mall II Limited Partnership.
"PERIOD" shall mean, for the first Period, the period commencing on the
date of this Agreement and ending on the next Allocation Date. All succeeding
periods shall commence on the day after an Allocation Date and end on the next
Allocation Date.
"PERSON" shall mean an individual, a corporation, a company, a voluntary
association, a partnership, a joint venture, a limited liability partnership, a
trust, an estate, an unincorporated organization or other entity.
"REGULATIONS" shall mean the regulations promulgated by the Treasury
Department under the Code.
"SINGLE PURPOSE BANKRUPTCY REMOTE ENTITY" Capitalized terms in this
definition have the meanings assigned to them in the Deed of Trust and
references to sections in this definition are to sections of the Deed of Trust.
"Single Purpose Bankruptcy Remote Entity" shall mean a corporation, limited
partnership or limited liability company which does not and shall not:
(a) engage in any business or activity other than the acquisition,
development, ownership, operation, leasing, managing and maintenance of the
Property and entering into the Loan, and activities incidental thereto;
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(b) acquire or own any material assets other than (i) the Property, and
(ii) such incidental Personal Property as may be necessary for the operation of
the Property;
(c) except as may be permitted in Section 8.3 (e) of the Deed of Trust,
merge into or consolidate with any person or entity or dissolve, terminate or
liquidate in whole or in part, transfer or otherwise dispose of all or
substantially all of its assets or change its legal structure;
(d) (i) fail to observe its organizational formalities or preserve its
existence as an entity duly organized, validly existing and in good standing (if
applicable) under the laws of the jurisdiction of its organization or formation,
and qualification to do business in the state where the Property is located, if
applicable, or (ii) without the prior written consent of Lender, amend, modify,
terminate or fail to comply with the single purpose entity provisions of
Borrower's Partnership Agreement, ARTICLEs or Certificate of Incorporation,
ARTICLEs of Organization or similar organizational documents, as the case may
be, whichever is applicable;
(e) own any subsidiary or make any investment in, any person or entity
without the consent of Lender;
(f) commingle its assets with the assets of any of its members, general
partners, affiliates, principals or of any other person or entity, participate
in a cash management system with any other entity or person or fail to use its
own separate stationery, telephone number, invoices and checks;
(g) incur any debt, secured or unsecured, direct or contingent (including
guaranteeing any obligation), other than the Debt, except for Taxes, Other
Charges, Insurance Premiums, leasing expenses and other trade payables in the
ordinary course of its business of owning and operating the Property, provided
that such debt (i) is not evidenced by a note, (ii) is paid within sixty (60)
days of the date incurred or due, (iii) does not exceed in the aggregate
$3,000,000.00 and (iv) is payable to trade creditors and in amounts as are
normal and reasonable under the circumstances;
(h) become insolvent and fail to pay its debts and liabilities
(including, as applicable, shared personnel and overhead expenses) from its
assets as the same shall become due;
(i) (i) fail to maintain its records (including financial statements),
books of account and bank accounts separate and apart from those of the members,
general partners, principals and affiliates of Borrower, the affiliates of a
member, general partner or principal of Borrower, and any other person or
entity, (ii) permit its assets or liabilities to be listed as assets or
liabilities of another entity on the financial statement of any other entity or
person or (iii) include the assets or liabilities of any other person or entity
on its financial statements;
(j) enter into any contract or agreement with any member, general
partner, principal or affiliate of Borrower or of Principal, or any member,
general partner, principal or affiliate thereof, (other than that certain Master
Development Framework Agreement between Centermark Properties, Inc. and
Westfield Corporation, Inc. dated as of July 1, 1996, as amended
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by that certain First Amendment to Master Development Framework Agreement made
as of May 21, 1997 between Westfield America, Inc. (f/k/a Centermark Properties,
Inc.) and Westfield Corporation, Inc., or any development agreement executed in
accordance with the terms thereof that certain Management Agreement between
Borrower and Westfield Corporation, Inc., dated as of October 6, 2000) except
upon terms and conditions that are commercially reasonable, intrinsically fair
and substantially similar to those that would be available on an arms-length
basis with third parties other than any member, general partner, principal or
affiliate of Borrower or of Principal, or any member, general partner, principal
or affiliate thereof;
(k) to the fullest extent permitted by law, seek the dissolution or
winding up in whole, or in part, of Borrower;
(l) fail to correct any known misunderstandings regarding the separate
identity of Borrower, or any member, general partner, principal or affiliate
thereof or any other person or entity;
(m) guarantee or become obligated for the debts of any other entity or
person or hold itself out to be responsible for the debts of another entity
or person;
(n) make any loans or advances to any third party, including any member,
general partner, principal or affiliate of Borrower or of Principal, as the case
may be, or any member, general partner, principal or affiliate thereof, and
shall not acquire obligations or securities of any member, general partner,
principal or affiliate of Borrower or Principal, as the case may be, or any
member, general partner, or affiliate thereof;
(o) fail to file its own tax returns or be included on the tax returns of
any other person or entity except as required by applicable law;
(p) fail either to hold itself out to the public as a legal entity
separate and distinct from any other entity or person or to conduct its business
solely in its own name or a name franchised or licensed to it by an entity other
than an affiliate of Borrower or of Principal (other than the trade name
"Westfield" or "Westfield Shoppingtown"), as the case may be, and not as a
division or part of any other entity in order not (i) to mislead others as to
the identity with which such other party is transacting business, or (ii) to
suggest that Borrower or Principal, as the case may be, is responsible for the
debts of any third party (including any member, general partner, principal or
affiliate of Borrower, or of Principal, as the case may be, or any member,
general partner, principal or affiliate thereof);
(q) fail to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations;
(r) share any common logo (other than the Westfield logo) with or hold
itself out as or be considered as a department or division of (i) any general
partner, principal, member or affiliate of Borrower or of Principal, as the case
may be, (ii) any affiliate of a general partner,
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principal or member of Borrower or of Principal, as the case may be, or (iii)
any other person or entity;
(s) fail to allocate fairly and reasonably any overhead expenses that are
shared with an affiliate, including paying for office space and services
performed by any employee of an affiliate;
(t) pledge its assets for the benefit of any other person or entity other
than with respect to the Loan;
(u) fail to maintain a sufficient number of employees in light of its
contemplated business operations;
(v) fail to provide in its (i) articles of organization, certificate of
formation, operating agreement and/or limited liability company agreement, as
applicable, if it is a limited liability company, (ii) limited partnership
agreement, if it is a limited partnership or (iii) certificate of incorporation,
if it is a corporation, that for so long as the Loan is outstanding pursuant to
the Note and this Security Instrument, it shall not file or consent to the
filing of any petition, either voluntary or involuntary, to take advantage of
any applicable insolvency, bankruptcy, liquidation or reorganization statute, or
make an assignment for the benefit of creditors without the affirmative vote of
the Independent Directors of the General Partner (as defined in the Amended and
Restated Limited Liability Company Agreement of the General Partner, dated of
even date herewith) and all of the general partners/managing members/directors;
(w) fail to hold its assets in its own name;
(x) if Borrower is a corporation, fail to consider the interests of its
creditors in connection with all corporate actions to the extent permitted by
applicable law;
(y) have any of its obligations guaranteed by an affiliate; and
(z) violate or cause to be violated the assumptions made with respect to
Borrower and its principals in that certain opinion letter pertaining to
substantive consolidation delivered by Debevoise & ▇▇▇▇▇▇▇▇ to Lender and the
Rating Agencies in connection with the Loan.
"SPECIAL ALLOCATIONS" shall have the meaning set forth in Section 4.6.
1.2 FORMATION AND NAME OF THE PARTNERSHIP. VM LLC and the Limited Partner
the "Partnership" pursuant to the provisions of the Delaware Revised Uniform
Limited Partnership Act (as it may be amended from time to time, and any
supplement thereto, the "ACT"). The name of the Partnership is Vancouver Mall II
Limited Partnership. The General Partner shall cause to be executed and filed,
if necessary, any further certificates and documents as may be necessary or
appropriate from time to time to comply with all requirements for the continued
existence and operation of a limited partnership in the State of Delaware and
all other jurisdictions where the Partnership may desire to conduct its
business.
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1.3 EFFECTIVE DATE. This Agreement shall be effective as of the date
hereof.
1.4 PRINCIPAL PLACE OF BUSINESS OF THE PARTNERSHIP. The principal place
of business of the Partnership shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be designated from
time to time by General Partner. The Partnership may maintain such other places
of business as General Partner may deem advisable from time to time. The
Partnership shall keep its books and records at its principal office or at such
other place in the United States as may from time to time be designated by the
General Partner. The General Partner shall give prompt notice to each partner of
any change in the location of the Partnership's principal office or the location
of its books and records.
1.5 TITLE TO PARTNERSHIP PROPERTY. Title to all assets owned by the
Partnership, whether tangible or intangible, shall be held by the Partnership as
an entity and no Partner, individually, shall have any ownership of any such
asset. The Partnership may hold any of its assets in its own name or in the name
of a nominee, which nominee may be one or more individuals, corporations,
partnerships, trusts or other entities.
1.6 PURPOSES OF THE PARTNERSHIP. NOTWITHSTANDING ANY OTHER PROVISIONS OF
THIS AGREEMENT AND ANY OTHER DOCUMENT GOVERNING THE FORMATION, MANAGEMENT OR
OPERATION OF THE PARTNERSHIP, AT ALL TIMES WHILE ANY AMOUNTS OF PRINCIPAL,
INTEREST OR OTHER AMOUNTS DUE AND OWING UNDER THE NOTE REMAIN OUTSTANDING, THE
PURPOSES OF THE PARTNERSHIP SHALL COMPRISE, AND THE NATURE OF THE BUSINESS TO BE
CONDUCTED AND PROMOTED BY THE PARTNERSHIP IS SOLELY: (I) ACQUIRING, DEVELOPING,
OWNING, HOLDING, SELLING, LEASING, TRANSFERRING, EXCHANGING, MANAGING, OPERATING
AND FINANCING THE SHOPPING CENTER KNOWN AS WESTFIELD SHOPPINGTOWN VANCOUVER
LOCATED IN THE UNITED STATES OF AMERICA; (II) ENTERING INTO THE DEED OF TRUST
AND THE NOTE AND (III) ENGAGING IN ALL ACTIVITIES RELATED OR INCIDENTAL TO ANY
OF THE FOREGOING BUT NOT IN CONTRAVENTION OF ANY OF THE PROVISIONS OF THIS
AGREEMENT OR THE ACT; AND THE GENERAL PARTNER AND THE PARTNERSHIP SHALL TAKE ALL
ACTIONS NECESSARY TO CAUSE THE PARTNERSHIP AND THE GENERAL PARTNER TO COMPLY
WITH, AND WILL REFRAIN FROM TAKING ANY ACTIONS IN VIOLATION OF, THE DEFINED TERM
"SINGLE PURPOSE BANKRUPTCY REMOTE ENTITY". ANY SUBSTITUTE GENERAL PARTNER
PERMITTED UNDER THIS AGREEMENT SHALL BE REQUIRED TO COMPLY WITH THIS SECTION
1.6.
1.7 TERM. The Partnership commenced upon the filing of a Certificate of
Limited Partnership in the office of the Secretary of State of Delaware, and
shall continue until June 30, 2096, unless sooner terminated or dissolved under
the provisions of this Agreement or pursuant to law.
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ARTICLE II
PARTNERS
2.1 PARTNERS. The names and the business residence or mailing addresses
of the Partners are as set forth on SCHEDULE 1 hereto.
2.2 POWERS OF THE GENERAL PARTNER. The business and affairs of the
Partnership shall be managed exclusively by the General Partner, which may
exercise all such powers of the Partnership and do all such lawful acts and
things as are not prohibited by the Act or this Agreement.
2.3 POWERS OF THE LIMITED PARTNER. The Limited Partner shall have no
right to, and shall not, take part in the management or control of the
Partnership's business and affairs or act for or bind the Partnership, except as
otherwise provided in this Agreement. Except as otherwise provided in this
Agreement, the Limited Partners shall not take part in or interfere in any
manner with the conduct or control of the business of the Partnership nor have
the right to vote on any matter relating to the Partnership, its business or
affairs.
2.4 EXPENSES AND SERVICES OF THE PARTNERS. During the existence of the
Partnership, the Partners shall devote such time and effort to the Partnership
business as may be necessary to promote the interests of the Partnership and the
mutual interests of the Partners. The General Partner shall charge the
Partnership and be reimbursed for all expenses (including, without limitation,
legal and accounting fees and travel expenses) incurred by the General Partner
in connection with the Partnership's business, and may allocate to the
Partnership on any basis selected by the General Partner in good faith which is
consistent with good accounting practices, a portion of any and all expenses
incurred for the mutual benefit of the Partnership and the other operations,
businesses or affairs of the General Partner or its affiliates. Each Partner may
have other business interests and may engage in any other activities in addition
to those relating to the Partnership, including similar ventures, and neither
the Partnership nor the other Partner shall by virtue of this Agreement have any
right, title or interest in or to such independent ventures.
ARTICLE III
MANAGEMENT AND OPERATION
3.1 ACTS AND DECISIONS. The business and affairs of the Partnership shall
be managed and controlled solely and exclusively by the General Partner, who
shall have all of the rights that may be possessed by a general partner pursuant
to the Act and such rights and powers as are otherwise conferred by law or are
necessary, advisable or convenient for the management of the business and
affairs of the Partnership.
3.2 CARE. Notwithstanding anything contained in Section 5.3 hereof to the
contrary, the General Partner shall not be held to the standard of care of a
fiduciary and shall not be an agent for the Limited Partner. Subject to the
foregoing, (i) the General Partner shall not be liable for
8
any error in judgment or for any action taken or omitted to be taken by it
hereunder except for its gross negligence or willful misconduct, and (ii) the
General Partner may rely on legal counsel, independent public accountants and
other experts selected or accepted by the General Partner as provided herein and
shall not be liable for any action taken or omitted to be taken in good faith by
the General Partner in accordance with the advice of such counsel, accountants
or experts.
ARTICLE IV
CAPITAL ACCOUNTS; DISTRIBUTIONS; ALLOCATIONS
4.1 CAPITAL CONTRIBUTIONS.
(a) Each Partner has previously made contributions to the capital of
the Partnership. No Partner shall be obligated to make any further contributions
to the capital of the Partnership. No Partner shall be entitled to interest on
its Capital Contribution amount or its Capital Account amount.
(b) The Partnership may from time to time require funds in addition to
the funds which may be available to the Partnership out of (i) the capital
contributions of the Partners, (ii) gross revenues generated from its
operations, (iii) loans made to the Partnership, and (iv) reserves of the
Partnership in order to meet its Cash Needs (as hereinafter defined). If, as and
when the General Partner shall determine, in its sole discretion, that funds are
or will be required to meet Cash Needs of the Partnership, the General Partner
may, but shall not be obligated to, contribute funds to the Partnership in an
amount equal to the Cash Needs as an additional capital contribution (in which
event the Interest of the Partners will be adjusted). As used herein, "CASH
NEEDS" shall mean and include any cash needs or requirements of whatever kind or
nature, incurred or to be incurred in the course of the Partnership business,
for which sufficient funds are not available to the Partnership from the sources
described in clauses (i), (ii), (iii) and (iv) of this Section 4.1(b).
(c) The provisions of this Section 4.1 are intended only to govern the
obligations of the Partners INTER SE, and shall not be enforceable against the
Partners by any creditor of the Partnership or of any partner, or by any party
claiming by or through any such creditor or any partner.
(d) Notwithstanding anything to the contrary contained in Section
4.1(b) or elsewhere in this Agreement, it is agreed and understood by the
Partners that in no event shall the General Partner be obligated to request
additional capital contributions pursuant to Section 4.1(b) in order to satisfy
the Cash Needs of the Partnership.
4.2 CAPITAL ACCOUNTS. The Partnership shall maintain a "CAPITAL ACCOUNT"
for each partner on the books of the Partnership and, as of the close of
business of each Allocation Date, items of income, gain, loss or deduction shall
be allocated in accordance with the following provisions:
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(a) Each Partner's Capital Account shall be increased by the amount of
such Partner's Capital Contributions; any item of income or gain allocated to
such partner pursuant to Section 4.5 or Section 4.6; and the amount of
Partnership liabilities, if any, assumed by such Partner or secured, in whole or
in part, by any Partnership assets that are distributed to such partner.
(b) Each Partner's Capital Account shall be decreased by the amount of
cash and the Fair Value on the date of distribution of any other Partnership
property distributed to such partner pursuant to Sections 4.3(a) or 8.3(b); any
item of loss or deduction allocated to such partner pursuant to Section 4.5 or
Section 4.6; and the amount of liabilities, if any, of such partner assumed by
the Partnership.
4.3 AMOUNTS AND PRIORITY OF DISTRIBUTIONS.
(a) Distributable Proceeds shall be distributed to the Partners pro
rata in accordance with their Interests.
(b) Distributions pursuant to this Section 4.3 shall be made only in
cash.
4.4 TIMING OF DISTRIBUTIONS. Distributions shall be made at such other
times, and in such amounts, as the General Partner shall determine.
4.5 ALLOCATION OF INCOME AND LOSS.
(a) Each item of income, gain, loss and deduction of the Partnership
shall be allocated among the Capital Accounts of the Partners with respect to
each Period pro rata in accordance with their Interests.
(b) For federal, state and local income tax purposes, items of
income, gain, loss, deduction and credit shall be allocated to the Partners
in accordance with the allocations of the corresponding items for Capital
Account purposes under Section 4.5 and Section 4.6 hereof. Tax credits shall
be equitably allocated by the General Partner.
4.6 SPECIAL ALLOCATIONS. Section 704 of the Code and the Regulations
issued thereunder, including but not limited to the provisions of such
Regulations addressing qualified income offset provisions, minimum gain
chargeback requirements and allocations of deductions attributable to
nonrecourse debt and partner nonrecourse debt, are hereby incorporated by
reference. If, as a result of the provisions of Section 704 of the Code and the
Regulations issued thereunder, items of income, gain, loss and deductions are
allocated to the Partners in a manner that is inconsistent with the Partner's
Interests, to the extent permitted under the Regulations, items of future income
and loss shall be allocated among the Partners so as to prevent such allocations
from distorting the manner in which Partnership distributions will be divided
among the Partners pursuant to this Agreement ("SPECIAL ALLOCATIONS").
4.7 TAX ELECTIONS. The General Partner may, in its discretion, make or
refrain from making any income or other tax elections for the Partnership,
including the election with respect
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to the tax basis of assets of the Partnership provided for in section 754 of the
Code, which it deems necessary or advisable in the best interests of the
Partnership, PROVIDED that the General Partner agrees not to unreasonably
withhold its consent to making a section 754 election upon the request of any
partner in connection with a permitted transfer of such partner's interest
hereunder, and PROVIDED FURTHER that the General Partner shall not elect, and
shall not permit the Partnership to elect, to be treated as an association
taxable as a corporation for federal, state or local income tax purposes under
Treasury Regulations section 1.7701-3, or under any corresponding provision of
state law. Limited Partner hereby consents to any such election by the General
Partner permitted by the immediately preceding sentence.
ARTICLE V
LIABILITY; CONFIDENTIALITY;
INDEMNIFICATION; OUTSIDE BUSINESSES
5.1 LIABILITY OF PARTNERS. The Partners shall not have any liability for
the obligations or liabilities of the Partnership except to the extent provided
in the Act and other applicable law. A Partner shall not be personally liable
for any indebtedness, liability or obligation of the Partnership, except that
each Partner shall remain personally liable for the payment of its Capital
Contribution and as otherwise set forth in this Agreement, the Act and any other
applicable law. No Partner shall be obligated to restore by way of capital
contribution or otherwise any deficit in its Capital Account or the Capital
Account of any other Partner (if such deficits occur).
5.2 CONFIDENTIALITY. Each of the Partners shall, and shall direct those
of its directors, officers, Partners, employees, attorneys, accountants,
consultants and advisors who have access to the terms of this Agreement (the
"CONFIDENTIAL INFORMATION"), to keep confidential and not disclose any of the
Confidential Information without the express consent of the General Partner,
unless such disclosure is required by a taxing authority or financial reporting
requirement, or legal process or by an order, judgment or decree of a court or
other governmental authority of competent jurisdiction; PROVIDED, HOWEVER, that
such partner may disclose the terms of this Agreement to any proposed assignee,
transferee or participant of all or any part of its Interest who agrees for the
benefit of the General Partner to abide by the provisions of this Section 5.2.
The term "Confidential Information" does not include any information that (a) is
or becomes generally available to the public through no action, omission or
breach of the terms and conditions hereof by a partner or (b) is or becomes
available to a Partner on a nonconfidential basis from a source that to the best
of such Partner's knowledge is not prohibited from disclosing such information
to the partner by a contractual, legal, fiduciary or other confidentiality
obligation.
5.3 DUTIES AND LIABILITIES OF COVERED PERSONS.
(a) To the extent that, at law or in equity, any partner, any
Affiliate of a Partner, any shareholders, partners, partners, officers,
directors, employees, fiduciaries, representatives or agents of a Partner or
their respective Affiliates or any officer, employee or agent of the Partnership
(each a "COVERED PERSON") has duties (including fiduciary duties) and
liabilities
11
related thereto to the Partnership or to any other Covered Person, such Covered
Person shall not be liable to the Partnership or to any other Covered Person for
its good faith reliance on the provisions of this Agreement. The provisions of
this Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Covered Person.
(b) Unless otherwise expressly provided herein, (i) whenever a
conflict of interest exists or arises between Covered Persons, or (ii) whenever
this Agreement or any other agreement contemplated herein or therein provides
that a Covered Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Partnership or any Partner, the Covered Person shall
resolve such conflict of interest, taking such action or providing such terms,
considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
principles. Unless otherwise expressly provided herein, in the absence of bad
faith by the Covered Person, the resolution, action or term so made, taken or
provided by the Covered Person shall not constitute a breach of this Agreement
or any other agreement contemplated herein or of any duty or obligation of the
Covered Person at law or in equity or otherwise.
(c) Whenever in this Agreement a Covered Person is permitted or
required to make a decision (i) in its "DISCRETION" or under a grant of similar
authority or latitude, the Covered Person shall be entitled to consider only
such interests and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest of or
factors affecting the Partnership or any other Person, or (ii) in its "GOOD
FAITH" or under another express standard, the Covered Person shall act under
such express standard and shall not be subject to any other or different
standard imposed by this Agreement or other applicable law.
5.4 INDEMNIFICATION.
(a) The Partnership shall indemnify any Covered Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding brought by or against the Partnership or
otherwise, whether civil, criminal, administrative or investigative, including,
without limitation, an action by or in the right of the Partnership to procure a
judgment in its favor, by reason of the fact that such Covered Person is or was
a partner, officer, employee or agent of the Partnership, or that such Covered
Person is or was serving at the request of the Partnership as a partner,
director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against all expenses,
including attorneys' fees and disbursements, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such Covered Person in
connection with such action, suit or proceeding. Notwithstanding the foregoing,
no indemnification shall be provided to or on behalf of any Covered Person if a
judgment or other final adjudication adverse to such Covered Person establishes
that his or her acts (or the acts of its agents, employees, officers, directors
or Affiliates) were intentional misconduct or gross negligence.
12
(b) Any indemnification under subsection (a) of this Section 5.4
(unless ordered by a court) shall be made by the Partnership only as authorized
in the specific case upon a determination that the indemnification of the
Covered Person is proper under the circumstances because he or she has met the
applicable standard of conduct set forth in subsection (a) of this Section 5.4
(the "Indemnified Party"). Such determination shall be made by the General
Partner at the sole cost and expense of the Partnership. The Indemnified Party
shall (i) provide the Partnership with written notice of all actions, suits and
proceedings brought against it as set forth in subsection (a) of this Section
5.4, PROVIDED that the failure to deliver such notice shall not affect the
Partnership's indemnification obligations hereunder unless such failure has a
material adverse effect on the Partnership's defense of such action, suit or
proceeding, and (ii) cooperate with reasonable requests of the Partnership with
respect to all aspects of the actions, suits and proceedings brought against it.
In addition, the Indemnified Party shall not settle any action, suit or
proceeding brought against it without the prior written consent of the
Partnership (which shall not be unreasonably withheld or delayed). The
Partnership may hire the counsel of its choice to defend the Indemnified Party,
subject to the reasonable approval of the Indemnified Party.
(c) The Partnership will pay expenses incurred in defending any
action, suit or proceeding described in subsection (a) of this Section 5.4 in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking in writing by the Covered Person receiving such advance to
repay the amount advanced by the Partnership (together with interest at the rate
of 10% per annum) if it is determined under subsection (b) of this Section 5.4
that he or it is not entitled to indemnification hereunder.
(d) The Partnership may, in the discretion of the General Partner,
purchase and maintain insurance for itself and insurance on behalf of any
Covered Person against any liability asserted against him or her, whether or not
the Partnership would have the power by law to indemnify him or her against such
liability.
(e) The indemnification provided by this Section 5.4 shall not be
deemed exclusive of any other rights to indemnification to which those seeking
indemnification may be entitled under any agreement, determination of the
General Partner or otherwise. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 5.4
shall continue as to a Covered Person who has ceased to be a Partner (or other
person indemnified hereunder) and shall inure to the benefit of the successors,
executors, administrators, legatees and distributees of such person.
(f) The provisions of this Section 5.4 shall be a contract between the
Partnership, on the one hand, and each Covered Person who served in such
capacity at any time while this Section 5.4 is in effect, on the other hand,
pursuant to which the Partnership and each such Covered Person intend to be
legally bound. No repeal or modification of this Section 5.4 shall affect any
rights or obligations with respect to any state of facts then or theretofore
existing or thereafter arising or any proceeding theretofore or thereafter
brought or threatened based in whole or in part upon such state of facts.
13
5.5 OUTSIDE BUSINESSES. Except as otherwise provided in the definition of
Single Purpose Bankruptcy Remote Entity, any Partner or Affiliate thereof may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Partnership, and the Partnership and the Partners shall have no rights by
virtue of this Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Partnership, shall not be deemed wrongful
or improper.
ARTICLE VI
TAX MATTERS PARTNER
6.1 TAX MATTERS PARTNER. The General Partner shall cause to be prepared
and filed all federal, state and local tax returns of the Partnership. Unless
otherwise required by law, the General Partner shall be the tax matters partner
of the Partnership within the meaning of section 6231(a)(7) of the Code. Prompt
notice shall be given to the other Partners upon the receipt of advice that the
Internal Revenue Service or other taxing authority intends to examine any income
tax return or records or books of the Partnership. This provision shall survive
any termination of this Agreement.
ARTICLE VII
ADDITIONAL PARTNERS; TRANSFER; WITHDRAWAL, OPTION TO PURCHASE
7.1 ADDITIONAL PARTNERS. Except as set forth in this ARTICLE 7, the
Partnership shall not admit any new Partners to the Partnership without the
consent of the General Partner.
7.2 TRANSFER.
(a) The Limited Partner shall not, directly or indirectly, sell,
exchange, transfer, assign, pledge or otherwise dispose of (collectively,
"Transfer") all or any part of its Interest in the Partnership without the prior
written consent of the General Partner (which consent may be withheld in the
General Partner's sole discretion).
(b) The General Partner may Transfer all or any part of its Interest
in the Partnership, without the prior written consent of the Limited Partner.
(c) No Transfer of all or any part of the Interest of a Partner
permitted to be made under this Section 7.2 shall be binding on the Partnership
unless (i) the assignee shall execute and acknowledge an instrument, in form and
substance reasonably satisfactory to the remaining Partners, whereby it agrees
to assume and be bound by all of the covenants, terms and conditions of this
Agreement, as the same may have been amended, from and after the effective date
of such assignment, (ii) a duplicate original of such instrument duly executed
and acknowledged by the parties thereto, is delivered to the Partnership and
(iii) the assignee shall pay all reasonable expenses in connection with its
admission as a Partner.
14
7.3 WITHDRAWALS. Except for transfers permitted pursuant to Section 7.2
above, prior to the dissolution and winding up of the Partnership, no Partner
may withdraw from the Partnership. Withdrawals by any Partner of its Capital
Account or any portion thereof shall not be permitted.
7.4 OPTION TO PURCHASE. (a) At any time after the date hereof, but no
later than the date that is the two (2) year anniversary of the date hereof, the
General Partner may require the Limited Partner to sell the entire partnership
interest held by the Limited Partner to the General Partner for $247,111.90 (the
"Purchase Option"), by delivering a written notice (the "Option Notice") to the
Limited Partner indicating that the General Partner desires to exercise its
rights under this Section 7.4. The General Partner shall acquire the Limited
Partner's entire partnership interest by paying to the Limited Partner the
amount specified in the immediately preceding sentence.
(a) If Option is properly exercised as set forth above, the Limited
Partner shall sell and the General Partner shall buy the Limited Partner's
entire partnership interest, such interest to be transferred to General Partner
or General Partner's designee on the thirtieth (30th) day after the delivery of
the Notice (or the next Business Day thereafter if such day is not a Business
Day). At the closing, the purchase price specified above shall be paid by the
General Partner by official bank check or by bank wire transfer of immediately
available funds. All costs, expenses, taxes and other closing costs shall be
paid by the Limited Partner, PROVIDED, HOWEVER, that in the event the Option is
exercised, AND the closing occurs prior to the first anniversary of the date
hereof, the General Partner will be responsible for the Washington State real
estate excise tax, if any, with respect to such transfer of the Limited
Partner's interest. The terms of the purchase and sale shall be unconditional,
except that (I) the Limited Partner shall be deemed to represent and warrant
that its entire interest in the Partnership is owned by it free and clear of all
liens and encumbrances and is subject to no legal or equitable claims and (II)
the General Partner shall be deemed to have assumed all obligations and
liabilities relating to the purchased interest arising from transactions or
events first occurring after the date of such sale, and upon demand each such
Partner shall deliver to the other appropriate documentation evidencing the
sale, assignment, representation and assumption set forth herein. If the Limited
Partner shall fail to comply with its obligation to sell its Partnership
Interest after proper exercise of the Option, or if the General Partner shall
fail to comply with its obligation to purchase the Limited Partner's Partnership
Interest, such partner shall be deemed a Defaulting Partner hereunder and the
other Partner shall have, in addition to the rights and remedies set forth
herein, all rights and remedies at law or equity, PROVIDED, HOWEVER, that in the
event that the General Partner shall be deemed a Defaulting Partner hereunder,
notwithstanding anything herein to the contrary, the sole remedy of the Limited
Partner shall be specific performance of the obligations of the General Partner
hereunder.
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ARTICLE VIII
TERMINATION; DISSOLUTION; LIQUIDATION
8.1 TERMINATION OF THE PARTNERSHIP. Subject to the provisions of Section
8.2(a), in the event of the occurrence of a Dissolution Event (as defined
herein), the Partnership shall be terminated on the 90th day after the
occurrence of such event.
8.2 EVENTS OF DISSOLUTION. The Partnership shall be dissolved upon any of
the following (each a "DISSOLUTION EVENT"):
(a) December 31, 2099;
(b) the mutual agreement by each Member to terminate the Partnership;
(c) the death, insanity, bankruptcy, retirement, resignation,
expulsion, dissolution, disability or legal incapacity of the General Partner;
or
(d) the occurrence of any other event specified under the laws of the
State of Delaware as one effecting dissolution.
(e) Dissolution of the Partnership shall be effective on the day on
which the event occurs giving rise to the dissolution, but the Partnership shall
not terminate until the assets of the Partnership shall have been liquidated and
distributed as provided herein. Notwithstanding the dissolution of the
Partnership, prior to the termination of the Partnership the business of the
Partnership and the rights and obligations of the Partners, as such, shall
continue to be governed by this Agreement.
8.3 LIQUIDATION.
(a) Upon dissolution of the Partnership, the property and business of
the Partnership shall be liquidated within a reasonable period of time by the
General Partner. Subject to the requirements of applicable law and the further
provisions of this Section 8.3, and except to the extent cash is required in
order to pay or otherwise satisfy the claims of Partnership creditors, the
General Partner shall have absolute discretion in determining whether to sell or
otherwise dispose of Partnership assets or to distribute the same in kind.
(b) As soon as practicable after the effective date of dissolution of
the Partnership, whether by expiration of its full term or otherwise, but in any
event within one year after dissolution of the Partnership, after allocating all
items of income, gain, loss or deduction pursuant to Sections 4.5 and 4.6, the
Partnership's assets shall be applied and distributed in the following manner
and order of priority:
(i) first, the claims of all creditors of the Partnership
(including Partners), except to the extent not permitted by
(law) shall be paid and discharged, other than liabilities
for which reasonable provision for payment has been made;
and
16
(ii) thereafter, in accordance with Section 4.3(a).
(c) Notwithstanding any other provision of this Agreement, the amount
by which the Fair Value of any property to be distributed in kind to the
Partners (including property distributed in liquidation) exceeds or is less than
the tax basis of such property shall, to the extent not otherwise recognized by
the Partnership, be taken into account in computing income, gains and losses of
the Partnership for purposes of crediting or charging the Capital Accounts of,
and distributing proceeds to, the Partners, pursuant to this Agreement.
(d) When the General Partner has complied with the liquidation plan
described in this Section 8.3, the Partners shall execute, acknowledge and cause
to be filed an instrument evidencing the cancellation of the Certificate.
ARTICLE IX
MISCELLANEOUS
9.1 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of,
and shall be binding upon, the successors and permitted assigns of the Partners.
9.2 NO WAIVER. The failure of any partner to seek redress for violation,
or to insist on strict performance, of any covenant or condition of this
Agreement shall not prevent a subsequent act which would have constituted a
violation from having the effect of an original violation.
9.3 NOTICES. All notices and other communications hereunder shall be in
writing and shall be given by personal delivery, mailed by registered or
certified mail or air courier service, or sent by telex or telecopy, and
addressed: if to the Partnership, at its principal office and, if to a partner,
to such partner at its last known address as disclosed on the records of the
Partnership with copies to its attorneys as follows: notices to General
Partner's attorneys should be sent to Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.; notices to the
Limited Partner's attorneys should be sent to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: D. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
Notices shall be deemed to have been given as of the date delivered, telexed or
telecopied, or if mailed, the third day after mailing. The Partnership and any
partner may change its address(es) for notices by delivering or mailing as
aforesaid, a notice stating the change and setting forth the changed
address(es).
9.4 SEVERABILITY. In case any provision in this Agreement shall be deemed
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired hereby.
9.5 WAIVER. No provision of this Agreement may be amended or waived
without the written consent of all of the Partners.
17
9.6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
9.7 HEADINGS, ETC. The headings in, and table of contents of, this
Agreement are inserted for convenience of reference only and shall not affect
the interpretation of this Agreement.
9.8 NO RIGHT TO PARTITION. The Partners, on behalf of themselves and
their shareholders, Partners, Partners, successors and assigns, if any, hereby
specifically renounce, waive and forfeit all rights, whether arising under
contract or statute or by operation of law, to seek, bring or maintain any
action in any court of law or equity for partition of the Partnership or any
asset of the Partnership, or any interest which is considered to be Partnership
property, regardless of the manner in which title to such property may be held.
9.9 NO THIRD PARTY RIGHTS. This Agreement is intended solely for the
benefit of the parties hereto and is not intended to confer any benefits upon,
or create any rights in favor of, any Person other than the parties hereto.
9.10 APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without regard to the
conflict of laws principles thereof.
9.11 NO RELIANCE. Each Partner is a sophisticated buyer with respect to
its Interest in the Partnership and has adequate information concerning the
business to make an informed decision regarding its investment in the
Partnership and has independently and without reliance upon any other Partner
and based on such information as such Partner has deemed appropriate, made its
own analysis and decision to enter into this Agreement. Each Partner
acknowledges (i) that it has been provided an opportunity to obtain copies of
such documents and the information as it has deemed appropriate in making its
own evaluation of the Partnership's business and its decision to enter into this
Agreement and (ii) that information which may be pertinent to such Partner's
decision to invest in the Partnership is available to such Partner and can be
obtained from the public files. Each Partner shall continue to make its own
analyses and decisions with respect to its Interest without reliance upon any
other partner, subject to the other Partners fulfilling their express
obligations under this Agreement.
9.12 AMENDMENT. No change, modification or amendment of this Agreement
shall be valid or binding unless such change, modification or amendment shall be
in writing and duly executed by each of the Partners, PROVIDED, HOWEVER, that
the Partnership, so long as any amount of principal, interest and other amounts
due and owing under the Note remain outstanding, shall not amend the definition
of Single Purpose Bankruptcy Remote Entity, nor any of the provisions of Section
1.6, or Section 9.12 unless: (i) the Lender consents; and (ii) the Partnership
receives confirmation from the applicable rating agencies that such amendment
will not result in a qualification, withdrawal or downgrade of any securities
rating.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PARTNERS:
GENERAL PARTNER: VANCOUVER MALL LLC
By: Westfield America Limited
Partnership, its sole and
managing member
By: Westfield America, Inc., its general
partner
/s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Secretary
By: VANCOUVER ASSOCIATES, a
California limited partnership
By: The ▇▇▇▇▇▇ Family Trust
Created by Declaration of Trust
Dated November 17, 1993, as
Amended, general partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: The ▇▇▇▇▇▇▇ Family Trust Dated
April 28, 1987, as Amended,
General partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
STATE OF ______________)
) ss.
COUNTY OF _____________)
On __________, ____, before me,
________________________________________, Notary Public, personally appeared
__________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s)_______ subscribed to
the within instrument and acknowledged to me that _____ executed the same in
_____ authorized capacity, and that by _____ signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
____________________
Notary Public
My commission expires ________,
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On October 4, 2000, before me, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Notary Public, personally
appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇▇, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacity, and that by their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
My commission expires August 19, 2003
EXHIBIT A
CERTIFICATE OF FORMATION
B-1
State of Delaware
Office of the Secretary of State
-------------------------
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY "VANCOUVER MALL II LIMITED PARTNERSHIP" IS DULY FORMED UNDER THE LAWS OF
THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL EXISTENCE SO FAR
AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE SECOND DAY OF OCTOBER, A.D. 2000.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL TAXES HAVE NOT BEEN
ASSESSED TO DATE.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary of State
DATE: 10-02-00
State of Delaware
Office of the Secretary of State
-------------------------
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF LIMITED
PARTNERSHIP OF "VANCOUVER MALL II LIMITED PARTNERSHIP", FILED IN THIS OFFICE ON
THE TWENTY-NINTH DAY OF SEPTEMBER, A.D. 2000, AT 1 O'CLOCK P.M.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary of State
DATE: 10-02-00
CERTIFICATE OF LIMITED PARTNERSHIP
OF
VANCOUVER MALL II LIMITED PARTNERSHIP
This Certificate of Limited Partnership of VANCOUVER MALL II LIMITED
PARTNERSHIP (the "Partnership"), dated as of September 29, 2000, is being duly
executed ans filed by VANCOUVER MALL LLC, a Delaware limited liability company,
as general partner, to form a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (6 DEL.C. Section 17-101 ET SEQ.).
1. NAME. The name of the Partnership is VANCOUVER MALL II LIMITED
PARTNERSHIP.
2. REGISTERED OFFICE AND AGENT. The Partnership shall maintain an office at
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, which shall be deemed its registered office, and The Corporation
Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is hereby appointed its registered agent for
service of process in Delaware.
3. GENERAL PARTNER. The names and a business, residence or mailing address
of each general partner of the Partnership is as follows:
VANCOUVER MALL LLC
c/o Westfield Corporation, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
VANCOUVER MALL LLC, a
Delaware limited liability company
By: Westfield America Limited Partnership, a
Delaware limited partnership, its sole member
By: Westfield America, Inc. a Missouri
corporation, its sole general partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Secretary
SCHEDULE 1
NAME OF MEMBER INTEREST MAILING ADDRESS
Vancouver Mall LLC 99.5% c/o Westfield Corporation, Inc.
(as General Partner) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vancouver Associates 0.5% c/o Newman Properties
(as Limited Partner) ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇