EXHIBIT - 10.25
AMENDMENT TO OPERATING AGREEMENT
OF GGP/HOMART II L.L.C.
Amendment to Operating Agreement, dated February 8, 2008 (the "Amendment"),
among GGP Limited Partnership, a Delaware limited partnership ("GGPLP"), The
Comptroller of the State of New York as Trustee of the Common Retirement Fund, a
fund established pursuant to NY Retirement and Social Security Law Section 422,
in the custody of the Comptroller of the State of New York ("CRF" and, together
with GGPLP, the "Members"), and GGP/Homart II L.L.C., a Delaware limited
liability company (the "Company").
RECITALS
WHEREAS, the Members are all of the members of the Company;
WHEREAS, the Company and the Members entered into that certain Operating
Agreement dated November 10, 1999, as amended (the "Existing Operating
Agreement"), relating to, among other things, the management of the Company and
the transfer of units of membership interest therein; and
WHEREAS, the Company and the Members desire to amend the Existing Operating
Agreement as set forth herein to opt-in under Article 8 of the Uniform
Commercial Code and provide for the certification of units of membership
interest in the Company.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Definitions. Capitalized terms used herein without definition shall have
the meanings set forth in the Existing Operating Agreement.
2. Amendment to Definition of "Units". The definition of "Units" contained
in Section 1.1 of the Existing Operating Agreement is hereby deleted in its
entirety and the following is hereby inserted in lieu thereof:
"Units" shall mean units of membership interest in the Company,
including (except as otherwise expressly provided herein) the rights to
allocations, distributions, management, approval and participation provided
herein. Each unit of membership interest in the Company shall constitute a
"security" within the meaning of, and governed by, (a) Article 8 of the
Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in
effect from time to time in the State of Delaware, and (b) Article 8 of the
Uniform Commercial Code of any other applicable jurisdiction that now or
hereafter substantially includes the 1994 revisions to Article 8 thereof as
adopted by the American Law Institute and the
National Conference of Commissioners on Uniform State Laws and approved by
the American Bar Association on February 14, 1995.
3. Amendment to Section 2.5 of Existing Operating Agreement. Section 2.5 of
the Existing Operating Agreement is hereby deleted in its entirety and the
following is hereby inserted in lieu thereof:
2.5 Classes of Units; Issuance of Certificates.
(a) There shall be, initially, two classes of Units, consisting
of Class A Units ("Class A Units") and Class B Units (the "Class B
Units"), which shall have the rights and be subject to the limitations
contained herein.
(b) The Company may issue one or more certificates representing
the Units of any Member and, in such event, the following shall apply
with respect to each such certificate and the Units represented
thereby:
(i) Such certificate shall certify the number and class of
Units owned by such Member represented by such certificate and be
signed by, or in the name of the Company by, the President or a
Vice President, and countersigned by the Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary of the Company.
(ii) Such certificate shall bear a legend in substantially
the following form:
"THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING
TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE UNITS OF
MEMBERSHIP INTEREST REPRESENTED HEREBY ARE SET FORTH IN, AND
THIS CERTIFICATE AND THE UNITS OF MEMBERSHIP INTEREST
REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE
SUBJECT TO THE TERMS AND PROVISIONS OF, THE OPERATING
AGREEMENT OF THE COMPANY, DATED AS OF NOVEMBER 10, 1999, AS
AMENDED AND/OR RESTATED FROM TIME TO TIME (THE "AGREEMENT").
EACH UNIT OF MEMBERSHIP INTEREST IN THE COMPANY REPRESENTED
HEREBY SHALL CONSTITUTE A "SECURITY" WITHIN THE MEANING OF,
AND GOVERNED BY, (A) ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE (INCLUDING SECTION 8-102(a)(15) THEREOF) AS IN EFFECT
FROM TIME TO TIME IN THE STATE OF DELAWARE, AND (B) ARTICLE
8 OF THE UNIFORM COMMERCIAL CODE OF ANY OTHER
2
APPLICABLE JURISDICTION THAT NOW OR HEREAFTER SUBSTANTIALLY
INCLUDES THE 1994 REVISIONS TO ARTICLE 8 THEREOF AS ADOPTED
BY THE AMERICAN LAW INSTITUTE AND THE NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS AND APPROVED BY THE
AMERICAN BAR ASSOCIATION ON FEBRUARY 14, 1995. THE UNITS OF
MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED IN THE ABSENCE OF REGISTRATION THEREUNDER OR AN
EXEMPTION THEREFROM."
(iii) The Units represented by such certificate may only be
transferred upon surrender of such certificate duly endorsed or
accompanied by proper evidence of succession or assignment. Upon
surrender to the Company of such certificate duly endorsed or
accompanied by proper evidence of succession or assignment, it
shall be the duty of the Company to issue a new certificate to
the Person entitled thereto, cancel the old certificate and
record the transaction upon its books, subject, however, to any
restrictions or limitations on the transfer thereof which may be
set forth in other sections of this Agreement or which may be
imposed by law or by any other agreement to which the holder of
such Units is subject. The Company shall maintain books for the
purpose of registering the transfer of Units.
(iv) In the event of loss, theft, mutilation or destruction
of such certificate, a duplicate certificate shall be issued upon
such terms as the Company shall reasonably prescribe.
4. Addition of New Section 8.13 to Existing Operating Agreement. A new
Section 8.13 is hereby inserted into the Existing Operating Agreement as
follows:
8.13. Pledge of Interests to CRF. Notwithstanding anything to the
contrary contained in this Agreement, the restrictions upon Transfer set
forth in this Agreement shall not apply to:
(i) the pledge by GGPLP of its membership interests in the
Company (the "Pledged Collateral") to CRF and its successors and
assigns to the extent that such Pledged Collateral is included in the
Collateral (under and as defined in the Pledge and Security Agreement,
dated as of February 8, 2008, by and among CRF and GGPLP (as amended,
restated, supplemented, or otherwise modified from time to time, the
"Pledge Agreement")) (such pledge and the related delivery of the
certificate representing GGPLP's Units to CRF, duly endorsed and/or
assigned, shall
3
not constitute a Transfer for any purpose and GGPLP shall not cease to
own such Units as the result of such pledge and/or delivery); or
(ii) any foreclosure upon or subsequent disposition of such
Collateral by CRF in accordance with the terms and conditions of the
Pledge Agreement (each such foreclosure or subsequent disposition, a
"Collateral Transfer").
In connection with a Collateral Transfer as to any of GGPLP's Units, the
assignee shall be admitted as a Member and shall have all of the rights and
powers that GGPLP previously had with respect to such Units without any
further consent of the Company or any Member. Upon such Collateral Transfer
as to all of GGPLP's Units, GGPLP shall cease to be a Member and shall have
no further rights or obligations under this Agreement.
5. Counterparts. This Amendment may be executed in counterparts, each of
which shall constitute an original and all of which together shall constitute
the same agreement.
6. Captions. The article and section headings appearing in this Amendment
are for convenience of reference only and are not intended, to any extent and
for any purpose, to limit or define the text of any section or any subsection
hereof.
7. Full Force and Effect; Etc. Except to the extent waived or modified
herein, this Amendment does not constitute a waiver or modification of any
provision of the Existing Operating Agreement. Except as amended hereby, the
Existing Operating Agreement shall continue in full force and effect in
accordance with the provisions thereof on the date hereof. Any references in the
Existing Operating Agreement or any other document to the Existing Operating
Agreement (including by use of the terms "herein," "hereof," "hereinafter,"
"hereto" and words of similar import), shall, unless the context otherwise
requires, mean the Existing Operating Agreement, as amended by this Amendment.
Notwithstanding anything to the contrary contained in the Existing Operating
Agreement, the execution and performance of this Amendment by the General Growth
Officers on behalf of the Company shall be deemed to have been approved by the
Board (to the extent any such approval may be required) and shall not require
separate approval by the Board.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment on
the date first written above.
GGP LIMITED PARTNERSHIP,
a Delaware limited partnership
By: General Growth Properties, Inc.,
a Delaware corporation, its general
partner
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
THE COMPTROLLER OF THE STATE OF NEW YORK
AS TRUSTEE OF THE COMMON RETIREMENT
FUND, a fund established pursuant to NY
Retirement and Social Security Law
Section 422, in the custody of the
Comptroller of the State of New York
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Deputy Comptroller
GGP/HOMART II L.L.C., a Delaware limited
liability company
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
5
