EXHIBIT 10.3
AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GGP LIMITED PARTNERSHIP
THIS AMENDMENT (the "Amendment") is made and entered into on November
12, 2004, 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 of GGP Limited Partnership dated
as of April 1, 1998, as amended (the "Second Restated Partnership Agreement"),
and the Delaware Revised Uniform Limited Partnership Act;
WHEREAS, General Growth Properties, Inc., a Delaware corporation, is
the general partner of the Partnership (the "General Partner");
WHEREAS, the Partnership and the General Partner have entered into that
certain Contribution Agreement dated the date hereof, pursuant to which the
General Partner has agreed to contribute certain property to the Partnership and
the Partnership has agreed to issue additional common units of partnership
interest to the General Partner and assume certain liabilities of the General
Partner (the "Assumed Liabilities"), including certain liabilities in respect of
loans owing by the General Partner (the "Loans"); and
WHEREAS, the parties hereto, being the sole general partner of the
Partnership and the holders of a Majority-in-Interest of the Common Units,
desire to amend the Second Restated Partnership Agreement to (a) reflect such
issuance and certain other prior transfers and issuances of partnership units
and (b) set forth certain other understandings.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto 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
Partnership Agreement, as amended.
2. ISSUANCE OF ADDITIONAL UNITS; ETC. Pursuant to the Contribution
Agreement, the Partnership hereby (a) issues to the General Partner additional
Common Units and (b) agrees that (i) upon issuance by the General Partner of
shares of its common stock pursuant to the CSA (as defined in the Contribution
Agreement), the Partnership shall issue to the General Partner an equal number
of Common Units and (ii) upon issuance by the General Partner 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 Second
Restated 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.
3. NEW EXHIBIT A. Exhibit A to the Second Restated Partnership
Agreement, identifying the Partners, the number and class or series of Units
owned by them and their respective Percentage Interests, if any, is hereby
deleted in its entirety and the Exhibit A in the form attached hereto is hereby
inserted in its place and stead.
4. 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.
5. OTHER PROVISIONS UNAFFECTED. Except as expressly amended hereby, the
Second Restated Partnership Agreement shall remain in full force and effect in
accordance with its terms.
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2
IN WITNESS WHEREOF, the undersigned have executed this Amendment on the
day and year first above written.
GENERAL PARTNER:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Xxxxxxx Xxxxxxxx, Executive Vice President
LIMITED PARTNERS:
M.B. CAPITAL PARTNERS III, a South
Dakota general partnership
By: GENERAL TRUST COMPANY, not
individually but solely as Trustee
of Xxxxxx Investment Trust G, a partner
By: /s/ E. Xxxxxxx Xxxxxxx
------------------------------------------
E. Xxxxxxx Xxxxxxx, Vice-President
