EXHIBIT 10.3
THIRD AMENDMENT
TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GGP LIMITED PARTNERSHIP
THIS THIRD AMENDMENT (the "Third Amendment") is made and entered into
on the 15th day of February, 2002, 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 by that certain First Amendment thereto dated as
of June 10, 1998, and that certain Second Amendment thereto dated as of June 29,
1998 (such Second Amended and Restated Agreement of Limited Partnership, as so
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"); 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 (as
defined in the Second Restated Partnership Agreement) desire to amend the Second
Restated Partnership Agreement to reflect certain understandings among them as
set forth herein.
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 hereby.
2. ADDITIONAL DEFINITIONS. Section 1.1 of the Second Restated
Partnership Agreement is hereby amended by inserting the following new
definitions:
"Preferred Units" shall mean the Series A 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.
"Stock Plans" shall mean the Incentive Stock Plan and the
other option, stock purchase and/or dividend reinvestment plans of the
General Partner or the Partnership that are in effect from time to
time.
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3. AMENDED DEFINITIONS.
(a) The definition of "Common Units" set forth in Section 1.1 of
the Second Restated Partnership Agreement is hereby deleted in its
entirety and the following is hereby inserted in its place and stead:
"'Common Units' shall mean all Units other than Preferred Units."
(b) The definition of "Percentage Interest" set forth in Section
1.1 of the Second Restated Partnership Agreement is hereby deleted in
its entirety and the following is hereby inserted in its place and
stead:
"'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."
4. ADDITIONAL FUNDS. Section 4.3(b) of the Second Restated Partnership
Agreement is hereby deleted in its entirety and the following is hereby inserted
in its place and stead:
"(b) Effective on each Adjustment Date and without the consent
of any other Partner, the Partnership shall issue to the General
Partner (i) with respect to Contributed Funds relating to an issuance
by the General Partner 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 General Partner in connection with obtaining such
Contributed Funds, and (y) the Conversion Factor, and (ii) with respect
to Contributed Funds relating to an issuance by the General Partner of
Series A Preferred Shares, an equal number of Series A Preferred Units.
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."
5. STOCK PLANS. Section 4.4 of the Second Restated Partnership
Agreement is hereby deleted in its entirety and the following is hereby inserted
in its place and stead:
"4.4 STOCK PLANS. If at any time or from time to time options
granted in connection with the General Partner's Stock Incentive Plan
or any other Stock Plan 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 General Partner shall, as soon as practicable
after such exercise or other issuance, contribute to the
capital of the Partnership an amount equal to the exercise
price or other purchase price paid to the General Partner by
the exercising or purchasing party in connection with such
exercise or issuance; and
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(b) the Partnership shall issue to the General
Partner, 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 General
Partner in connection with such exercise or purchase,
multiplied by (ii) the Conversion Factor."
6. DISTRIBUTIONS WITH RESPECT TO COMMON UNITS. Section 5.2(a) of the
Second Restated Partnership Agreement is hereby deleted in its entirety and the
following is hereby inserted in its place and stead: -
"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 General Partner 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 General Partner."
7. DISTRIBUTIONS WITH RESPECT TO SERIES A PREFERRED UNITS. Section
5.9(c) of the Second Restated Partnership Agreement is hereby deleted in its
entirety and the following is hereby inserted in its place and stead:
"(c) If the Partnership has not authorized and paid full
cumulative distributions with respect to the Series A Preferred Units
for all past distribution periods and the then current distribution
period, or has not authorized and set apart a sum sufficient for the
payment thereof, then the Partnership shall not authorize, pay or set
aside for payment any distributions with respect to the Common Units or
any other series of Preferred Units (other than distributions made in
the form of Common Units or Preferred Units, as the case may be), nor
shall the Partnership redeem, purchase or otherwise acquire any Common
Units or Preferred Units of any other series (or set apart any monies
as a sinking fund for such purpose) for any consideration other than
Common Units or Preferred Units, as the case may be (including without
limitation in connection with the exercise of Rights)."
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8. POWERS AND DUTIES OF GENERAL PARTNER. Section 6.2 of the Second
Restated Partnership Agreement is hereby amended by inserting the phrase "but
without limiting the foregoing grant of power, authority and discretion" after
the word "hereof" and before the comma in the twelfth line thereof.
9. MAJOR DECISIONS. Section 6.3(a) of the Second Restated Partnership
Agreement is hereby amended by inserting the phrase "and other than as provided
in other sections hereof" after the word "hereof" and before the period in the
last line of such section.
10. DISTRIBUTIONS ON DISSOLUTION. Section 7.2(d) of the Second Restated
Partnership Agreement is hereby deleted in its entirety and the following is
hereby inserted in its place and stead:
(a) Payment to the holders of Preferred Units in accordance with
the terms of thereof; and
(b) To the Partners holding Common Units in accordance with their
respective Percentage Interests."
11. LIQUIDATION PREFERENCE OF SERIES A PREFERRED UNITS. The phrase "or
other series of Preferred Units" is hereby added after the word "Units" and
before the period in the last line of Section 7.8(a) of the Second Restated
Partnership Agreement.
12. AMENDMENTS. The second sentence of Section 13.7 of the Second
Restated Partnership Agreement is hereby deleted in its entirety and the
following is hereby inserted in its place and stead:
"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."
13. NEW EXHIBIT A. Exhibit A to the Second Restated Partnership
Agreement, identifying the Partners, the number 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.
14. 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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IN WITNESS WHEREOF, the undersigned have executed this Third Amendment
on the day and year first above written.
GENERAL PARTNER:
---------------
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Its: Executive Vice President/Chief Financial Officer
LIMITED PARTNERS:
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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/ Xxxxxxxx X. Xxxxxxxxx
-------------------------
Its: President
