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EXHIBIT 10.7
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
27, 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 (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, upon the
closing of the transactions contemplated pursuant to
that certain Contribution and Sale Agreement dated as of October
18, 2002, among
the Partnership, JSG, LLC, a Delaware limited liability company
(the "New
Limited Partner"), and the other parties thereto (the "Purchase
Agreement"), the
New Limited Partner is to receive Series C Preferred Units (as
defined below);
WHEREAS, the
parties hereto, being the sole general partner of the
Partnership, the holders of a Majority-in-Interest of the Common
Units and the
New Limited Partner, desire to amend the Second Restated
Partnership Agreement
to effect the creation and issuance of the Series C Preferred Units
and to
reflect certain other 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
(including without limitation in attached Schedule A) shall have
the definitions
assigned to such terms in the Second Restated Partnership
Agreement, as amended
hereby.
2. ESTABLISHMENT
AND ISSUANCE OF SERIES C PREFERRED UNITS. A new series
of Preferred Units designated as the "7% Series C Cumulative
Convertible
Preferred Units" (the "Series C Preferred Units") is hereby
established and
shall have such rights, preferences, limitations and qualifications
as are
described on Schedule A, attached hereto and by this reference made
a part
hereof (in addition to the rights, preferences, limitations and
qualifications
contained in the Second Restated Partnership Agreement to the
extent
applicable). Pursuant to the Purchase Agreement, the Partnership
hereby issues
to the New Limited Partner the number of
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Series C Preferred Units set forth opposite its name on Exhibit A,
attached
hereto and by this reference made a part hereof. The Capital
Contribution made
by the New Limited Partner shall be deemed to be $50 per Series C
Preferred
Unit. The New Limited Partner is hereby admitted as a Limited
Partner in respect
of the Series C Preferred Units issued to it, and the New Limited
Partner hereby
agrees to be bound by the provisions of the Second Restated
Partnership
Agreement, as the same is amended hereby and as the same may be
amended from
time to time, with respect to such Series C Preferred Units
(including without
limitation the provisions of Sections 8.2, 8.4, 9.1, 9.2 and 9.3
thereof).
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. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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/ Bernard
Freibaum
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Bernard
Freibaum
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 Martin
Investment Trust G, a partner
By: /s/
Marshall E.
Eisenberg
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Marshall E. Eisenberg, President
NEW LIMITED PARTNER:
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JSG, LLC, a Delaware limited
liability company
By: /s/ Daniel W.
Donahue
--------------------------------------
Daniel W. Donahue, Managing
Member
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EXHIBIT A
PARTNERS
SEE ATTACHED
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SCHEDULE
A
1. DEFINITIONS. As
used in this Schedule, the following terms shall
have the meanings set forth below, unless the context otherwise
requires:
"Common Unit
Value" shall mean, with respect to any trading day, the
trading price of a share of Common Stock (calculated based on the
average of the
intra-day high and low and subject to adjustment in the event that
the exchange
ratio between Common Units and shares of Common Stock is not
one-to-one or other
adjustments if the kind or amount of securities into which Common
Units can be
converted or exchanged (as provided in the Redemption Rights
Agreement (Common
Units), dated the date hereof) changes after the date hereof).
"Distribution
Payment Date" shall mean, with respect to any
Distribution Period, the payment date for the distribution declared
by the
General Partner on its Common Units for such Distribution Period
or, if no such
distribution payment date is established, the last business day of
the first
full month following such Distribution Period.
"Distribution
Period" shall mean the quarterly period that is then the
distribution period with respect to the Common Units or, if no such
distribution
period is established, the calendar quarter shall be the
Distribution Period;
provided that (a) the initial Distribution Period shall commence on
date hereof
and end on and include December 31, 2002 and (b) the Distribution
Period in
which the final liquidation payment is made pursuant to Section 7.2
of the
Second Restated Partnership Agreement shall commence on the first
day following
the immediately preceding Distribution Period and end on the date
of such final
liquidation payment.
"Fair Market
Value" shall mean the average of the daily Closing Price
during the ten consecutive Trading Days ending on the earlier of
(i) the
business day immediately preceding the day in question with respect
to the
issuance or distribution requiring such computation (subject to
appropriate
adjustment in the event that the exchange ratio between Common
Units and shares
of Common Stock is not one-to-one) and (ii) the day before the "ex"
date with
respect to the issuance or distribution requiring such computation.
The term
"`ex' date," when used with respect to any issuance or
distribution, means the
first day on which shares of Common Stock trade regular way,
without the right
to receive such issuance or distribution, on the exchange or in the
market, as
the case may be, used to determine that day's Closing Price.
"Relevant
Distribution Periods" shall mean (i) each of the three (3)
consecutive Distribution Periods the last of which ends during the
90-day period
referred to in the last paragraph of Section 7(b) and (ii) the next
immediately
following Distribution Period after the third Distribution Period
described in
clause (i) above.
"Series H
Preferred Stock Designation" shall mean that certain
Certificate of Designations, Preferences and Rights of the Series H
Preferred
Stock.
"Series H
Preferred Stock" shall mean the 7% Cumulative Convertible
Preferred Stock, Series H, of the General Partner.
"Twelfth
Anniversary Date" shall mean the twelfth anniversary of the
date hereof.
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2. DESIGNATION AND
NUMBER; ETC. The Series C Preferred Units have been
established and shall have such rights, preferences, limitations
and
qualifications as are described herein (in addition to the rights,
preferences,
limitations and qualifications contained in the Second Restated
Partnership
Agreement to the extent applicable). The authorized number of
Series C Preferred
Units shall be 822,626.0284. Notwithstanding anything to the
contrary contained
herein, in the event of a conflict between the provisions of this
Schedule A and
any other provision of the Second Restated Partnership Agreement,
the provisions
of this Schedule A shall control. The holders of Series C Preferred
Units are
entitled to certain redemption rights pursuant to that certain
Redemption Rights
Agreement (Series C Preferred Units) and that certain Redemption
Rights
Agreement (Common Units), each dated the date hereof and each among
the
Partnership, the General Partner and the New Limited Partner, which
redemption
rights may be exercised only on or after the first anniversary of
the date
hereof.
3. RANK. The
Series C Preferred Units shall, with respect to the
payment of distributions and the distribution of amounts upon
voluntary or
involuntary liquidation, dissolution or winding-up of the
Partnership, rank as
follows:
(a) senior to all
classes or series of Common Units and to all Units
the terms of which provide that such Units shall rank junior to the
Series C
Preferred Units;
(b) on a parity
with the Series A Preferred Units, the Series B
Preferred Units and each other series of Preferred Units issued by
the
Partnership which does not provide by its express terms that it
ranks junior or
senior in right of payment to the Series C Preferred Units with
respect to
payment of distributions or amounts upon liquidation, dissolution
or winding-up;
and
(c) junior to any
class or series of Preferred Units issued by the
Partnership that ranks senior to the Series C Preferred Units and
has been
approved in accordance with Section 4 of this Schedule A.
4. VOTING.
(a) Holders of
Series C Preferred Units shall not have any voting
rights, except as required by applicable law and as described below
in this
Section 4.
(b) So long as any
Series C Preferred Units remain outstanding, the
Partnership shall not, without the affirmative vote or consent of
the holders of
at least a majority of the Series C Preferred Units outstanding at
the time,
given in person or by proxy, either in writing or at a meeting
(such series
voting separately as a class), (i) authorize, create, issue or
increase the
authorized or issued amount of, any class or series of partnership
interests in
the Partnership ranking senior to the Series C Preferred Units with
respect to
the payment of distributions or the distribution of assets upon
voluntary or
involuntary liquidation, dissolution or winding-up of the
Partnership or
reclassify any Common Units into such partnership interests, or
create,
authorize or issue any obligation or security convertible or
exchangeable into
or evidencing the right to purchase any such partnership interests;
or (ii)
amend, alter or repeal the provisions of the Partnership Agreement,
whether by
merger or consolidation or otherwise (an "Event"), so as to negate
the
provisions of clause (i) or (ii) of this paragraph or so as to
materially and
adversely affect any special right, preference, privilege or voting
power of the
Series C Preferred Units or
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the holders thereof. Notwithstanding anything to the contrary
contained herein,
each of the following shall be deemed not to (i) materially and
adversely affect
any such special right, preference, privilege or voting power or
(ii) otherwise
require the vote or consent of the holders of the Series C
Preferred Units: (X)
the occurrence of any merger, consolidation, entity conversion,
unit exchange,
recapitalization of the Common Units or other business combination
or
reorganization, so long as either (1) the Partnership is the
surviving entity
and the Series C Preferred Units remain outstanding with the terms
thereof
materially unchanged or (2) if the Partnership is not the surviving
entity in
such transaction, interests in an entity having substantially the
same rights
and terms with respect to rights to distributions, voting,
redemption and
conversion as the Series C Preferred Units are exchanged or
substituted for the
Series C Preferred Units without any income, gain, or loss expected
to be
recognized by the holder upon the exchange or substitution for
federal income
tax purposes (and with the terms of the Common Units or such other
securities
for which the Series C Preferred Units (or the substitute or
exchanged security
therefor) are convertible or redeemable materially the same with
respect to
rights to distributions, voting, and redemption), (Y) any increase
in the amount
of the authorized Preferred Units or Common Units or the creation
or issuance of
any other series or class of Preferred Units or Common Units or any
increase in
the amount of Common Units or any other series of Preferred Units,
in each case
so long as such Units rank on a parity with or junior to the Series
C Preferred
Units with respect to payment of distributions and the distribution
of assets
upon voluntary or involuntary liquidation, dissolution or
winding-up of the
Partnership and (Z) the dissolution, liquidation and/or winding up
of the
Partnership.
The foregoing
voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise
be required
shall be effected, all outstanding Series C Preferred Units shall
have been
converted or redeemed.
For purposes of
the foregoing provisions of this Section 4, each Series
C Preferred Unit shall have one (1) vote.
In addition, the
General Partner shall not take any of the actions that
are described in Section IV(b) of the Series H Preferred Stock
Designation and
that require the consent of the holders of the issued and
outstanding shares of
Series H Preferred Stock without the affirmative vote or consent
(given in
person or by proxy, either in writing or at a meeting) of holders
of issued and
outstanding Series C Preferred Units and shares of Series H
Preferred Stock
having a base liquidation preference of more than fifty percent
(50%) of the
aggregate base liquidation preferences of the issued and
outstanding Series C
Preferred Units and shares of Series H Preferred Stock (with such
holders voting
together as a single class).
Except as
otherwise required by applicable law or as set forth herein,
the Series C Preferred Units shall not have any voting rights or
powers and the
consent of the holders thereof shall not be required for the taking
of any
action.
5.
DISTRIBUTIONS.
(a) With respect
to each Distribution Period and subject to the rights
of the holders of Preferred Units ranking senior to or on parity
with the Series
C Preferred Units, the holders of Series C Preferred Units shall be
entitled to
receive, when, as and if declared by the General
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Partner, out of assets of the Partnership legally available for the
payment of
distributions, quarterly cumulative cash distributions in an amount
per Series C
Preferred Unit equal to the greater of (i) $0.8750 (the "Base
Quarterly
Distribution") and (ii) the amount of the regular quarterly cash
distribution
for such Distribution Period upon the number of Common Units (or
portion
thereof) into which such Series C Preferred Unit is then
convertible in
accordance with Section 7 of this Schedule A. Notwithstanding
anything to the
contrary contained herein, the amount of distributions described
under each of
clause (i) and (ii) of this paragraph for the initial Distribution
Period, or
any other period shorter than a full Distribution Period, shall be
prorated and
computed on the basis of twelve 30-day months and a 360-day year.
Such
distributions shall, with respect to each Series C Preferred Unit,
accrue from
its issue date, whether or not in, or with respect to, any
Distribution Period
or Periods (A) the distributions described above are declared, (B)
the
Partnership is contractually prohibited from paying such
distributions or (C)
there shall be assets of the Partnership legally available for the
payment of
such distributions. The distributions upon the Series C Preferred
Units for each
Distribution Period shall, if and to the extent declared or
authorized by the
General Partner on behalf of the Partnership, be paid in arrears
(without
interest or other amount) on the Distribution Payment Date with
respect thereto,
and, if not paid on such date, shall accumulate, whether or not in,
or with
respect to, any Distribution Period or Periods (X) the
distributions are
declared, (Y) the Partnership is contractually prohibited from
paying such
distributions or (Z) there shall be assets of the Partnership
legally available
for the payment of such distributions. The record date for
distributions upon
the Series C Preferred Units for any Distribution Period shall be
the same as
the record date for the distributions upon the Common Units for
such
Distribution Period (or, if no such record date is set for the
Common Units, the
fifteenth day of the calendar month in which the applicable
Distribution Payment
Date falls if prior to such Distribution Payment Date; otherwise,
the fifteenth
day of the immediately preceding calendar month). Accumulated and
unpaid
distributions for any past Distribution Periods may be declared and
paid at any
time, without reference to any Distribution Payment Date, to
holders of record
on such date, not exceeding 45 days preceding the payment date
thereof, as may
be fixed by the General Partner. Any distribution payment made upon
the Series C
Preferred Units shall first be credited against the earliest
accrued but unpaid
distributions due with respect to such Units which remains payable.
No interest,
or sum of money in lieu of interest, shall be owing or payable in
respect of any
distribution payment or payments on the Series C Preferred Units,
whether or not
in arrears.
(b) No
distribution on the Series C Preferred Units shall be declared
by the General Partner or paid or set apart for payment by the
Partnership at
such time as the terms and provisions of any bona fide agreement of
the
Partnership, including any agreement relating to bona fide
indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides
that such declaration, payment or setting apart for payment would
constitute a
breach thereof, or a default thereunder, or if such declaration or
payment shall
be restricted or prohibited by law (and such failure to pay
distributions on the
Series C Preferred Units shall prohibit other distributions by the
Partnership
as described in Sections 5(c) or (d) of this Schedule A).
Notwithstanding the
foregoing, distributions on the Series C Preferred Units shall
accumulate
whether or not any of the foregoing restrictions exist.
(c) Except as
provided in Section 5(d) of this Schedule A, so long as
any Series C Preferred Units are outstanding, (i) no distributions
(other than
in Common Units or other Units ranking junior to the Series C
Preferred Units as
to payment of distributions and amounts upon
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liquidation, dissolution or winding-up of the Partnership) shall be
declared or
paid or set apart for payment upon the Common Units or any other
class or series
of partnership interests in the Partnership or Units ranking, as to
payment of
distributions or amounts distributable upon liquidation,
dissolution or
winding-up of the Partnership, on a parity with or junior to the
Series C
Preferred Units, for any period and (ii) no Common Units or other
Units ranking
junior to or on a parity with the Series C Preferred Units as to
payment of
distributions or amounts upon liquidation, dissolution or
winding-up of the
Partnership shall be redeemed, purchased or otherwise acquired for
any
consideration (or any monies be paid to or made available for a
sinking fund for
the redemption of any such Units) by the Partnership (except by
conversion into
