Exhibit 10.1
ELEVENTH AMENDMENT TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
THE MACERICH PARTNERSHIP, L.P.
THIS ELEVENTH AMENDMENT (the
“Amendment” ) TO THE AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT DATED AS OF MARCH 16, 1994, AMENDED
AS OF AUGUST 14, 1995, FURTHER AMENDED AS OF JUNE 27, 1997, FURTHER
AMENDED AS OF NOVEMBER 16, 1997, FURTHER AMENDED AS OF FEBRUARY 25,
1998, FURTHER AMENDED AS OF FEBRUARY 26, 1998, FURTHER AMENDED AS
OF JUNE 17, 1998, FURTHER AMENDED AS OF DECEMBER 23, 1998, FURTHER
AMENDED AS OF NOVEMBER 9, 2000, FURTHER AMENDED AS OF JULY 26,
2002, AND FURTHER AMENDED AS OF OCTOBER 26, 2006 (the
“Agreement” ) of THE MACERICH PARTNERSHIP, L.P.
(the “Partnership” ) is dated effective as of
March 16, 2007.
RECITALS
WHEREAS, The Macerich Company, the general partner of the
Partnership (the “General Partner” ), will be
issuing $950 million aggregate principal amount of 3.25%
Convertible Senior Notes due 2012 (the “ Convertible
Notes ”) pursuant to the Convertible Note Purchase
Agreement;
WHEREAS, Section 3.4 of the Agreement authorizes
the General Partner, notwithstanding anything to the contrary in
Section 3.3 of the Agreement, from time to time to advance
funds to the Partnership for any proper Partnership purpose as a
loan (“ Funding Loan ”) or a preferred equity
investment (“ Preferred Investment ”), provided
that any such funds must first be obtained by the General Partner
from a third party lender, and then all of such funds must be
advanced or contributed by the General Partner to the Partnership
as a Funding Loan or Preferred Investment on substantially the same
terms and conditions, including principal amount or preferred
equity amount, rate of interest or preferred return, repayment or
redemption schedule, and costs and expenses, as shall be applicable
with respect to or incurred in connection with such loan with such
third party lender;
WHEREAS, the General Partner proposes to contribute the
proceeds from the issuance of the Convertible Notes as a Preferred
Investment in the Partnership;
WHEREAS , Section 12.1(b)(iv) of the Agreement
provides that the General Partner has the power, without the
consent of the Limited Partners of the Partnership, to amend the
Agreement to reflect a change that is of an inconsequential nature
and does not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity, correct or supplement any
provision of the Agreement not inconsistent with law or with other
provisions, or make other changes with respect to matters arising
under the Agreement that will not be inconsistent with law or with
the provisions of the Agreement;
WHEREAS , the Preferred Units and Series B Preferred
Units, each as defined in the Agreement, are no longer
outstanding;
WHEREAS, the General Partner has made the determination
pursuant to Section 12.1(b)(iv) of the Agreement that
consent of the Limited Partners of the Partnership is not required
with respect to the matters set forth in this Amendment;
and
WHEREAS, all things necessary to make this Amendment a
valid agreement of the Partnership have been done;
NOW, THEREFORE,
pursuant to the authority granted to
the General Partner under the Agreement, the Agreement is hereby
amended as follows:
1.
Amendments:
(a)
Section 2.2 of the Agreement is hereby amended by inserting
the following new Section 2.2(i) to read as
follows:
(i)
Convertible Preferred Units . The General Partner hereby
makes a capital contribution to the Partnership in the amount of
the gross proceeds from the sale of the Convertible Notes, which
amount is $950 million. In exchange for such capital
contribution, the Partnership hereby issues to the General Partner
950,000 Convertible Preferred Units, each Convertible Preferred
Unit representing a capital contribution of $1,000.
Convertible Preferred Units shall entitle the General Partner to a
Convertible Preferred Return, all as described in Section
4.1 of the Agreement. At the time any Convertible Notes
are converted, a number of Convertible Preferred Units equal to the
principal amount of such converted Convertible Notes, divided by
$1,000, shall be converted into (i) to the extent common
shares of the General Partner are issued upon conversion of the
Convertible Notes, a number of Common Units equal to the total
number of common shares of the General Partner issued in connection
with such conversion (less the number of common shares of the
General Partner, if any, received by the General Partner in
connection with such conversion pursuant to the call options to
purchase common shares of the General Partner evidenced by
confirmations dated as of March 12, 2007, as amended as of
March 15, 2007, between the General Partner and each of
JPMorgan Chase Bank, National Association and Deutsche Bank AG
acting through its London Branch) (the “ Call Options
”), divided by the Conversion Factor, and (ii) to the extent
cash is paid upon conversion of the Convertible Notes, the
Partnership shall pay the General Partner in cash an amount equal
to the cash amount paid by the General Partner with respect to the
Convertible Notes upon such conversion. To the extent that
any Convertible Notes are redeemed, repurchased or repaid, the
General Partner shall be obligated to put to the Partnership a
number of Convertible Preferred Units equal to the principal amount
of the Convertible Notes so redeemed, repurchased or repaid,
divided by $1,000. Upon putting a Convertible Preferred Unit
to the Partnership, the General Partner will be paid, in
liquidation of each Convertible Preferred Unit put to the
Partnership, an amount equal to $1,000 plus any accumulated,
accrued and unpaid Convertible Preferred Return on such Convertible
Preferred Unit, plus any other amounts
2
owed or to be paid by the General
Partner in connection with the redemption, repurchase or repayment
of the corresponding Convertible Note. Notwithstanding the
foregoing, the General Partner shall not put the Convertible
Preferred Units to the Partnership or convert such Convertible
Preferred Units if the payment in liquidation or conversion of
those Convertible Preferred Units would cause the Partnership or
the General Partner to be in violation of (i) any provision of any
agreement with respect to indebtedness to which the Partnership is
an obligor (the “ Debt Instruments ”), or (ii)
Section 17-607 of the Act. Before any Convertible Preferred
Units may be converted or put to the Partnership, the General
Partner shall determine in good faith that such conversion,
redemption, repurchase or repayment, as the case may be, of such
Convertible Preferred Units will not cause a violation of the Debt
Instruments or Section 17-607 of the Act. To the extent the
General Partner is not permitted to make a payment in respect of
the Convertible Notes by reason of a restriction imposed by the
Debt Instruments or the Convertible Note Indenture, the Partnership
shall not, and shall not be obligated to, make any such payment to
the General Partner with respect to the corresponding Convertible
Preferred Units. For income tax purposes, it is the intent
that the Convertible Preferred Units and the Call Options shall be
treated as if (1) at the time any Convertible Notes are converted,
(i) a number of Convertible Preferred Units equal to the principal
amount of such converted Convertible Notes, divided by $1,000, were
converted into a number of Common Units equal to the total number
of common shares, if any, into which such Convertible Notes are
converted, divided by the Conversion Factor, and (ii) the
Partnership were to pay the General Partner in cash an amount equal
to the cash amount, if any, paid by the General Partner upon such
conversion; (2) common shares of the General Partner, if any,
received under the Call Options upon their exercise were deemed
received by the Partnership; and (3) such shares, if any, were
distributed to the General Partner in redemption of an equal
number, divided by the Conversion Factor, of Common Units converted
pursuant to (1)(i) of this sentence.
(b)
Section 4.1 of the Agreement is hereby amended to read as
follows:
4.1 Distribution of Net
Cash Flow. The
General Partner shall cause the Partnership to distribute all or a
portion of Net Cash Flow to the Partners from time to time as
determined by the General Partner, but in any event not less
frequently than quarterly, in such amounts as the General Partner
shall determine. Notwithstanding the foregoing, the General
Partner shall use its reasonable efforts to cause the Partnership
to distribute sufficient amounts to enable the General Partner to
pay shareholder dividends that will (a) satisfy the
requirements for qualifying as a REIT under the Code and
Regulations ( “REIT Requirements” ), and
(b) avoid any federal i
