EXHIBIT 10.17
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF
GGPLP L.L.C.
THIS THIRD AMENDMENT (the "Third Amendment") is made and entered into
on the 30th day of October, 2002, by and among the undersigned parties.
W I T N E S S E T H:
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WHEREAS, a Delaware limited liability company known as GGPLP L.L.C.
(the "Company") exists pursuant to the Delaware Limited Liability Company Act
and that certain Second Amended and Restated Operating Agreement dated April 17,
2002, as amended (the "Restated Agreement"); and
WHEREAS, the parties hereto, being all of the holders of Common Units,
Series A Preferred Units and Series B Preferred Units (as such terms are defined
in the Restated Agreement), desire to amend the Restated Agreement to set forth
certain understandings among them.
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 Restated Agreement, as
amended hereby.
2. AMENDMENT TO SECTION 7 OF SCHEDULE B. Section 7 of Schedule B to the
Restated Agreement is hereby amended by deleting the phrase "April 23" each time
it appears therein and substituting "October 30, 2002" in its place and stead.
3. AMENDMENT TO SECTION 4.3(i)(ii) OF THE RESTATED AGREEMENT. Sections
4.3(i)(ii)(B) through (D) of the Restated Agreement are hereby amended by
replacing them in their entirety with the following:
"(B) The Company shall not, and shall not permit any
of its Subsidiaries or Investment Affiliates to, create,
incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or
rights in respect thereof, pursuant to any arrangement
relating to Parent Indebtedness (excluding from the definition
of Parent Indebtedness for this purpose any guarantee
obligations of Parent Group in respect of primary obligations
of the Company or any of its Subsidiaries or Investment
Affiliates), except for Liens arising out of any arrangement
referred to on Schedule 3.aa to the Purchase Agreement (which
arrangements are hereby approved) but only to the extent that
the Parent Indebtedness outstanding at any time relating to
such arrangement does not exceed the maximum
amount of Parent Indebtedness that may be incurred in
connection with such arrangement in accordance with the terms
thereof as of April 17, 2002 (but nothing contained herein
shall prohibit the extension of such arrangements in
accordance with the existing extension options relating
thereto).
(C) The Company shall not, and shall not permit any
of its Subsidiaries or Investment Affiliates to, incur, assume
or permit to exist any Guarantee of Parent Indebtedness
(excluding from the definition of Parent Indebtedness for this
purpose any guarantee obligations of Parent Group in respect
of primary obligations of the Company or any of its
Subsidiaries or Investment Affiliates) by any member of the
Consolidated Group or any Investment Affiliate other than
Guarantees arising out of any arrangement referred to on
Schedule 3.aa to the Purchase Agreement (which arrangements
are hereby approved) but only to the extent that the Parent
Indebtedness outstanding at any time relating to such
arrangement does not exceed the maximum amount of Parent
Indebtedness that may be incurred in connection with such
arrangement in accordance with the terms thereof as of April
17, 2002 (but nothing contained herein shall prohibit the
extension of such arrangements in accordance with the existing
extension options relating thereto).
(D) With respect to any JV, (i) the Company shall
not, and shall not permit any of its Subsidiaries or
Investment Affiliates (other than such JV) to, incur, assume
or permit to exist any Guarantee of JV Indebtedness (excluding
from the definition of JV Indebtedness for this purpose any
guarantee obligations of such JV in respect of primary
obligations of the Company or any of its Subsidiaries or
Investment Affiliates (other than such JV)) by any member of
the Consolidated Group or any Investment Affiliate (other than
such JV) other than a Guarantee of no more than the Company's
pro rata portion (based on the Company's direct or indirect
percentage ownership interest in such JV) of such JV
Indebtedness; (ii) the Company shall not, and shall not permit
any of its Subsidiaries or Investment Affiliates (other than
such JV) to, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts
receivable) or rights in respect thereof, pursuant to any
arrangement relating to JV Indebtedness (excluding from the
definition of JV Indebtedness for this purpose any guarantee
obligations of such JV in respect of primary obligations of
the Company or any of its Subsidiaries or Investment
Affiliates (other than such JV)); (iii) the Company shall not
permit such JV to create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired
by
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it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect thereof, pursuant to
any arrangement relating to Indebtedness of another Entity
(other than Indebtedness of a member of the Consolidated Group
or an Investment Affiliate (in either case, other than another
JV) with respect to which Indebtedness such member or
Investment Affiliate is the primary obligor); and (iv) the
Company shall not permit such JV to create, incur or assume
any Guaranty pursuant to any arrangement relating to
Indebtedness of another Entity (other than Indebtedness of a
member of the Consolidated Group or an Investment Affiliate
(in either case, other than another JV) with respect to which
Indebtedness such member or Investment Affiliate is the
primary obligor)."
4. AMENDMENT TO SECTION 9(b) OF SCHEDULE B. Sections 9(b)(ii) through
(iv) of Schedule B to the Restated Agreement are hereby amended by replacing
them in their entirety with the following:
"(ii) The Company shall not, and shall not permit any
of its Subsidiaries or Investment Affiliates to, create,
incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or
rights in respect thereof, pursuant to any arrangement
relating to Parent Indebtedness (excluding from the definition
of Parent Indebtedness for this purpose any guarantee
obligations of Parent Group in respect of primary obligations
of the Company or any of its Subsidiaries or Investment
Affiliates), except for Liens arising out of any arrangement
referred to on Schedule 3.aa to the Purchase Agreement (which
arrangements are hereby approved) but only to the extent that
the Parent Indebtedness outstanding at any time relating to
such arrangement does not exceed the maximum amount of Parent
Indebtedness that may be incurred in connection with such
arrangement in accordance with the terms thereof as of April
17, 2002 (but nothing contained herein shall prohibit the
extension of such arrangements in accordance with the existing
extension options relating thereto).
(iii) The Company shall not, and shall not permit any
of its Subsidiaries or Investment Affiliates to, incur, assume
or permit to exist any Guarantee of Parent Indebtedness
(excluding from the definition of Parent Indebtedness for this
purpose any guarantee obligations of Parent Group in respect
of primary obligations of the Company or any of its
Subsidiaries or Investment Affiliates) by any member of the
Consolidated Group or any Investment Affiliate other than
Guarantees arising out of any arrangement referred to on
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Schedule 3.aa to the Purchase Agreement (which arrangements
are hereby approved) but only to the extent that the Parent
Indebtedness outstanding at any time relating to such
arrangement does not exceed the maximum amount of Parent
Indebtedness that may be incurred in connection with such
arrangement in accordance with the terms thereof as of April
17, 2002 (but nothing contained herein shall prohibit the
extension of such arrangements in accordance with the existing
extension options relating thereto).
(iv) With respect to any JV, (i) the Company shall
not, and shall not permit any of its Subsidiaries or
Investment Affiliates (other than such JV) to, incur, assume
or permit to exist any Guarantee of JV Indebtedness (excluding
from the definition of JV Indebtedness for this purpose any
guarantee obligations of such JV in respect of primary
obligations of the Company or any of its Subsidiaries or
Investment Affiliates (other than such JV)) by any member of
the Consolidated Group or any Investment Affiliate (other than
such JV) other than a Guarantee of no more than the Company's
pro rata portion (based on the Company's direct or indirect
percentage ownership interest in such JV) of such JV
Indebtedness; (ii) the Company shall not, and shall not permit
any of its Subsidiaries or Investment Affiliates (other than
such JV) to, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts
receivable) or rights in respect thereof, pursuant to any
arrangement relating to JV Indebtedness (excluding from the
definition of JV Indebtedness for this purpose any guarantee
obligations of such JV in respect of primary obligations of
the Company or any of its Subsidiaries or Investment
Affiliates (other than such JV)); (iii) the Company shall not
permit such JV to create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired
by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect thereof, pursuant to
any arrangement relating to Indebtedness of another Entity
(other than Indebtedness of a member of the Consolidated Group
or an Investment Affiliate (in either case, other than another
JV) with respect to which Indebtedness such member or
Investment Affiliate is the primary obligor); and (iv) the
Company shall not permit such JV to create, incur or assume
any Guaranty pursuant to any arrangement relating to
Indebtedness of another Entity (other than Indebtedness of a
member of the Consolidated Group or an Investment Affiliate
(in either case, other than another JV) with respect to which
Indebtedness such member or Investment Affiliate is the
primary obligor). "
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5. OTHER PROVISIONS UNAFFECTED. Except as expressly amended hereby, the
Restated Agreement shall remain in full force and effect in accordance with its
terms.
6. COUNTERPARTS. This Third Amendment may be executed in counterparts,
each of which shall be an original, but all of which shall constitute one and
the same document and all signatures need not appear on the same page.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment (and General Growth Properties, Inc. has executed this Third Amendment
solely for the purpose of binding itself under Section 7 of Schedule B to the
Restated Agreement, as amended hereby) on the day and year first above written.
MANAGING MEMBER:
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: General Growth Properties, Inc., a Delaware
corporation, its general partner
By: /s/ Bernard Freibaum
---------------------------------------
Name: Bernard Freibaum
Title: Executive Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
CERTAIN OTHER MEMBERS:
CALEDONIAN HOLDING COMPANY, INC., a
Delaware corporation
By: /s/ Bernard Freibaum
------------------------------------------------
Name: Bernard Freibaum
Title: Executive Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
GGP AMERICAN PROPERTIES INC., a
Delaware corporation
By: /s/ Bernard Freibaum
------------------------------------
Name: Bernard Freibaum
Title: Executive Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
GSEP 2000 REALTY CORP.
By: /s/ Eric Lane
-------------------------------------
Name: Eric Lane
Title: President and CEO
c/o Goldman, Sachs & Co.
One New York Plaza
New York, New York 10004
Attention: Eric Lane
GSEP 2002 REALTY CORP.
By: /s/ Eric Lane
-------------------------------------
Name: Eric Lane
Title: President and CEO
c/o Goldman, Sachs & Co.
One New York Plaza, 40th Floor
New York, New York 10004
Attention: Eric Lane
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GGPI:
GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation
By: /s/ Bernard Freibaum
------------------------------------
Name: Bernard Freibaum
Title: Executive Vice President
110 North Wacker Drive
Chicago, Illinois 60606
Attention: John Bucksbaum
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