AMENDMENT TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
THE MACERICH PARTNERSHIP, L.P.
THIS AMENDMENT (the "AMENDMENT") TO THE AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT DATED AS OF MARCH 16, 1994, AMENDED AS OF AUGUST 14,
1995 AND AS OF JUNE 27, 1997 (the "AGREEMENT") OF THE MACERICH PARTNERSHIP,
L.P. (the "PARTNERSHIP") is dated effective as of November 16, 1997.
RECITALS
WHEREAS, The Macerich Company, the general partner of the Partnership
(the "GENERAL PARTNER"), has determined to amend the Partnership Agreement to
clarify and confirm its ability to borrow funds from the Partnership in order
to make loans for such purposes as are permitted under The Macerich Company
Amended and Restated 1994 Incentive Plan (the "PLAN").
WHEREAS, SECTION 3.3(c) of the Agreement contemplates that the General
Partner may provide incentives to its executive officers in accordance with
the Plan, including the making of loans to such executive officers for such
purposes as are permitted by the Plan;
WHEREAS, SECTION 3.4 of the Agreement purportedly limits the ability of
the General Partner to incur indebtedness and does not expressly include an
exception that would allow the General Partner to incur indebtedness from the
Partnership for such purposes as are permitted under the Plan and as
contemplated by SECTION 3.3(c) of the Agreement;
WHEREAS, the operation of SECTION 3.4 of the Agreement together with
SECTION 3.3(c) of the Agreement creates an ambiguity which the General
Partner desires to clarify;
WHEREAS, the General Partner has determined that authorizing the General
Partner to incur indebtedness from the Partnership for such purposes as are
permitted under the Plan is a change that is of an inconsequential nature and
does not adversely affect the limited partners in any material respect;
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 as may be required to (i) cure any
ambiguity and correct any provision of the Agreement or (ii) reflect a change
that is of an inconsequential nature and does not adversely affect the
limited partners in any material respect;
1
WHEREAS, the General Partner has made the determination that consent of
the partners of the Partnership is not required with respect to the matters
set forth in this Amendment because this Amendment: (i) is being executed for
the purpose of curing an ambiguity created by the relationship between
SECTION 3.3(c) and SECTION 3.3 (and correcting SECTION 3.4); (ii) in any
event, reflects a change that is of an inconsequential nature and does not
adversely affect the limited partners in any material respect; and (iii) does
not otherwise require the consent of the limited partners pursuant to SECTION
12.1(c); 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. Amendment:
Section 3.4 of the Agreement is hereby amended to read as follows:
Notwithstanding anything to the contrary in SECTION 3.3, the General
Partner may from time to time 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. The General
Partner shall not incur any indebtedness for borrowed funds, except for
(i) Funding Loans or Preferred Investments; (ii) loans from the
Partnership to the General Partner to the extent the proceeds thereof
are used to fund, directly or indirectly, participations in, or
acquisitions of, any real or personal property interests for the account
of the General Partner if, and only if, the Partnership participates or
acquires an interest in such property at least to the extent of 99 times
such proposed participation or acquisition, directly or through a
wholly-owned entity, by the General Partner; and/or (iii) loans from the
Partnership to the General Partner to facilitate the making of loans by
the General Partner for such purposes as are authorized under the Plan.
2. DEFINED TERMS AND RECITALS. As used in this Amendment, capitalized
terms used and defined in this Amendment shall have the meaning assigned to
them in this Amendment, and capitalized terms used in this Amendment but not
defined herein, shall have the meaning assigned
2
to them in the Agreement.
3. RATIFICATION AND CONFIRMATION. Except to the extent specifically
amended by this Amendment, the terms and provisions of the Agreement, as
previously amended, are hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned has executed this Amendment
effective as of the date first above mentioned.
GENERAL PARTNER:
THE MACERICH COMPANY,
a Maryland corporation
By: /s/ Richard A. Bayer
---------------------------------
Richard A. Bayer
General Counsel & Secretary
S-1
1