FIFTH AMENDMENT TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
THE MACERICH PARTNERSHIP, L.P.
THIS FIFTH 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, AND FURTHER AMENDED AS OF FEBRUARY 25, 1998 (the
"AGREEMENT") OF THE MACERICH PARTNERSHIP, L.P. (the "PARTNERSHIP") is dated
effective as of February 26, 1998.
RECITALS
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 facilitate or
implement curing any ambiguity, correcting or supplementing any provision in
the Agreement not inconsistent with law or with other provisions of the
Agreement;
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 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. For purposes of this
Section 3.4, participations in or acquisitions of any real estate or
personal property interests shall include ownership through one or more
tiers of partnerships, joint ventures, limited liability companies or
other entities which themselves own real estate or personal property.
(b) Section 6.4 of the Agreement is hereby amended to read as follows:
The General Partner agrees that all business activities of the General
Partner, including activities pertaining to the acquisition, development
and ownership of Properties, shall be conducted through the Partnership
(other than the General Partner's 1% interest in Existing Property
Partnerships owned directly or through a wholly-owned corporation);
PROVIDED, HOWEVER, that the General Partner shall be permitted to
participate or acquire an interest in, directly or indirectly, any real
or personal property for its own account 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 corporation, by the
General Partner. The Company agrees that for so long as it is a Partner
all borrowings for the purpose of making distributions to its
stockholders will be incurred by the Partnership or the Property
Partnerships (and not by the Company directly) and the proceeds of such
indebtedness will be included as Net Financing Proceeds hereunder. For
purposes of this Section 6.4, participations in or acquisitions of any
real estate or personal property interests shall include ownership
through one or more tiers of partnerships, joint ventures, limited
liability companies or other entities which themselves own real estate
or personal property.
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 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.
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IN WITNESS WHEREOF, the undersigned has executed this Amendment
effective as of the date first above mentioned.
GENERAL PARTNER:
THE MACERICH COMPANY
By:
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Name:
Title:
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