SIXTH AMENDMENT TO THE
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
THE MACERICH PARTNERSHIP, L.P.
THIS SIXTH 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, AND FURTHER AMENDED AS OF
FEBRUARY 26, 1998 (the "AGREEMENT") OF THE MACERICH PARTNERSHIP, L.P. (the
"PARTNERSHIP") is dated effective as of June 17, 1998.
RECITALS
WHEREAS, The Macerich Company, the general partner of the Partnership
(the "GENERAL PARTNER"), will be issuing to The Ontario Teachers Pension Plan
Board ("Ontario Teachers"), 5,487,471 shares of Series B Cumulative Convertible
Redeemable Preferred Stock, $.01 par value per share ("SERIES B PREFERRED
SHARES"), pursuant to the Series B Preferred Securities Purchase Agreement dated
as of June 16, 1998 between the General Partner and Ontario Teachers (the
"Purchase Agreement");
WHEREAS, SECTION 3.3 (a)(i) of the Agreement authorizes the General
Partner to cause the Partnership to issue additional interests in the
Partnership in one or more classes, or one or more series of any of such
classes, with such designations, preferences and relative, participating,
optional or other special rights, powers and duties, including rights, powers
and duties senior to those of the Limited Partners, all as shall be determined
by the General Partner in its sole and absolute discretion and without the
approval of any of the Limited Partners; PROVIDED, HOWEVER, that any such
additional interests in the Partnership must be issued in connection with an
issuance of shares of or other interests in the General Partner, which shares or
interests have designations, preferences and other rights, all such that the
economic interests are substantially similar to the designations, preferences
and other rights of the additional interests in the Partnership being issued to
the General Partner by the Partnership in accordance with SECTION 3.3. OF THE
AGREEMENT, and the General Partner shall make a capital contribution to the
Partnership in an amount equal to the proceeds raised in connection with the
issuance of such shares of or other interests in the General Partner;
WHEREAS, SECTION 12.1(b)(iii) 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 setting forth the designations, rights, powers, duties, and
preferences of the holders of any additional interests in the Partnership issued
pursuant to SECTION 3.3;
WHEREAS, the General Partner has made the determination pursuant to
SECTION 12.1(b)(iii) 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(d) to read as follows:
(d) SERIES B 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 Series B Preferred Shares to Ontario Teachers
pursuant to the Purchase Agreement, which amount is $150,000,019.70. In
exchange for such capital contribution, the Partnership hereby issues to
the General Partner 5,487,471 Series B Preferred Units, each Series B
Preferred Unit representing a capital contribution of $27.335. Series B
Preferred Units shall entitle the General Partner to a Series B Preferred
Return, all as described in SECTION 4.1 of the Agreement. Series B
Preferred Units shall be converted into Common Units at the time the Series
B Preferred Shares are converted into common shares of the General Partner
in an amount of Common Units equal to the total amount of such converted
common shares divided by the Conversion Factor. To the extent that Series
B Preferred Shares are being redeemed, the General Partner shall be
obligated to put to the Partnership a number of Series B Preferred Units
equal to the number of Series B Preferred Shares being redeemed or repaid.
Upon putting a Series B Preferred Unit to the Partnership, the General
Partner will be paid, in liquidation of each Series B Preferred Unit being
put to the Partnership, an amount equal to $27.335 plus any accumulated,
accrued and unpaid Series B Preferred Return on such Series B Preferred
Unit, PLUS any other amounts owed or to be paid by the General Partner in
connection with the redemption of the corresponding Series B Preferred
Share; PROVIDED, HOWEVER, that the General Partner shall not put the Series
B Preferred Units to the Partnership if the payment in liquidation of those
Series B 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, including the Credit and Guaranty Agreement and those
agreements with respect to the Convertible Subordinated Debentures (the
"Debt Instruments"), or (ii) Section 17-607 of the Act. Before any Series
B Preferred Units may be put to the Partnership, the General Partner shall
determine in good faith that the redemption of such Series B 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 Series B Preferred Shares by reason of a
restriction imposed by the Debt Instruments or Section 17-607 of the Act,
the Partnership shall not, and shall not be obligated to, make any such
payment to the General Partner with respect to the corresponding Series B
Preferred Units.
(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
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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 income or
excise tax liability of the General Partner. All amounts withheld pursuant
to the Code or a provision of any state or local tax law with respect to
any allocation, payment or distribution to the General Partner or any
Limited Partner shall be treated as amounts distributed to such Partner.
Upon the receipt by the General Partner of each Exercise Notice pursuant to
which one or more Redemption Partners exercise Redemption Rights in
accordance with the provisions of ARTICLE IX and the Redemption Rights
Exhibit, the General Partner shall, unless the General Partner has elected
to issue only Shares to such Redemption Partners in respect of the Purchase
Price of the Offered Interests, cause the Partnership to distribute to the
Partners, PRO RATA in accordance with their respective Percentage Interests
as of the date of delivery of such Exercise Notice, all (or such lesser
portion as the General Partner shall reasonably determine to be prudent
under the circumstances) of Net Cash Flow, which distribution shall be made
prior to the closing of the redemption or purchase and sale of the Offered
Interests specified in such Exercise Notice. Subject to any restrictions
or limitations imposed by the Debt Instruments or Section 17-607 of the
Act, distributions shall be made in accordance with the following order of
priority:
(a) First, semi-annual distributions to the General Partner with
respect to the Preferred Units in an amount equal to the cumulative and
unpaid Preferred Return on such Preferred Units in such a way as to allow
the General Partner to pay interest and any additional amounts on the
Convertible Subordinated Debentures payable to the holders thereof;
(b) Second, to the General Partner, with respect to the Series A
Preferred Units and Series B Preferred Units, in an amount equal to the
cumulative and unpaid Series A Preferred Return on such Series A Preferred
Units, and the cumulative and unpaid Series B Preferred Return on such
Series B Preferred Units in such a way as to allow the General Partner to
pay cumulative preferential dividends and any additional amounts required
on the Series A Preferred Shares and the Series B Preferred Shares,
respectively, payable to the holders thereof; and
(c) Next, to the Partners holding Common Units, PRO RATA in
accordance with such Partners' then Percentage Interests.
(c) The definition of the term "Partnership Interest" contained in
the Glossary of Defined Terms of the Agreement is hereby amended to read as
follows:
"PARTNERSHIP INTEREST" shall mean an ownership interest of a
Partner in the Partnership from time to time, including, as applicable,
such Partner's Preferred Units, Series A Preferred Units, Series B
Preferred Units and Percentage Interest and such Partner's Capital Account,
and any and all other benefits to which the holder of such Partnership
Interest may be entitled as provided in this Agreement, together with all
obligations of such Person to comply with the terms of this Agreement.
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(d) The definition of the term "Partnership Unit" contained in the
Glossary of Defined Terms of the Agreement is hereby amended to read as follows:
"PARTNERSHIP UNIT" shall mean a Common Unit, Preferred Unit,
Series A Preferred Unit or Series B Preferred Unit and shall constitute a
fractional, undivided share of the Partnership Interests corresponding to
that particular class of Units.
(e) The definition of the term "Common Unit" contained in the
Glossary of Defined Terms of the Agreement is hereby amended to read as follows:
"COMMON UNIT" shall mean Partnership Interests other than Preferred Units,
Series A Preferred Units and Series B Preferred Units.
(f) The Glossary of Defined Terms of the Agreement is hereby amended
to include the following definitions:
"SERIES B PREFERRED RETURN" shall mean an amount per Series B
Preferred Unit equal to the greater of (i) an annual distribution of $1.84
or (ii) the regular cash distributions on the Common Units, or portion
thereof, into which a Series B Preferred Unit is convertible. The Series B
Preferred Return will be based on the General Partner's Capital
Contribution in respect of the Series B Preferred Units for which the
Series B Preferred Return is being determined as provided in the definition
of Series B Preferred Units below (taking into account any reduction of
such Capital Contribution by any redemptions or conversions of such Series
B Preferred Units), commencing on the first date such Series B Preferred
Units are issued to the General Partner. It is intended that the Series B
Preferred Return will be equal to the dividends and any additional amounts
payable on the Series B Preferred Shares to the holders thereof so that the
General Partner will receive a Series B Preferred Return in an amount
sufficient for the General Partner to make all payments in respect of the
Series B Preferred Shares.
"SERIES B PREFERRED SHARES" shall mean those shares of Series B Cumulative
Convertible Redeemable Preferred Stock, $.01 par value per share; issued by
the General Partner to Ontario Teachers.
"SERIES B PREFERRED SHARES ARTICLES SUPPLEMENTARY" shall mean the Series B
Cumulative Convertible Redeemable Preferred Stock Articles Supplementary,
dated as of June 15, 1998, which fixes the distribution and other
preferences and rights of the Series B Preferred Shares.
"SERIES B PREFERRED UNITS" shall mean the Partnership Units of the General
Partner representing the Capital Contribution of the Series B Preferred
Share proceeds, as set forth in SECTION 2.2(d) of the Agreement. For the
purposes of this Agreement, if the proceeds actually received by the
General Partner are less than the gross proceeds of the issuance of the
Series B Preferred Shares as a result of any discount, placement fee or
other expenses paid or incurred in connection with such issuance, then the
General Partner shall be deemed to have made a Capital Contribution to the
Partnership in the amount of the gross proceeds of such issuance and the
Partnership shall be deemed simultaneously to have reimbursed the General
Partner pursuant to SECTION 6.1 for the amount of such discount, placement
fee or other expenses.
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(g) Section 2.1 of Exhibit A (Allocations Exhibit) is hereby amended to
read as follows:
2.1 NET INCOME. After giving effect to the special allocations set
forth in Article 3 of this Allocations Exhibit, Net Income for any
fiscal year or other applicable period shall be allocated in the
following order and priority:
(a) First, to the Partners, until the cumulative Net Income
allocated pursuant to this subparagraph 2.1(a) for the current and all
prior periods equals the cumulative Net Loss allocated pursuant to
subparagraphs 2.2(c) and (d) hereof for all prior periods, among the
Partners in the reverse order that such Net Loss was allocated (and, in the
event of a shift of a Partner's interest in the Partnership, to the
Partners in a manner that most equitably reflects the successors in
interest of such Partners);
(b) Second, to the General Partner, until the cumulative Net
Income allocated pursuant to this subparagraph 2.1(b) for the current and
all prior periods equals the cumulative Net Loss allocated pursuant to
Subparagraph 2.2(b) hereof for all prior periods;
(c) Third in respect of its Preferred Units to the General
Partner until the cumulative amount of Net Income allocated pursuant to
this subparagraph 2.1(c) for the current and all prior periods equals the
cumulative Preferred Return on the Preferred Units;
(d) Fourth, to the General Partner in respect of the Series A
Preferred Units and the Series B Preferred Units until the cumulative
amount of Net Income allocated pursuant to this subparagraph 2.1(d) equals
the cumulative Series A Preferred Return on the Series A Preferred Units,
and the cumulative Series B Preferred Return on the Series B Preferred
Units, respectively; and
(e) Thereafter, the balance of the Net Income, if any, shall be
allocated to the Partners holding Common Units in accordance with their
respective Percentage Interests.
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: /s/ Richard A. Bayer
-----------------------------
Richard A. Bayer
General Counsel and Secretary
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