EXHIBIT 10.5
SECOND AMENDMENT TO THE
FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
WESTFIELD AMERICA LIMITED PARTNERSHIP
This SECOND AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF WESTFIELD AMERICA LIMITED PARTNERSHIP, dated as of
December 8, 1998 (this "Amendment"), is being executed by Westfield America,
Inc., a Missouri corporation (the "Managing General Partner"), as the managing
general partner of Westfield America Limited Partnership, a Delaware limited
partnership (the "Partnership"), and on behalf of the Limited Partners pursuant
to the authority conferred on the Managing General Partner by Sections 2.4 and
12.3 of the First Amended and Restated Agreement of Limited Partnership of
Westfield America Limited Partnership, dated as of August 3, 1998, as amended by
that certain First Amendment to the First Amended and Restated Agreement of
Limited Partnership of Westfield America Limited Partnership dated as of August
12, 1998 (as so amended, the "Agreement"). Capitalized terms used herein, but
not otherwise defined herein, shall have the respective meanings ascribed
thereto in the Agreement.
WHEREAS, the General Partner and the Limited Partners entered into the
Agreement specifying the rights and obligations of each of the parties thereto;
and
WHEREAS, the General Partner and the Limited Partners now desire to amend
the Agreement in the manner set forth below.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions; References. Unless otherwise specifically
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defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof," "hereunder," "herein," and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended by this Amendment.
Section 2. Amendment of Definition. The definition of "Specified
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Partnership Common Unit Amount" contained in Article I is hereby deleted in its
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entirety and replaced with the following definition of "Specified Partnership
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Units":
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" "Specified Partnership Units" shall mean, (i) with respect to each
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Excluded Property that is listed on Exhibit G as of the date hereof, the
number of Partnership Common Units and/or Partnership Preferred Units (as
the case may be) set forth opposite such Excluded Property on Exhibit G,
and (ii) with respect to each Excluded Property that is added to Exhibit G
from and after the date hereof, the amount of Partnership Common Units
and/or Partnership Preferred Units (as the case may be) which would have
been issued to WEA, pursuant to Section 4.3.B and 4.2 hereof, if WEA had
contributed such Excluded Property on the later to occur of (A) the date of
issuance of any Partnership Unit or grant of any Investor Unit Right to any
Person that is not an Affiliate of WEA and (B) the date that such asset was
acquired by WEA or a wholly-owned Subsidiary of WEA, in exchange for
Partnership Units equal in value to the fair market value of such Excluded
Property as of such date."
Section 3. Amendment of Section 4.10. Section 4.10 is hereby
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amended to read in its entirety as follows:
" 4.10 Excluded Properties. WEA shall contribute each Excluded Property
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(or, if applicable, the proceeds (after payment of all transfer taxes and
other transaction costs) received by WEA from the sale, transfer or other
disposition of an Excluded Property to a Person who is not an Affiliate of
WEA) to the Partnership upon the earlier of (i) such time as it is
commercially practicable to contribute such property to the Partnership
without adverse tax or other economic consequence to WEA and (ii) any sale,
transfer or other disposition of an Excluded Property to a Person who is
not an Affiliate of WEA. Upon any such contribution of an Excluded
Property or the proceeds therefrom, WEA shall receive in exchange for such
contribution, notwithstanding the actual value of such Excluded Property or
the amount of such proceeds (as the case may be), the Specified Partnership
Units applicable to such Excluded Property. Such Specified Partnership
Units may be allocated among the Managing General Partner and any Special
Limited Partners at the discretion of the Managing General Partner."
Section 4. Amendment of Section 6.2.A. Section 6.2.A. is hereby
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amended to read in its entirety as follows:
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" A. In General. Subject to Section 11.6.C and Section 13.7.D(2)
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hereof, Net Income and Net Loss shall be allocated to each of the Holders
as follows:
(i) Net Income will be allocated to Holders of Partnership Pre-
ferred Units and Investor Unit Rights (other than Class A Investor
Unit Rights) in accordance with and subject to the terms of the
Partnership Unit Designation or Investor Unit Right Designation
applicable to such Partnership Preferred Units or Investor Unit
Rights;
(ii) remaining Net Income will be allocated to the Holders of
Partnership Common Units and Class A Investor Unit Rights in
accordance with their respective Percentage Interests at the end of
each Partnership Year;
(iii) subject to the terms of any Partnership Unit Designation or
Investor Unit Right Designation, Net Loss will be allocated to the
Holders of Partnership Common Units and Class A Investor Unit Rights
in accordance with their respective Percentage Interests at the end of
each Partnership Year; and
(iv) for purposes of this Section 6.2.A, the Percentage Interests of
the Holders of Partnership Common Units and Class A Investor Unit
Rights shall be calculated based on a denominator equal to the
aggregate Partnership Common Units and Class A Investor Unit Rights
outstanding as of the date of determination."
Section 5. Amendment of Section 11.3.A. Section 11.3.A. is hereby
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amended to read in its entirety as follows:
" A. General. Prior to the end of the first Twelve-Month Period and
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except as provided in Section 11.1.C hereof, no Limited Partner shall
Transfer all or any portion of its Partnership Interest to any transferee
without the consent of the Managing General Partner, which consent may be
withheld in its sole and absolute discretion; provided, however, that any
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Limited Partner may, at any time, without the consent of the Managing
General Partner, (i) Transfer all or part of its Partnership Interest to
any Family Member, any Charity, any Controlled Entity or any Affiliate,
provided that the transferee is, in any such case, a Qualified Transferee,
or (ii) pledge (a "Pledge") all or any portion of its Partnership Interest
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to a lending institution,
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that is not an Affiliate of such Limited Partner, as collateral or security
for a bona fide loan or other extension of credit, and Transfer such
pledged Partnership Interest to such lending institution in connection
with the exercise of remedies under such loan or extension of credit (any
Transfer or Pledge permitted by this proviso is hereinafter referred to as
a "Permitted Transfer"). After such first Twelve-Month Period, each Limited
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Partner, and each trans feree of Partnership Units or Assignee pursuant to
a Permitted Transfer, shall have the right to Transfer all or any portion
of its Partnership Interest to any Person, subject to the provisions of
Section 11.4 hereof and to satisfaction of each of the following
conditions:
(1) Managing General Partner Right of First Refusal. The
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transferring Partner (or the Partner's estate in the event of the Partner's
death) shall give written notice of the proposed Transfer to the Managing
General Partner, which notice shall state (i) the identity of the proposed
transferee and (ii) the amount and type of consideration proposed to be
received for the Transferred Partnership Units. The Managing General
Partner shall have ten (10) Business Days upon which to give the
Transferring Partner notice of its election to acquire the Partnership
Units on the terms set forth in such notice. If it so elects, it shall
purchase the Partnership Units on such terms within ten (10) Business Days
after giving notice of such election; provided, however, that in the event
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that the proposed terms involve a purchase for cash, the Managing General
Partner may at its election deliver in lieu of all or any portion of such
cash a note payable to the Transferring Partner at a date as soon as
reasonably practicable, but in no event later than one hundred eighty (180)
days after such purchase, and bearing interest at an annual rate equal to
the total dividends declared with respect to one (1) REIT Share for the
four (4) preceding fiscal quarters of the Managing General Partner, divided
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by the Value as of the closing of such purchase; provided, further, that
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such closing may be deferred to the extent necessary to effect compliance
with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, if
applicable, and any other applicable requirements of law. If it does not
so elect, the Transferring Partner may Transfer such Partnership Units to a
third party, on terms no more favorable to the transferee than the proposed
terms, subject to the other conditions of this Section 11.3.
(2) Qualified Transferee. Any Transfer of a Partnership Interest
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shall be made only to a single Qualified Transferee; provided, however,
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that, for such purposes, all Qualified Transferees that are Affiliates, or
that comprise investment accounts or funds managed by a single Qualified
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Transferee and its Affiliates, shall be considered together to be a single
Qualified Transferee; provided, further, that each Transfer meeting the
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minimum Transfer restriction of Section 11.3.A(4) hereof may be to a
separate Qualified Transferee.
(3) Opinion of Counsel. The Transferor shall deliver or cause to
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be delivered to the Managing General Partner an opinion of counsel
reasonably satisfactory to it to the effect that the proposed Transfer may
be effected without registration under the Securities Act and will not
otherwise violate the registration provisions of the Securities Act and the
regulations promulgated thereunder or violate any state securities laws or
regulations applicable to the Partnership or the Partnership Interests
Transferred; provided, however, that the Managing General Partner may, in
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its sole discretion, waive this condition upon the request of the
Transferor. If, in the opinion of such counsel, such Transfer would
require the filing of a registration statement under the Securities Act or
would otherwise violate any Federal or state securities laws or regulations
applicable to the Partnership or the Partnership Units, the Managing
General Partner may prohibit any Transfer otherwise permitted under this
Section 11.3 by a Limited Partner of Partnership Interests.
(4) Minimum Transfer Restriction. Any Transferring Partner must
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Transfer not less than the lesser of (i) five hundred (500) Partnership
Units or (ii) all of the remaining Partnership Units owned by such
Transferring Partner; provided, however, that, for purposes of determining
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compliance with the foregoing restriction, all Partnership Units owned by
Affiliates of a Limited Partner shall be considered to be owned by such
Limited Partner.
(5) Transferee Agreement to Effect a Redemption. Any proposed
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transferee shall deliver to the Managing General Partner a written
agreement reasonably satisfactory to the Managing General Partner to the
effect that the transferee will, within six (6) months after consummation
of a Partnership Common Units Transfer, tender its Partnership Common Units
for Redemption in accordance with the terms of the Redemption rights
provided in Section 16.1 hereof.
(6) No Further Transfers. The transferee shall not be permitted
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to effect any further Transfer of the Partnership Units, other than to the
Managing General Partner.
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(7) Exception for Permitted Transfers. The conditions of
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Sections 11.3.A(1) through 11.3.A(6) hereof shall not apply in the case of
a Permitted Transfer.
It is a condition to any Transfer otherwise permitted hereunder (whether or not
such Transfer is effected during or after the first Twelve-Month Period) that
the transferee assumes by operation of law or express agreement all of the
obligations of the transferor Limited Partner under this Agreement with respect
to such Transferred Partnership Interest, and no such Transfer (other than
pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor Partner are assumed by a successor corporation by
operation of law) shall relieve the transferor Partner of its obligations under
this Agreement without the approval of the Managing General Partner, in its sole
and absolute discretion. Notwithstanding the foregoing, any transferee of any
Transferred Partnership Interest shall be subject to any and all ownership
limitations (including, without limitation, the Ownership Limit) contained in
the Charter that may limit or restrict such transferee's ability to exercise its
Redemption rights, including, without limitation, the Ownership Limit. Any
transferee, whether or not admitted as a Substituted Limited Partner, shall take
su bject to the obligations of the transferor hereunder. Unless admitted as a
Substituted Limited Partner, no transferee, whether by a voluntary Transfer, by
operation of law or otherwise, shall have any rights hereunder, other than the
rights of an Assignee as provided in Section 11.5 hereof."
Section 6. Amendment of Section 13.7.A. Section 13.7.A. is hereby
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amended to read in its entirety as follows:
" A. General. Prior to the end of the first Twelve-Month Period, no
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Investor shall Transfer all or any portion of its Investor Unit Rights to
any transferee without the consent of the Managing General Partner, which
consent may be withheld in its sole and absolute discretion; provided,
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however, that any Investor may, at any time, without the consent of the
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Managing General Partner, (i) Transfer all or part of its Investor Unit
Rights to any Family Member, any Charity, any Controlled Entity, any
Affiliate, or any other Person to whom the Managing General Partner may
consent in its sole and absolute discretion, provided that the transferee
is, in any such case, a Qualified Transferee, or (ii) Pledge all or any
portion of its Investor Unit Rights to a lending institution, that is not
an Affiliate of such Investor, as collateral or security for a bona fide
loan or other extension of credit, and Transfer such pledged Investor Unit
Rights to such lending institution in connection with the exercise of
remedies under such loan or extension of credit; provided, further,
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however, that any Investor who owns Investor Unit Rights that were issued
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directly or indirectly in exchange for Units (as defined in the OP
Contribution Agreement, dated as of August 11, 1998 by and among the
Partnership and New Hanover Associates), may, at any time, without the
consent of the Managing General Partner, (i) Transfer all or part of such
Investor Unit Rights to any Family Member, any Charity, any Controlled
Entity, any Affiliate or any other Person to whom the Managing General
Partner may consent in its sole and absolute discretion, provided that (A)
any such Transfer is not a "sale" within the meaning of Section 2(3) of the
Securities Act, (B) the transferee is a Qualified Transferee or (C) the
Managing General Partner receives an opinion of counsel to the same effect
as the opinion described in Section 13.7.A(3) of this Agreement, (ii) upon
the death of an Investor, the Investor's estate may Transfer such Investor
Unit Rights in any Transfer that is not a "sale" within the meaning of
Section 2(3) of the Securities Act or (iii) Pledge all or any portion of
such Investor Unit Rights to a lending institution, that is not an
Affiliate of such Investor, as collateral or security for a bona fide loan
or other extension of credit, and Transfer such pledged Investor Unit
Rights to such lending institution in connection with the exercise of
remedies under such loan or extension of credit (any Transfer or Pledge
permitted by this proviso or the immediately preceding proviso is
hereinafter referred to as a "Permitted Investor Rights Transfer"). After
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such first Twelve-Month Period, each Investor, and each transferee of
Investor Unit Rights or transferee pursuant to a Permitted Investor Rights
Transfer, shall have the right to Transfer all or any portion of its
Investor Unit Rights to any Person, subject to the provisions of this
Section 13.7 hereof and to satisfaction of each of the following
conditions:
(1) Managing General Partner Right of First Refusal. The
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transferring Investor (or the Investor's estate in the event of the
Investor's death) shall give written notice of the proposed Transfer to the
Managing General Partner, which notice shall state (i) the identity of the
proposed transferee and (ii) the amount and type of consideration proposed
to be received for the Transferred Investor Unit Rights. The Managing
General Partner shall have ten (10) Business Days upon which to give the
Transferring Investor notice of its election to acquire the Investor Unit
Rights on the terms set forth in such notice. If it so elects, it shall
purchase the Investor Unit Rights on such terms within ten (10) Business
Days after giving notice of such election; provided, however, that in the
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event that the proposed terms involve a purchase for cash, the Managing
General Partner may at its election deliver in lieu of all or any portion
of such cash a note payable to the Transferring
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Investor at a date as soon as reasonably practicable, but in no event later
than one hundred eighty (180) days after such purchase, and bearing
interest at an annual rate equal to the total dividends declared with
respect to one (1) REIT Share for the four (4) preceding fiscal quarters of
the Managing General Partner, divided by the Value as of the closing of
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such purchase; provided, further, that such closing may be deferred to the
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extent necessary to effect compliance with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, if applicable, and any other applicable
requirements of law. If the Managing General Partner does not so elect, the
Transferring Investor may Transfer such Investor Unit Rights to a third
party, on terms no more favorable to the transferee than the proposed
terms, subject to the other conditions of this Section 13.7 or, in the
event of the death of any Investor who owns Investor Unit Rights that were
issued directly or indirectly in exchange for Units, such Investor's estate
may Transfer such Investor Unit Rights in any Transfer that is not a "sale"
within the meaning of Section 2(3) of the Securities Act.
(2) Qualified Transferee. Any Transfer of an Investor Unit Right
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shall be made only to a single Qualified Transferee; provided, however,
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that, for such purposes, all Qualified Transferees that are Affiliates, or
that comprise investment accounts or funds managed by a single Qualified
Transferee and its Affiliates, shall be considered together to be a single
Qualified Transferee; provided, further, that each Transfer meeting the
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minimum Transfer restriction of Section 13.7.A(4) hereof may be to a
separate Qualified Transferee; provided, further, however, that the
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limitations imposed by this Section 13.7.A(2) shall not apply to the
transfer of any Investor Unit Rights that were issued directly or
indirectly in exchange for Units.
(3) Opinion of Counsel. The Transferor shall deliver or cause to
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be delivered to the Managing General Partner an opinion of counsel
reasonably satisfactory to it to the effect that the proposed Transfer may
be effected without registration under the Securities Act and will not
otherwise violate any of the registration provisions of the Securities Act
and the regulations promulgated thereunder or violate any state
securities laws or regulations applicable to the Partnership or the
Investor Unit Rights Transferred; provided, that the Managing General
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Partner may, in its sole discretion, waive this condition upon the request
of the Transferor. If, in the opinion of such counsel, such Transfer would
require the filing of a registration statement under the Securities Act or
would otherwise violate any Federal or state securities laws or regulations
applicable to the Partnership or the Investor ▇▇▇▇
▇
Rights, the Managing General Partner may prohibit any Transfer otherwise
permitted under this Section 13.7 by an Investor.
(4) Minimum Transfer Restriction. Any Transferring Investor must
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Transfer not less than the lesser of (i) five hundred (500) Investor Unit
Rights or (ii) all of the remaining Investor Unit Rights owned by such
Transferring Investor; provided, however, that, for purposes of determining
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compliance with the foregoing restriction, all Investor Unit Rights owned
by Affiliates of an Investor shall be considered to be owned by such
Investor.
(5) Transferee Agreement to Effect a Redemption. Any proposed
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transferee shall deliver to the Managing General Partner a written
agreement reasonably satisfactory to the Managing General Partner to the
effect that the transferee will, within six (6) months after consummation
of an Investor Unit Right Transfer, tender its Investor Unit Rights for
Redemption in accordance with the terms of the Redemption rights provided
in Section 16.1 hereof.
(6) No Further Transfers. The transferee shall not be permitted
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to effect any further Transfer of the Investor Unit Rights, other than to
the Managing General Partner.
(7) Exception for Permitted Investor Rights Transfers. The
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conditions of Sections 13.7.A(1) through 13.7.A(6) hereof shall not apply
in the case of a Permitted Investor Rights Transfer.
It is a condition to any Transfer otherwise permitted hereunder (whether or
not such Transfer is effected during or after the first Twelve-Month
Period) that the transferee assumes by operation of law or express
agreement all of the obligations of the transferor Investor under this
Agreement with respect to such Transferred Investor Unit Right, and no such
Transfer (other than pursuant to a statutory merger or consolidation
wherein all obligations and liabilities of the transferor Investor are
assumed by a successor corporation by operation of law) shall relieve the
transferor Investor of its obligations under this Agreement without the
approval of the Managing General Partner, in its sole and absolute
discretion; any Transfer made without such an assumption by the transferee
shall be null, void and of no force or effect. In addition, any transferee
of any Transferred Investor Unit Right shall be subject to any and all
ownership limitations (including, without limitation, the Ownership Limit)
contained in the Charter that may limit or restrict such transferee's
ability to
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exercise its Redemption rights, including, without limitation, the
Ownership Limit."
Section 7. Amendment of Section 13.9.D. Section 13.9.D is hereby
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amended to replace all references to "this Section 13.8" therein with "this
Section 13.9."
Section 8. Amendment of Exhibit G. Exhibit G to the Agreement is
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hereby replaced in its entirety with Exhibit G attached hereto and by this
reference made a part hereof.
Section 9. Applicable Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law. In the event of a conflict between any
provision of this Amendment and any non-mandatory provision of the Securities
Act, the provisions of this Amendment shall control and take precedence.
Section 10. Counterparts. This Amendment may be executed in
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counterparts, all of which together shall constitute one agreement binding on
all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall become
bound by this Amendment immediately upon affixing its signature thereto.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
MANAGING GENERAL PARTNER:
WESTFIELD AMERICA, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Secretary
SPECIAL LIMITED PARTNERS:
By: WESTFIELD AMERICA, INC.,
as attorney-in-fact
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Secretary
Exhibit G
LIST OF EXCLUDED PROPERTIES AND SPECIFIED UNITS
1. Fee interest in the Trumbull Shopping Park, located in Trumbull,
Connecticut.
SPECIFIED UNITS: 21,430 Series A Partnership Preferred Units; and
6,155 Series B Partnership Preferred Units; and
9,499 Series C Partnership Preferred Units; and
15,832 Series D Partnership Preferred Units; and
1,671,951 Partnership Common Units.
2. Partnership interest relating to Meriden Square, located in Meriden,
Connecticut.
SPECIFIED UNITS: 32,059 Series A Partnership Preferred Units; and
9,209 Series B Partnership Preferred Units; and
14,211 Series C Partnership Preferred Units; and
23,685 Series D Partnership Preferred Units; and
2,501,269 Partnership Common Units.
3. Fee interest in the Connecticut Post Mall, located in Milford, Connecticut.
SPECIFIED UNITS: 26,836 Series A Partnership Preferred Units; and
7,708 Series B Partnership Preferred Units; and
11,896 Series C Partnership Preferred Units; and
19,826 Series D Partnership Preferred Units; and
2,093,673 Partnership Common Units.
4. Partnership interest relating to the Mission Valley Center, located in
Mission Valley, California.
SPECIFIED UNITS: 9,134 Series A Partnership Preferred Units; and
2,623 Series B Partnership Preferred Units; and
4,049 Series C Partnership Preferred Units; and
6,748 Series D Partnership Preferred Units; and
712,595 Partnership Common Units.
G-1
5. Partnership interest relating to Plaza Camino Real, located in San Diego
County, California.
SPECIFIED UNITS: 11,780 Series A Partnership Preferred Units; and
3,384 Series B Partnership Preferred Units; and
5,222 Series C Partnership Preferred Units; and
8,703 Series D Partnership Preferred Units; and
919,083 Partnership Common Units.
6. 0.10 Percent Interest in Vancouver Mall
SPECIFIED UNITS: 20 Series A Partnership Preferred Units; and
6 Series B Partnership Preferred Units; and
9 Series C Partnership Preferred Units; and
15 Series D Partnership Preferred Units; and
1,589 Partnership Common Units.
7. 50.0 Percent Interest in M-R St. ▇▇▇▇▇▇ ▇.▇.
SPECIFIED UNITS: 31 Partnership Common Units
G-2
