SECOND AMENDMENT TO THE SECOND AMENDMENT AND
RESTATEMENT OF AGREEMENT OF LIMITED PARTNERSHIP OF
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
THIS SECOND AMENDMENT (this "Amendment") TO THE SECOND AMENDMENT AND
RESTATEMENT OF AGREEMENT OF LIMITED PARTNERSHIP OF THE TAUBMAN REALTY GROUP
LIMITED PARTNERSHIP (the "Second Amended and Restated Partnership Agreement"),
is entered into effective as of September 3, 1999, and is made by, between, and
among TAUBMAN CENTERS, INC., a Michigan corporation ("TCO"), TG PARTNERS LIMITED
PARTNERSHIP, a Delaware limited partnership ("TG"), and XXXX-CO MANAGEMENT,
INC., a Michigan corporation ("Xxxx-Co"), who, as the Appointing Persons,
pursuant to Section 13.11 of the Second Amended and Restated Partnership
Agreement, have the full power and authority to amend the Second Amended and
Restated Partnership Agreement on behalf of all of the partners of The Taubman
Realty Group Limited Partnership, a Delaware limited partnership (the
"Partnership") with respect to the matters herein provided. (Capitalized terms
used herein that are not herein defined, shall have the meanings ascribed to
them in the Second Amended and Restated Partnership Agreement.)
Recitals:
A. On September 30,1998, TCO, TG, and Xxxx-Co entered into the Second
Amended and Restated Partnership Agreement as an amendment and restatement of
the then-existing partnership agreement (the "Amended and Restated Partnership
Agreement"), as authorized under Section 13.11 of the Amended and Restated
Partnership Agreement.
B. On March 4, 1999, TCO, TG, and Xxxx-Co entered into a First Amendment to
the Second Amended and Restated Partnership Agreement to facilitate a proposed
pledge of Units of Partnership Interest in the Partnership (the Second Amended
and Restated
Partnership Agreement, as so amended, is herein referred to as the
"Partnership Agreement").
C. As authorized under Section 13.11 of the Partnership Agreement, the
parties hereto wish to further amend the Partnership Agreement to provide for
the contribution of preferred capital in exchange for a preferred equity
interest, and for certain other purposes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Article II of the Partnership Agreement is hereby amended by inserting
the following new definitions therein, in alphabetical order:
"Adjusted Capital Account Balance" means a Partner's Capital Account
balance increased by the sum of (i) any amount of cash or property such
Partner is unconditionally obligated to restore upon liquidation of the
Partnership and (ii) such Partner's share of Partnership Minimum Gain and
Partner Nonrecourse Debt Minimum Gain.
"Designation, Distribution, Redemption, Exchange, and Consent Provisions"
means those certain provisions to be set forth in an Annex attached hereto
and incorporated herein by reference, which Annex serves as a further
amendment to the Partnership Agreement.
"Parity Preferred Equity" means, on any date, an amount equal to the
aggregate contributions to the capital of the Partnership made pursuant to
Section 4.1(c) hereof, to the extent such Parity Preferred Equity has not
been redeemed or converted to Additional Interests pursuant to Section
8.1(c) hereof. Each contribution of Parity Preferred Equity shall be
designated as a separate series, e.g., the 9% Series C Cumulative
Redeemable Preferred Equity is called "Series C" because such series is
convertible into Series C Preferred Stock (as defined in the Restated
Articles of Incorporation of TCO).
"Parity Preferred Equity Balances" means, on any date and as to any series
of Parity Preferred Equity, an amount equal to the then aggregate Capital
Account balances of the Parity Preferred Partners of such series. Reference
to a Parity Preferred Equity Balance includes any one of the Parity
Preferred Equity Balances.
"Parity Preferred Partner" and "Parity Preferred Partners" are (i) that
Person or those Persons who shall contribute Parity Preferred Equity to the
Partnership pursuant to Section 4.1(c) hereof, and (ii) TCO in the event
that it acquires any portion or all of the Partnership Interest(s) of the
Person(s) identified in clause (i) hereof.
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"Parity Preferred Return" means, as to each series of Parity Preferred
Equity, the cumulative return to a series based upon the product of the
Parity Preferred Rate for such series and the amount of capital contributed
with respect to such series (taking into account any redemptions or
conversions to Additional Interests, pursuant to Section 8.1(c) hereof)
during the period to which the Parity Preferred Return relates, commencing
on the date of the contribution of such Parity Preferred Equity pursuant to
Section 4.1(c) hereof, determined on the basis of a year of three hundred
sixty (360) Days, consisting of twelve (12), 30-day months, cumulative to
the extent not paid in any given quarter pursuant to Section 5.2(a)(i)
hereof. Any Unpaid Parity Preferred Return shall not itself bear interest
or be subject to any Parity Preferred Rate. Reference to Parity Preferred
Returns includes each Parity Preferred Return.
"Parity Preferred Rate" means a fixed rate per annum (together with all
other provisions), specified by the Appointing Persons in the Designation,
Distribution, Redemption, Exchange, and Consent Provisions, as to a given
series.
"Parity Related Issue" means the series of preferred shares of TCO into
which a series of Parity Preferred Equity may be converted in accordance
with the Designation, Distribution, Redemption, Exchange, and Consent
Provisions for such series.
"Unallocated Parity Preferred Return" means, with respect to a series of
Parity Preferred Equity, the excess of the Parity Preferred Return with
respect to such series over the cumulative amount of allocations pursuant
to Section 5.1(b)(1)(B) hereof with respect to such series.
"Unpaid Parity Preferred Return" means, with respect to a series of Parity
Preferred Equity, the excess of the Parity Preferred Return with respect to
such series of Parity Preferred Equity over the cumulative amount of
distributions pursuant to Section 5.2(a)(i) with respect to such series."
2. Article II of the Partnership Agreement is hereby further amended by
deleting the definitions of "Indemnified Person", "Limited Partner" and "Limited
Partners", "Non-Managing Partners", "Partner" and "Partners", "Partnership
Interest Ledger", "Qualified Institutional Transferee", and "Record Partner" in
their entirety, and by inserting the following new definitions in the place
thereof:
"Indemnified Person" means each Partner (other than a Parity Preferred
Partner), each officer, each member of the TCO Board, each member of any
committee established by the TCO Board, each Person designated or delegated
by a Partner (other than a Parity Preferred Partner), an officer,
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the TCO
Board, or a member of a committee established by the TCO Board, and each
employee, partner, principal, shareholder, agent, director, or officer of a
Partner (other than a Parity Preferred Partner).
"Limited Partner" and "Limited Partners" are (i) those Persons identified
as such on Schedule A hereto, in their capacities as limited partners of
the Partnership, (ii) the successors to any portion or all of the
Partnership Interest of those Persons identified as Limited Partners on
Schedule A hereto who are admitted to the Partnership as limited partners
pursuant to Section 8.2 hereof, (iii) any Parity Preferred Partner, and
(iv) any Person or Persons to whom an Additional Interest as a limited
partner is issued pursuant to Section 8.4 hereof and who is admitted to the
Partnership as a limited partner pursuant to Section 8.4 hereof.
"Non-Managing Partners" means all of the Partners other than the Managing
General Partner and other than any Parity Preferred Partner.
"Partner" and "Partners" are (i) those Persons named in the Preamble to
this Agreement, (ii) the successors to any portion or all of the
Partnership Interest of those Persons named in the Preamble to this
Agreement who are admitted as a Partner or Partners pursuant to Section 8.2
hereof, (iii) any Parity Preferred Partner, and (iv) any Person or Persons
to whom a Partnership Interest has been issued pursuant to Section 8.4
hereof.
"Partnership Interest Ledger" means a ledger maintained at the principal
office of the Partnership that shall set forth, among other things, the
name and address of each Partner and the nature of the Partnership Interest
of each Partner, the number of Units of Partnership Interest held by each
Partner, if any, and the current Percentage Interest of each Partner, if
any.
"Qualified Institutional Transferee" means (a) so long as its ownership
interest in the Partnership consists solely of a Partnership Interest as a
Parity Preferred Partner, any Parity Preferred Partner, and (b) any
transferee of a Partnership Interest that is or are (i) a pension fund,
profit-sharing fund or similar fund, or an organization or organizations
exempt from federal income taxes pursuant to the provisions of Section
501(a) of the Code and described in Section 501(c)(3) of the Code, in each
such case possessing more than Fifty Million Dollars ($50,000,000) in
assets, (ii) an organization described in Section 509 of the Code, and
having a Partner as a "substantial contributor" (as defined in Section
507(d)(2) of the Code), (iii) pooled funds for Xxxxx plans, individual
retirement plans, profit-sharing plans, pension plans or similar tax-exempt
plans, in each such case possessing more than One Hundred Million Dollars
($100,000,000) in assets, (iv) insurance companies or banks, in each such
case possessing more than Two Billion Dollars ($2,000,000,000) in assets,
(v) a domestic entity organized as a mutual fund or registered investment
company in each case possessing more than One Hundred Million Dollars
($100,000,000) in assets, (vi) any other Person (a "QIT Entity"), all the
Beneficial Interests in which at the time of such Transfer and thereafter
are owned by one or more of the foregoing, or (vii) a QIT Entity that has
as one (1) or more of its constituent partners, a foreign entity that is
organized as a
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mutual fund or investment company that is not Primarily
Engaged and, in each such case, that possesses more than One Hundred
Million Dollars ($100,000,000) in assets, provided that such QIT Entity is
at no time a nonresident alien, foreign corporation, foreign trust, or
foreign estate, within the meaning of Section 7701 of the Code; provided
that a Transfer to such transferee will not cause a prohibited transaction
(as defined in Section 4975(c) of the Code or Section 406 of ERISA) to
occur.
"Record Partner" means a Person set forth as a Partner on the books and
records of the Partnership. No Person other than a Person that was a
Partner on the Effective Date shall be a Record Partner until such Person
has become a substitute Partner in the Partnership pursuant to Section 8.2
hereof, or has acquired an Additional Interest or an Incentive Interest
pursuant to Section 8.4 hereof and has become a Partner in the Partnership
pursuant to Section 8.4 hereof. Notwithstanding the foregoing, a Parity
Preferred Partner is a Record Partner."
3. Section 3.3 of the Partnership Agreement is hereby amended by inserting
the following new paragraph (e) therein, and by relettering the succeeding
paragraph accordingly:
"(e) Each Parity Preferred Partner owning a series of Parity Preferred
Equity covenants and agrees that it will not Transfer its rights to a
Parity Preferred Return or the corresponding Parity Preferred Equity other
than as set forth in Section 8.1(c) hereof and in accordance with and only
to the extent permitted by the Designation, Distribution, Redemption,
Exchange, and Consent Provisions relating to the applicable series."
4. Section 4.1 of the Partnership Agreement is hereby amended by deleting
paragraph (c) thereof in its entirety, and by inserting the following new
paragraphs (c) and (d) in the place thereof:
(c) With the approval of the Appointing Persons, a Person may
contribute, from time to time, amounts to the capital of the Partnership as
Parity Preferred Equity.
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(d) The Capital Account balances of the Partners as of September 3,
1999 shall be as set forth opposite their respective names on Schedule C
attached hereto."
5. Section 4.6 of the Partnership Agreement is hereby deleted in its
entirety, and the following new Section 4.6 is inserted in the place thereof:
"Section 4.6 Partnership Interests; Units of Partnership Interest;
Percentage Interests.
(a) For the purpose of this Agreement, the term "Partnership Interest"
means, with respect to a Partner, such Partner's right to the allocations
(and each item thereof) specified in Section 5.1 hereof and distributions
from the Partnership, its share of expenditures of the Partnership
described in Section 705(a)(2)(B) of the Code (or treated as such under
Regulations Section 1.704-1(b)(2)(iv)(i)) and its rights of management,
consent, approval, or participation, if any, as provided in this Agreement.
Each Partner's (other than TCO's Preferred Equity and other than a Parity
Preferred Partner's Parity Preferred Equity) Partnership Interest shall be
divided into units (herein referred to collectively as the "Units of
Partnership Interest" and individually as a "Unit of Partnership Interest")
and shall be represented by that number of Units of Partnership Interest
set forth opposite such Partner's name on Schedule A attached hereto, as
such Schedule may be amended from time to time pursuant to Section 4.8,
Article VIII or Article X hereof. The Partnership may issue additional
Units of Partnership Interest in accordance with Section 8.4 hereof. The
Partnership and TCO shall conduct their respective operations, to the
extent they are able to do so, so that one Unit of
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Partnership Interest
will be equal in value to one (1) share of TCO's common stock.
(b) For the purpose of this Agreement, the term "Percentage Interest"
means, with respect to each Partner (other than a Parity Preferred
Partner), the percentage set forth opposite such Partner's name on Schedule
A attached hereto, as such Schedule may be amended from time to time
pursuant to Section 4.8, Article VIII or Article X hereof, and shall at any
time be equal to a fraction, the numerator of which is the aggregate number
of Units of Partnership Interest held by such Partner, and the denominator
of which is the aggregate number of all Units of Partnership Interest that
are issued and outstanding. For purposes of calculating Percentage
Interests, no interest in the Partnership that is Preferred Equity or
Parity Preferred Equity shall be taken into account."
6. Section 5.1 of the Partnership Agreement is hereby amended by deleting
paragraph (b) thereof in its entirety, and by inserting the following new
paragraph (b) in the place thereof:
"(b) Except as otherwise provided in Section 5.1(d) or 5.1(f) hereof,
the Profits and Losses of the Partnership (and each item thereof) for each
Partnership Fiscal Year shall be allocated among the Partners in accordance
with this Section 5.1(b).
(1) Profits shall be allocated:
(A) first, to TCO, in an amount equal to the excess, if any,
of the cumulative amount of Losses allocated to TCO pursuant to
Section 5.1(b)(2)(C) hereof over the cumulative amount of Profits
allocated to TCO pursuant to this Section 5.1(b)(1)(A); and then
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(B) second, to the Parity Preferred Partners, in an amount
equal to the Unallocated Parity Preferred Return with respect to
each series (proportionate as to such Unallocated Parity
Preferred Return among each series); and then
(C) third, to the Parity Preferred Partners, in an amount
equal to the excess, if any, of the cumulative amount of Losses
allocated to the Parity Preferred Partners pursuant to Section
5.1(b)(2)(B) hereof over the cumulative amount of Profits
allocated to the Parity Preferred Partners pursuant to this
Section 5.1(b)(1)(C) (proportionate as to the amount of such
excess among each series); and then
(D) fourth, to the Partners in an amount equal to the
excess, if any, of the cumulative amount of Losses allocated to
the Partners pursuant to Section 5.1(b)(2)(D) hereof over the
cumulative amount of Profits allocated to the Partners pursuant
to this Section 5.1(b)(1)(D) (proportionate as to such excess
amounts); and then
(E) fifth, to the Partners holding Units of Partnership
Interest in accordance with their respective Percentage
Interests; provided, however, that Profits for any Partnership
Fiscal Year allocated to the Parity Preferred Partners may be
limited if so provided in the Designation, Distribution,
Redemption, Exchange, and Consent Provisions of the applicable
series.
(2) Losses shall be allocated:
(A) first, to Partners holding Units of Partnership Interest
until the Adjusted Capital Account Balances of all such
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Partners
are reduced to zero, excluding, for purposes of calculating TCO's
Adjusted Capital Account Balance, the Preferred Equity (in
proportion to such positive Adjusted Capital Account Balances
(excluding the Preferred Equity)); and then
(B) second, to the Parity Preferred Partners until the
Adjusted Capital Account Balances of the Parity Preferred
Partners are reduced to zero (in proportion to such positive
Adjusted Capital Account Balances); and then
(C) third, to TCO until the Adjusted Capital Account Balance
of TCO, including the Preferred Equity, is reduced to zero; and
then
(D) fourth, to the General Partners or any Limited Partner
which has made an election under Section 11.1(d) hereof, in
proportion to their respective Percentage Interests."
7. Section 5.2 of the Partnership Agreement is hereby amended by deleting
that portion of paragraph (a) thereof prior to clause (i) thereof and clause (i)
thereof in their entirety, by inserting the following in the place thereof, and
by renumbering the succeeding clauses accordingly:
"(a) Subject, on liquidation of the Partnership or on liquidation of
substantially all of the assets of the Partnership to Section 11.1(a)
hereof, and to Section 11.1(e) hereof on liquidation of a Partner's
interest in the Partnership that is not in connection with the liquidation
of the Partnership, for the term of the Partnership, as set forth in
Section 1.5 hereof:
(i) a cash distribution shall be made to the Parity Preferred
Partners of each series in an amount equal to the Unpaid Parity
Preferred
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Return for such series, at such times as are specified in
the Designation, Distribution, Redemption, Exchange, and Consent
Provisions (such distributions to be proportionate among the series);
provided, however, that no distribution shall be made to a Parity
Preferred Partner which would reduce its Adjusted Capital Account
Balance below zero."
8. The following new paragraph (c) is hereby inserted in Section 5.2 of the
Partnership Agreement, immediately after paragraph (b) thereof:
"(c) Except as specifically provided in Section 5.2(a)(i) or Section
11.1(a)(5) hereof and in the Designation, Distribution, Redemption,
Exchange, and Consent Provisions, a Parity Preferred Partner shall have no
right to any Partnership distributions."
9. Section 5.3 of the Partnership Agreement is hereby amended by deleting
the last paragraph thereof in its entirety and by inserting the following new
paragraph in the place thereof:
"In the event of a redemption by TCO, in whole or in part, of any
series of preferred shares that constitutes a Related Issue through the
issuance of common equity, TCO shall convert its Preferred Equity (or a
portion thereof) (exclusive of any accrued but unpaid dividends), to an
Additional Interest by contributing to the capital of the Partnership all
of its right, title, and interest, in and to the payment of any future
Guaranteed Payment on that portion of the converted Preferred Equity, with
the effect that the portion of the converted Preferred Equity and related
right to the payment of any future Guaranteed Payment shall be converted to
an Additional Interest in accordance with Section 8.4(a) hereof, such
Additional Interest to be provided by a proportionate reduction in the
Percentage Interests of all of the
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Partners, as provided in Section 8.4(a)
hereof. Any such redemption shall be effected so that, following such
redemption, the number of Units of Partnership Interest then held by TCO
shall equal the number of shares of TCO's common stock then outstanding.
Upon and to the extent of the conversion of Preferred Equity to Additional
Interests in accordance with this Section 5.3, Schedule A to this Agreement
shall be amended accordingly. In the event of a redemption by TCO, in whole
or in part, of any series of preferred shares that constitutes a Related
Issue through the issuance of preferred equity, TCO shall convert that
portion of its Preferred Equity equal to the portion of the Related Issue
that was redeemed (exclusive of any accrued but unpaid dividends) by
appropriate amendment, whether by Annex or otherwise, to Preferred Equity
having terms equivalent to the then newly issued preferred equity through
which the Related Issue was redeemed."
10. Section 6.1 of the Partnership Agreement is hereby amended by inserting
the following new paragraph immediately following existing paragraph (b)
thereof:
"A Parity Preferred Partner as to a given series of Parity Preferred
Equity shall have no voting rights or rights of consent, approval or the
like as to any matter in respect of the Partnership including, without
limitation, as to its constituency, properties or operations, unless and to
the extent specified in the Designation, Distribution, Redemption,
Exchange, and Consent Provisions relating to the applicable series."
11. Section 6.6 of the Partnership Agreement is hereby deleted in its
entirety and the following new Section 6.6 is inserted in the place thereof:
"Section 6.6 Absence of Authority of Non-Managing Partners; Limited Rights
of Parity Preferred Partners.
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(a) Except as specifically provided in this Agreement, the
Non-Managing Partners and the Parity Preferred Partners, as such, shall
take no part in, nor have the right to take part in, nor interfere in, nor
have the right to interfere or participate in, in any manner, the conduct
or control of the business of the Partnership or have any right or
authority to act for or on behalf of the Partnership.
(b) The Parity Preferred Partners shall have only the following rights
as to all matters in respect of the Partnership, including, without
limitation, as to its constituency, properties, and operations: (i) rights
of notice, inspection, and reports as provided generally to Partners in
accordance with Sections 1.2, 1.3, 1.4, 5.5, 5.7(a), and 6.10 hereof, (ii)
rights of distributions and allocations as provided in Sections 5.1,
5.2(a)(i), and 11.1(a)(5) hereof, and in the Designation, Distribution,
Redemption, Exchange, and Consent Provisions of the applicable series, (iv)
rights of Transfer as provided in Sections 8.1(a) and 8.1(c) hereof and in
the Designation, Distribution, Redemption, Exchange, and Consent Provisions
of the applicable series, and (v) such other rights as are provided in the
Designation, Distribution, Redemption, Exchange, and Consent Provisions of
the applicable series. No Parity Preferred Partner shall have any right to
Series B Preferred Stock (as defined in the Restated Articles of
Incorporation of TCO, as amended)."
12. Section 8.1 of the Partnership Agreement is hereby amended by deleting
paragraph (b) thereof in its entirety, by inserting the following new paragraphs
(b) and (c) in the place thereof, and by relettering the succeeding paragraphs
accordingly:
"(b) A Partner (other than TCO and other than a Parity Preferred
Partner) may Transfer all or any portion of its Partnership Interest (but
not less
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than one (1) Unit of Partnership Interest) to any other Partner
(other than a Parity Preferred Partner), or to one (1) or more members of
such Partner's Immediate Family, or to a Family Trust, or to any Qualified
Institutional Transferee (other than a Parity Preferred Partner), or to an
entity consisting of or owned entirely by one (1) or more of the foregoing
Persons, or to the Partnership, or, in the event that a Partner is a
partnership, or other entity (other than TCO and other than a Qualified
Institutional Transferee that is not a QIT Entity), to one (1) or more of
the constituent partners, or owners of such Partner or other entity, or to
one (1) or more members of the respective Immediate Families or Family
Trusts of the constituent partners, or owners of such Partner or other
entity, or to any Qualified Institutional Transferee (other than a Parity
Preferred Partner), or to an entity consisting of or owned entirely by one
(1) or more of the foregoing Persons, or to the Partnership, provided that,
in each case, the Managing General Partner has determined by written
notification (a "Transfer Determination"), to the transferring Partner,
which Transfer Determination shall not be unreasonably withheld and shall
be deemed given if not refused within seven (7) Business Days of the date
of notice thereof to the Partnership, that either (A) such Transfer will
not cause (i) any lender of the Partnership or an Owning Entity to hold in
excess of ten percent (10%) of the Percentage Interests or any other
percentage of the Percentage Interests that would, pursuant to the
Regulations under Section 752 of the Code or any successor provision, cause
a loan by such lender to constitute Partner Nonrecourse Debt or (ii) a
violation of any partnership agreement or other document forming or
governing an Owning Entity, or (B) the Managing General Partner has
determined to waive such requirement in its
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reasonable discretion, after
having determined that the Transfer will not materially adversely affect
the Partnership, its assets or any Partner, or constitute a violation of
the Partnership Law, or any other law to which the Partnership or an Owning
Entity is subject.
In addition to the foregoing, in the event that a Partner is a
partnership or other entity (other than the Managing General Partner and
other than a Qualified Institutional Transferee that is not a QIT Entity),
such Partner may permit a Transfer of an interest in such Partner to any
constituent partner or owner of such Partner, to one (1) or more members of
any constituent partner's or owner's Immediate Family or a Family Trust
with respect to any constituent partner or owner, or to any Qualified
Institutional Transferee (other than a Parity Preferred Partner), or to any
Partner (other than a Parity Preferred Partner), provided that, in each
case, the Managing General Partner has made a Transfer Determination prior
to the proposed Transfer.
In addition to the foregoing, in connection with a financing
transaction, any Record Partner (other than TCO) may pledge some or all of
the Units of Partnership Interest that such Record Partner owns on the
effective date of the pledge (the "Pledge Units") to any Person (the
"Pledgee"), subject to the restrictions set forth in this paragraph of
Section 8.1(b). Before effecting the pledge of any Pledge Units, the
pledging Partner must first receive a Transfer Determination with respect
to the pledge, and the Pledgee must irrevocably agree, pursuant to a
written instrument acceptable to the Managing General Partner, that (A)
unless (i) the Pledgee is a Person described in the preceding paragraphs of
this Section 8.1(b) as a Person to whom a Partner may Transfer its
Partnership Interest (a "Permitted
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Transferee") and (ii) the Managing
General Partner has agreed, in writing, to the admission of the Pledgee as
a substitute Partner with respect to some or all of the Pledge Units upon a
default under the loan to be secured by the pledge of Pledge Units, (B) the
Pledgee (1) shall not, at any time, have or exercise any rights as a
Partner with respect to any of the Pledge Units (including any right to
consent or vote with respect to any matter affecting the Partnership),
other than (a) the right to receive any distributions from the Partnership
that are or may be payable with respect to the Pledge Units as and when the
same become payable and (b) the right to receive the return of any
contribution to which the pledging Partner would be entitled with respect
to the Pledge Units, and (2) shall not, upon the pledging Partner's default
or otherwise, have any right (or claim or attempt to exercise any right) to
Transfer (or cause the Transfer of) the Pledge Units (or any interest in
the Pledge Units) other than to TCO in exchange for Equity Shares or
another Permitted Transferee.
(c) The Partnership shall have the right to redeem the Parity
Preferred Equity of a given series in accordance with the Designation,
Distribution, Redemption, Exchange, and Consent Provisions for such series.
Each Parity Preferred Partner shall have the right to exchange such
Partner's Parity Preferred Equity of a given series for shares of the
Parity Related Issue in accordance with the Designation, Distribution,
Redemption, Exchange, and Consent Provisions relating to such series. A
Parity Preferred Partner owning a series of Parity Preferred Equity may
Transfer its Parity Preferred Equity and right to any Parity Preferred
Return only to TRG and/or TCO pursuant to the foregoing provisions of this
Section 8.1(c) and in accordance with the
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Designation, Distribution,
Redemption, Exchange, and Consent Provisions relating to the applicable
series.
In the event of the redemption by TCO, in whole or in part, of any
series of preferred shares that constitutes a Parity Related Issue through
the issuance of common equity, TCO shall convert its Parity Preferred
Equity (or a portion thereof) (exclusive of any accrued but unpaid
dividends), to an Additional Interest by contributing to the capital of the
Partnership all of its right, title, and interest, in and to the payment of
any future Parity Preferred Return on that portion of the converted Parity
Preferred Equity, with the effect that the portion of the converted Parity
Preferred Equity and related right to the payment of any future Parity
Preferred Return shall be converted to an Additional Interest in accordance
with Section 8.4(a) hereof, such Additional Interest to be provided by a
proportionate reduction in the Percentage Interests of all of the Partners,
as provided in Section 8.4(a) hereof. Any such redemption shall be effected
so that, following such redemption, the number of Units of Partnership
Interest then held by TCO shall equal in value the number of shares of
TCO's common stock then outstanding. Upon and to the extent of the
conversion of Preferred Equity to Additional Interests in accordance with
this Section 5.3, Schedule A to this Agreement shall be amended
accordingly. In the event of a redemption by TCO, in whole or in part, of
any series of preferred shares that constitutes a Parity Related Issue
through the issuance of preferred equity, TCO shall convert that portion of
its Parity Preferred Equity equal to the portion of the Parity Related
Issue that was redeemed (exclusive of any accrued but unpaid dividends) by
appropriate amendment, whether by Annex or otherwise, to Parity Preferred
Equity having
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terms equivalent to the newly issued preferred equity through
which the Parity Related Issue was redeemed. Upon and to the extent of the
conversion of any portion of a Parity Preferred Equity Balance to
Additional Interests in accordance with this Section 8.1(c), Schedule A to
this Agreement shall be amended accordingly."
13. Section 10.1 of the Partnership Agreement is hereby amended by deleting
paragraph (b) thereof in its entirety, and by inserting the following new
paragraph (b) in the place thereof:
"(b) Upon the occurrence of a Disabling Event or an Event of
Withdrawal in respect of a General Partner the Partnership shall dissolve;
provided, however, that the Partnership shall not be dissolved if the
remaining General Partners, by an affirmative, unanimous vote of such
General Partners, elect to continue the Partnership in all respects
pursuant to this Agreement, and the Partnership Interest of the Disabled
General Partner shall automatically become that of a limited partner except
to the extent such Disabled General Partner, at such time or any time
thereafter, assigns its Partnership Interest to another General Partner,
subject to the provisions of Section 8.1 hereof; and such Disabled General
Partner or Successor shall thereupon have the same interest in the
Partnership capital, profits, losses, and distributions as the Disabled
General Partner, but otherwise shall have and be subject to all the rights,
obligations, restrictions, and attributes of a limited partner, all as
provided in this Agreement. Upon the occurrence of a Disabling Event or an
Event of Withdrawal in respect of the last remaining General Partner, the
Partnership shall dissolve; provided, however, that the Partnership shall
not be dissolved if within ninety (90) Days after such Disabling Event or
Event of
17
Withdrawal (the "Ninety Day Period") all Partners (other than any
Parity Preferred Partner) agree in writing to continue the business of the
Partnership and to the appointment, effective as of the date of such
Disabling Event or Event of Withdrawal, of one (1) or more general partners
of the Partnership as successor general partner(s) ("Successor General
Partner") to act as, and be in all respects under this Agreement, a general
partner. If any such election is made, the Partnership shall continue
pursuant to this Agreement for the term provided in Section 1.5 hereof, and
the Partnership Interest of the Disabled General Partner in the Partnership
(except to the extent such interest is held by the Successor General
Partner) shall automatically become that of a limited partner; and such
Representative or Successor to the Disabled General Partner (subject, in
the case of a Representative or Successor, to Sections 8.1 and 8.2 hereof)
shall thereupon have the same interest in the Partnership capital, profits,
losses, and distributions as the Disabled General Partner, but otherwise
(except to the extent a Successor to the Disabled General Partner shall be
the Successor General Partner) shall have and be subject to all the rights,
obligations, restrictions, and attributes of a limited partner, all as
provided in this Agreement. In the event of the selection of a Successor
General Partner, as provided in this Section 10.1(b), (1) each of the
Partners, on behalf of itself and its permitted successors and assigns,
HEREBY AGREES AND CONSENTS to the admission of any such Successor General
Partner as herein provided; and (2) the then Partners shall execute and
deliver such instruments and documents, and shall take such actions, as
shall be necessary or advisable, in the sole and absolute discretion of the
Successor General Partner to carry out the provisions of this Article X,
including, but not limited
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to, (x) the execution of conformed counterparts
of this Agreement, amendments to this Agreement, and/or an amended limited
partnership agreement, (y) the execution and filing of certificates of
discontinuance, assumed or fictitious name certificates, certificates of
co-partnership, and/or certificates of limited partnership, and/or amended
certificates of limited partnership, and (z) the execution of such
instruments and documents (including, but not limited to, deeds, bills of
sale, and other instruments of conveyance and/or assignments of Partnership
Interest) as shall be necessary or advisable to effect any necessary
transfer (nominal or otherwise) of the property, assets, investments,
rights, liabilities, and business of the Partnership or of a Partnership
Interest and/or to accomplish the purpose and intent of this Article X. In
the event that a Partner shall fail to execute any such instruments or
documents or fail to take any such actions, when requested to do so by the
Successor General Partner, the Successor General Partner and/or any Person
designated by the Successor General Partner, as attorney-in-fact for each
of the Partners, shall have the right and power for, on behalf of, and in
the name of each of the Partners to execute any and all such instruments
and documents and take any and all such actions."
14. Section 11.1 of the Partnership Agreement is hereby amended by deleting
paragraph (a) thereof in its entirety, and by inserting the following new
paragraph (a) in the place thereof:
"(a) Upon the dissolution of the Partnership, the Managing General
Partner, or in the event that the Managing General Partner has suffered a
Disabling Event or an Event of Withdrawal and there are one or more
remaining General Partners, such remaining General Partner(s), or in the
event
19
that there is no remaining General Partner, a Person selected by
those Partners holding in the aggregate a Percentage Interest of in excess
of fifty percent (50%) (the Managing General Partner or such Person so
selected is herein referred to as the "Liquidator"), shall proceed to wind
up the affairs of the Partnership, liquidate the property and assets of the
Partnership, and terminate the Partnership, and the proceeds of such
liquidation shall be applied and distributed in the following order of
priority:
(1) to creditors, to the extent otherwise permitted by law, in
satisfaction of liabilities of the Partnership (whether by payment or
by making a reasonable provision for payment) other than obligations
of the Partnership to the Partners and liabilities for distribution to
Partners on account of their respective interests in the Partnership;
and then
(2) to the satisfaction of all obligations of the Partnership to
Partners other than the Guaranteed Payment and other than any Parity
Preferred Return; and then
(3) to TCO in an amount equal to any accrued but unpaid
Guaranteed Payment (proportionate among each series); and then
(4) to TCO in an amount equal to that portion of its Capital
Account attributable to its Preferred Equity (proportionate among each
series); and then
(5) to the Parity Preferred Partners in an amount equal to their
respective Parity Preferred Equity Balances (proportionate with
respect to the amount of such balances among each series); and then
(6) to the Partners in accordance with and in proportion to their
positive Capital Account balances. For this purpose, the
20
determination
of the Partners' Capital Account balances shall be made after
adjustment to reflect the allocation of all Profits, Losses, and items
in the nature of income, gain, expense, or loss under Section 5.1
hereof, and all distributions to the Partners pursuant to Section
5.2(a), Section 5.2(b), Section 5.3, Section 11.1(a)(4), and Section
11.1(a)(5) hereof, in each case for all Partnership Fiscal Years
through and including the Partnership Fiscal Year of liquidation.
Subject to the provisions of clause (1) of this Section 11.1(a), all
distributions pursuant to this Section 11.1(a) shall be made by the
end of the Partnership Fiscal Year of liquidation (or if later, within
ninety (90) Days after the date of such liquidation)."
15. The attached Schedule C is inserted in the Partnership Agreement in the
place of the existing Schedule C.
16. Section and clause references within the Partnership Agreement are
renumbered accordingly.
17. Except as expressly set forth herein, the terms and provisions of the
Partnership Agreement continue unmodified and are hereby confirmed and ratified.
18. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
19. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware.
20. This Amendment may be executed in two (2) or more counterparts, all of
which as so executed shall constitute one (1) Amendment, binding on all of the
parties hereto, notwithstanding that all the parties are not signatory to the
original or the same counterpart; provided, however, that no provision of this
Amendment shall become effective
21
and binding unless and until all parties hereto
have duly executed this Amendment, at which time this Amendment shall then
become effective and binding as of the date first above written.
IN WITNESS WHEREOF, the undersigned Appointing Persons, in accordance with
Section 13.11 hereof, on behalf of all of the Partners, have entered into this
Amendment as of the date first above written.
TAUBMAN CENTERS, INC., a Michigan
corporation
By: /s/ Xxxx X. Xxxxx
Its: Executive Vice President
TG PARTNERS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: TG Michigan, Inc., a Michigan
corporation, Managing General
Partner
By: /s/ Xxxxxx X. Xxxxxxx
Its: President
XXXX-CO MANAGEMENT, INC., a
Michigan corporation
By: /s/ Xxxx X. Xxxxx
Its: Executive Vice President
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