<PAGE>
EXHIBIT 10.28
ONE HUNDRED SEVENTY SECOND AMENDMENT
TO THE
SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP
THIS ONE
HUNDRED SEVENTY SECOND AMENDMENT TO THE SECOND AMENDED AND
RESTATED LIMITED PARTNERSHIP AGREEMENT OF
SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP (this "AMENDMENT") is made and
entered into April 15, 2003, to be
effective as of December 1, 2002
("EFFECTIVE DATE"), by and between SUN
COMMUNITIES, INC., a Maryland corporation
(the "GENERAL PARTNER"), as the
general partner of SUN COMMUNITIES
OPERATING LIMITED PARTNERSHIP, a Michigan
limited partnership (the "PARTNERSHIP"),
and the holders of Series B-3 Preferred
Units (as hereinafter defined) set forth on
Exhibit A hereto (collectively, the
"SERIES B-3 PREFERRED PARTNERS").
RECITALS
A. The
Series B-3 Preferred Partners are members of Woodside Terrace,
Ltd., an Ohio limited liability company
("WOODSIDE"). Woodside and the
Partnership are parties to that certain
Agreement to Lease with Option to
Purchase dated November 14, 1997, as
amended (the "LEASE AGREEMENT"), pursuant
to which the Partnership has an option to
purchase the Membership Interests (as
defined in the Lease Agreement) in
consideration for the issuance by the
Partnership of Series B-3 Preferred
Units.
B. The
Partnership now desires to exercise the option to purchase the
Membership Interests and issue the Series
B-3 Preferred Units effective as of
the Effective Date.
C. The
signatories hereto desire to amend that certain Second Amended
and
Restated Limited Partnership Agreement of
Sun Communities Operating Limited
Partnership, dated as of April 30, 1996, as
amended by those certain amendments
numbered one through one hundred seventy
one (collectively, as amended, the
"Agreement") as set forth herein; any
capitalized term not defined herein shall
have the respective meaning ascribed to it
in the Agreement.
C. Section
11 of the Agreement authorizes the General Partner, as the
holder of more than fifty percent (50%) of
the OP Units, to amend the Agreement.
NOW,
THEREFORE, in consideration of the foregoing, of the mutual
promises
set forth herein, and of other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties hereto, intending to
be legally bound, agree to continue the
Partnership and amend the Agreement as
follows:
1.
Admission of New Partners. As of the Effective Date, the Series
B-3
Preferred Partners have contributed the
Membership Interests to the Partnership
in exchange for the assumption by the
Partnership of certain debt, payment by
the Partnership of cash and the issuance by
the Partnership to the Series B-3
Preferred Partners of an aggregate of
62,700 Series B-3 Preferred Units. The
Series B-3 Preferred Units issued to the
Series B-3 Preferred Partners have been
duly issued and fully paid. The Series B-3
Preferred Partners are hereby
admitted to the Partnership as new Limited
Partners, and by execution of this
Amendment the Series B-3 Preferred Partners
have agreed to be bound by all of
the terms and conditions of the Agreement,
as amended hereby, and hereby
acknowledge receipt of a copy of
<PAGE>
the Agreement. Exhibit A of the Agreement
is hereby deleted in its entirety and
is replaced with EXHIBIT A to this
Amendment.
2.
Sections 3.1 and 3.2. Sections 3.1 and 3.2 of the Agreement are
hereby
deleted in their entirety and replaced with
the following:
"3.1 OP
UNITS
The Partners' interests in the Partnership are expressed in terms
of
OP Units
and each Partner has been issued OP Units corresponding to the
agreed
value of its capital contribution. OP Units consist of Common
OP
Units,
Preferred OP Units, Series A Preferred Units, Series B
Preferred
Units, Series
B-1 Preferred Units, Series B-2 Preferred Units and Series
B-3
Preferred Units.
3.2 COMMON
OP UNITS
The holders of the Common OP Units shall be entitled to receive
distributions in accordance with Section 4.3, after payment of all
accrued
(i)
Preferred Dividends, (ii) Series A Priority Return, (iii) Series
B
Priority
Return, (iv) Series B-1 Priority Return, (v) Series B-2
Priority
Return and
(vi) Series B-3 Priority Return. No distribution shall be made
in respect
of Common OP Units while any accrued (i) Preferred Dividends,
(ii)
Series A Priority Return, (iii) Series B Priority Return, (iv)
Series
B-1
Priority Return, (v) Series B-2 Priority Return or (vi) Series
B-3
Priority Return remains unpaid
unless all such unpaid amounts are paid
simultaneously with such distribution."
3. Section
4.2 (a)(v) of the Agreement is hereby deleted in its entirety
and replaced with the following:
"(v) fifth, with respect to OP Units other than Series A
Preferred
Units, pro
rata in proportion to the number of OP Units other than Series
A
Preferred Units, held by each such Partner as of the last day of
the
period for
which such allocation is being made; provided, however, that
the
profits allocated to any Preferred OP Units, Series B Preferred
Units,
Series B-1
Preferred Units, Series B-2 Preferred Units and Series B-3
Preferred
Units pursuant to this Section 4.2(b)(v) for any calendar year
shall not
exceed the amount of Preferred Dividends, Series B Priority
Return,
Series B-1 Priority Return, Series B-2 Priority Return and
Series
B-3
Priority Return, respectively, thereon for that calendar year, and
any
such excess profits remaining
after the application of such limitation
shall be
allocated to the holders of the Common OP Units, pro rata."
4. Section
8.2(a) of the Agreement is hereby deleted in its entirety and
replaced with the following:
"8.2
LIQUIDATING DISTRIBUTIONS; RESTORATION OF CAPITAL ACCOUNT
DEFICITS
Upon the liquidation of the Partnership or any Partner's interest
in
the
Partnership, within the meaning of the Allocation Regulations:
(a) The capital accounts of the holders of the OP Units shall
be
adjusted
to reflect the manner in which any unrealized income, gain,
loss
and
deduction inherent in the Partnership's property, which has not
previously
been reflected in the Partners' capital accounts, would be
allocated
among the Partners if there were a taxable disposition of such
property
at fair market
2
<PAGE>
value on
the date of distribution. Any resulting increase in the
Partners'
capital
accounts shall be allocated (i) first to the holders of the
Preferred
OP Units and Series A Preferred Units in proportions and
amounts
sufficient
to bring their respective capital account balances up to the
amount of
the Issue Prices of their respective Preferred OP Units and
Series A
Preferred Units plus accrued and unpaid Preferred Dividends or
Series A
Priority Return, as the case may be, thereon, (ii) second to
the
holders of
the Series B Cumulative Preferred Units in proportions and
amounts
sufficient to bring their respective capital account balances
up
to the
amount of the Issue Price of the Series B Cumulative Preferred
Units plus
accrued and unpaid Series B Priority Return, Series B-1
Priority
Return, Series B-2 Priority Return and Series B-3 Priority
Return, as
applicable, thereon, and (iii) third (if any) to the Common OP
Units. Any
resulting decrease in the Partners' capital accounts shall
first be
allocated (i) first to the holders of the Common OP Units in
proportions and amounts sufficient to reduce their respective
capital
account
balances to zero, (ii) second to the holders of Series B
Cumulative
Preferred Units in proportions and amounts sufficient to reduce
their
respective capital account balances to zero, (iii) third to the
holders of
the Preferred OP Units and Series A Preferred Units in
proportions and amounts sufficient to reduce their respective
capital
account
balances to zero, and (iv) (if any) to the General Partner.
Liquidating distributions shall be made in accordance with the
positive
capital
account balances of the Partners, after giving effect to such
adjustment
and other capital account adjustments for the current year, as
provided
in the Allocation Regulations.
5. Section
14. Section 14 of the Agreement is hereby amended as follows:
(a) The second sentence of the definition of "OP UNITS" is
hereby
deleted in
its entirety and replaced with the following: "OP Units consist
of Common
OP Units, Preferred OP Units, Series A Preferred Units, Series
B
Preferred
Units, Series B-1 Preferred Units, Series B-2 Preferred Units
and Series
B-3 Preferred Units."
(b) The following new definitions are inserted in Section 14
(Definitions) so as to preserve alphabetical order:
"SERIES B-3 ISSUANCE DATE" shall mean the date the Series B-3
Preferred Units are issued. For purposes of the One Hundred and
Seventy Second Amendment to the Agreement, the Series B-3
Issuance
Date shall be December 1, 2002.
"SERIES B-3 PREFERRED PARTNERS" means the holders of Series
B-3 Preferred Units set forth on Exhibit A hereto, as it may be
amended from time to time, and their respective successors and
permitted assigns.
"SERIES B-3 PREFERRED UNITS" shall have the meaning set forth
therefor in Section 17.2 hereof.
"SERIES B-3 PRIORITY RETURN" shall have the meaning set forth
therefor in Section 17.1 hereof.
"SERIES B-3 REDEMPTION PRICE" shall mean $100.00 per Series
B-3 Preferred Unit redeemed.
6. Section
17 of the Agreement is hereby deleted in its entirety and
replaced with the following:
3
<PAGE>
"17.
SERIES B CUMULATIVE PREFERRED UNITS.
SECTION 17.1 DEFINITIONS. The term "SERIES B CUMULATIVE
PREFERRED
UNITS"
shall mean the Series B Preferred Units, the Series B-1
Preferred
Units, the
Series B-2 Preferred Units and the Series B-3 Preferred Units.
The term
"SERIES B PARITY PREFERRED UNITS" shall mean any class or
series
of OP
Units of the Partnership now or hereafter authorized, issued or
outstanding and expressly designated by the Partnership to rank on
parity
with the
Series B Preferred Units, Series B-1 Preferred Units, Series
B-2
Preferred
Units and Series B-3 Preferred Units with respect to
distributions and rights upon voluntary or involuntary
liquidation,
winding-up
or dissolution of the Partnership. The term "SERIES B PRIORITY
RETURN"
shall mean an amount equal to (i) 7.0% per annum for the First
24
Month
Period, (ii) 7.5% per annum for the Second 24 Month Period,
(iii)
8.0% per
annum for the First 12 Month Period, and (iv) 9.0% per annum
for
the Second
12 Month Period (determined on the basis of a 365 day year), of
the stated
amount of $100.00 per Series B Preferred Unit multiplied by the
number of
outstanding Series B Preferred Units, cumulative to the extent
not
distributed for any given distribution period pursuant to Section
4.3
hereof.
The term "SERIES B-1 PRIORITY RETURN" shall mean an amount
equal
to (i)
6.85% per annum commencing on and including the Series B-1
Issuance
Date and
ending on and including October 15, 2003, (ii) 7.2% per annum
commencing
on and including October 16, 2003 and ending on and including
April 15,
2006, (iii) 7.6% per annum commencing on and including April
16,
2006 and
ending on and including April 15, 2008, (iv) 8.36% per annum
commencing
on and including April 16, 2008 and ending on and including
April 15,
2010, and (v) 9.19% per annum thereafter (determined on the
basis of a
365 day year), of the stated amount of $100.00 per Series B-1
Preferred
Unit multiplied by the number of outstanding Series B-1
Preferred
Units, cumulative to the extent not distributed for any given
distribution period pursuant to Section 4.3 hereof. The term
"SERIES B-2
PRIORITY
RETURN" shall mean an amount equal to (i) 6.0% per annum
commencing
on and including the Series B-2 Issuance Date and ending on and
including
January 2, 2007, and (ii) 7.0% per annum thereafter (determined
on the
basis of a 365 day year), of the stated amount of $45.00 per
Series
B-2
Preferred Unit multiplied by the number of outstanding Series
B-2
Preferred
Units, cumulative to the extent not distributed for any given
distribution period pursuant to Section 4.3 hereof. The term
"SERIES B-3
PRIORITY
RETURN" shall mean an amount equal to (i) 7.625% per annum
commencing
on and including the applicable Series B-3 Issuance Date and
ending on
and including the day immediately preceding the fifth
anniversary of the Series B-3 Issuance Date, (ii) 7.75% per
annum
commencing
on and including the fifth anniversary of the Series B-3
Issuance
Date and ending on and including the day immediately preceding
the 30
month anniversary thereafter and (iii) 8.0% per annum
thereafter
(determined on the basis of a 365 day year), of the stated amount
of
$100.00
per Series B-3 Preferred Unit multiplied by the number of
outstanding Series B-3 Preferred Units, cumulative to the extent
not
distributed for any given distribution period pursuant to Section
4.3
hereof.
SECTION 17.2 DESIGNATION AND NUMBER. A series of OP Units in
the
Partnership designated as the "Series B Cumulative Preferred Units"
is
hereby
established. Of such Series B Cumulative Preferred Units there
shall be
designated Series B Preferred Units ("SERIES B PREFERRED
UNITS"),
Series B-1
Preferred Units ("SERIES B-1 PREFERRED UNITS"), Series B-2
Preferred
Units ("SERIES B-2 PREFERRED UNITS") and Series B-3 Preferred
Units
("SERIES B-3 PREFERRED UNITS"). The number of Series B
Preferred
Units
shall be 35,637, the number of Series B-1 Preferred Units shall
be
46,117,
the number of Series B-2 Preferred Units shall be 100,000 and
the
number of
Series B-3 Preferred Units shall be 62,700.
4
<PAGE>
SECTION
17.3 DISTRIBUTIONS.
(a) Payment of
Distributions.
(i) Subject to
the rights of holders of Series A Preferred
Units, Parity Preferred Units, Preferred OP Units and Series B
Parity Preferred Units as to the payment of distributions
pursuant
to Sections 4.3, 8.2 and 16.3 of the Agreement, holders of Series
B
Preferred
Units, Series B-1 Preferred Units, Series B-2 Preferred
Units and Series B-3 Preferred Units shall be entitled to
receive,
when, as and if declared by the Partnership acting through the
General Partner, out of the Partnership's available cash, the
Series
B Priority Return, Series B-1 Priority Return, Series B-2
Priority
Return and Series B-3 Priority Return, respectively.
(ii) All distributions
shall be cumulative, shall accrue from
the original date of issuance and will be payable (i) quarterly
(such quarterly periods for purposes of payment and accrual will
be
the quarterly periods ending on the dates specified in this
sentence) in arrears, on March 31, June 30, September 30 and
December 31 of each year, and (ii) in the event of a redemption
of
Series B Cumulative Preferred Units, on the redemption date (each
a
"SERIES B CUMULATIVE PREFERRED UNIT DISTRIBUTION PAYMENT DATE").
The
amount of the distribution payable for any period will be
computed
on the basis of a 365-day year and for any period shorter than
a
full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed based on
the
ratio of the actual number of days elapsed in such period to
the
actual number of days in such quarterly period. If any date on
which
distributions are to be made on the Series B Cumulative
Preferred
Units is not a Business Day (as defined in Section 14), then
payment
of the distribution to be made on such date will be made on the
next
succeeding day that is a Business Day (and without any interest
or
other payment in respect of any such delay) except that, if
such
Business Day is in the next succeeding calendar year, such
payment
shall be made on the immediately preceding Business Day, in
each
case with the same force and effect as if made on such date.
Distributions on the Series B Cumulative Preferred Units will
be
made to the holders of record of the Series B Cumulative
Preferred
Units on the relevant record dates to be fixed by the
Partnership
acting through the General Partner, which record dates shall in
no
event exceed fifteen (15) Business Days prior to the relevant
Series
B Cumulative Preferred Unit Distribution Payment Date.
(b)
Distributions Cumulative. Distributions on the Series B
Cumulative
Preferred Units will accrue whether or not the terms and
provisions
of any agreement of the Partnership, including any agreement
relating
to its indebtedness at any time prohibit the declaration,
setting
aside for
payment or current payment of distributions, whether or not the
Partnership has earnings, whether or not there are funds legally
available
for the
payment of such of such distributions and whether or not such
distributions are authorized. Accrued but unpaid distributions on
the
Series B
Cumulative Preferred Units will accumulate as of the Series B
Cumulative Preferred Unit
Distribution Payment Date on which they first
become
payable. Distributions on account of arrears for any past
distribution periods may be declared and paid at any time,
without
reference
to a regular Series B Cumulative Preferred Unit Distribution
Payment
Date to holders of record of the
5
<PAGE>
Series B
Cumulative Preferred Units on the record date fixed by the
Partnership acting through the General Partner which date shall not
exceed
fifteen
(15) Business Days prior to the payment date. Accumulated and
unpaid
distributions will not bear interest.
(c) Priority as
to Distributions.
(i) So long as
any Series B Cumulative Preferred Units are
outstanding, no distribution of cash or other property shall be
authorized, declared, paid or set apart for payment on or with
respect to any class or series of OP Units of the Partnership
ranking junior as to the payment of distributions or rights upon
a
voluntary or involuntary liquidation, dissolution or winding-up
of
the Partnership to the Series B Cumulative Preferred Units
(collectively, "SERIES B JUNIOR UNITS"), nor shall any cash or
other
property be set aside for or applied to the purchase, redemption
or
other acquisition for consideration of any Series B Cumulative
Preferred Units, any Series B Parity Preferred Units or any Series
B
Junior Units, unless, in each case, all distributions accumulated
on
all Series B Cumulative Preferred Units and all classes and
series
of outstanding Series B Parity Preferred Units have been paid
in
full. The foregoing sentence will not prohibit (a)
distributions
payable solely in OP Units ranking junior to the Series B
Cumulative
Preferred Units as to the payment of distributions and rights upon
a
voluntary or involuntary liquidation, dissolution or winding-up
of
the Partnership, (b) the conversion of Series B Junior Units or
Series B Parity Preferred Units into OP Units of the
Partnership
ranking junior to the Series B Cumulative Preferred Units as to
distributions and rights upon a voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, or
(c)
the redemption of OP Units corresponding to any Junior Stock
(as
defined in the Series A Articles Supplementary) to be purchased
by
the General Partner pursuant to Article VII of the Charter to
preserve the General Partner's status as a real estate
investment
trust, provided that such redemption shall be upon the same terms
as
the corresponding purchase pursuant to Article VII of the
Charter.
(ii) So long as
distributions have not been paid in full (or
a sum sufficient for such full payment is not irrevocably
deposited
in trust for immediate payment) upon the Series B Cumulative
Preferred Units, all distributions authorized and declared on
the
Series B Cumulative Preferred Units and all classes or series
of
outstanding Series B Parity Preferred Units shall be authorized
and
declared so that the amount of distributions authorized and
declared
per Series B Cumulative Preferred Unit and such other classes
or
series of Series B Parity Preferred Units shall in all cases bear
to
each other the same ratio that accrued distributions per Series
B
Cumulative Preferred Unit and such other classes or series of
Series
B Parity Preferred Units (which shall not in
