|
Exhibit 10.1
FIFTH AMENDMENT TO THE SECOND AMENDMENT AND
RESTATEMENT OF AGREEMENT OF LIMITED PARTNERSHIP OF
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
THIS FIFTH
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 February 1, 2005, and is made by, between, and
among TAUBMAN CENTERS, INC., a Michigan corporation (“
TCO ”), TG PARTNERS LIMITED PARTNERSHIP, a
Delaware limited partnership (“ TG ”), and
TAUB-CO MANAGEMENT, INC., a Michigan corporation (“
Taub-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 Taub-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 Taub-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.
C.
On September 3, 1999,
TCO, TG, and Taub-Co entered into a Second Amendment to the Second
Amended and Restated Partnership Agreement to provide for the
contribution of preferred capital in exchange for a preferred
equity interest.
D.
On May 2, 2003, TCO, TG,
and Taub-Co entered into a Third Amendment to the Second Amended
and Restated Partnership Agreement to provide for the issuance of
Series E Units of Partnership Interest in exchange for a
contribution of cash to the Partnership.
E.
On December 31, 2003,
TCO, TG and Taub-Co entered into a Fourth Amendment to the Second
Amended and Restated Partnership Agreement (the Second Amended and
Restated Partnership Agreement, as amended, is hereinafter referred
to as the “ Partnership Agreement ”), to change
the term of the Partnership and to amend Schedule E to the
Partnership Agreement.
F.
On October 14, 2004,
G.K. Las Vegas Limited Partnership (“ G.K. Las Vegas
”) converted sixty-two thousand four hundred ninety-nine
(62,499) Series E Units of Partnership Interest to sixty-two
thousand four hundred ninety-nine (62,499) Units of Partnership
Interest in the Partnership and immediately accepted the Continuing
Offer with respect to all such Units of Partnership
Interest.
G.
On January 11, 2005,
G.K. Las Vegas Limited Partnership (“ G.K. Las Vegas
”) converted six hundred ninety-four thousand three hundred
seventy-five (694,375) Series E Units of Partnership Interest to
six hundred ninety-four thousand three hundred seventy-five
(694,375) Units of Partnership Interest in the Partnership and
immediately accepted the Continuing Offer with respect to all such
Units of Partnership Interest.
H.
G.K. Las Vegas has
requested the right to, and the Partnership has agreed that G.K.
Las Vegas may, without any conditions or restrictions, convert all
of the remaining Series E Units of Partnership Interest to Units of
Partnership Interest in the Partnership.
I.
On the date of this
Amendment, all the remaining Series E Units were converted to Units
of Partnership Interest in the Partnership, and as authorized under
Section 13.11 of the Partnership Agreement, the parties hereto wish
to further amend the Partnership Agreement to evidence the
conversion of all of the remaining Series E Units of Partnership
Interest to Units of Partnership Interest in the Partnership and
for certain other reasons.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree that
the Partnership Agreement is amended as follows:
1.
Article II of the Partnership Agreement is hereby amended to delete
the following definitions: “Continuing Offer,”
“Conversion Notices,” “NYSE,”
“Organic Change,” “Series E Units of Partnership
Interest,” “Series E Partnership Interest
Certificate” and “Series E Partnership Interest
Certificates,” “TCO Common Stock,” “Trading
Day,” and “TRG Change of Control.”
2.
Article II of the Partnership Agreement is hereby further amended
by deleting the definitions of “Fractional Unit,”
“Limited Partner” and “Limited Partners,”
“Partner” and “Partners,”
“Partnership Interest Ledger,” “Record
Partner,” and “Required Distribution Amount” in
their entirety, and by inserting the following new definitions in
the place thereof:
| |
“ Fractional Unit ” means a portion of, or
less than the whole of, a Unit of Partnership Interest. |
| |
“ 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 any permitted transferee of
a Parity Preferred Partner who has been admitted to the Partnership
as a limited partner pursuant to Section 8.2 hereof, 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 8.2 hereof. |
| |
“ 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 any
permitted transferee of a Parity Preferred Partner who has been
admitted to the Partnership as a limited partner pursuant to
Section 8.2 hereof, and (iv) any Person or Persons to whom a
Partnership Interest has been issued pursuant to Section 8.4 hereof
and who is admitted to the Partnership pursuant to Section 8.2
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. |
| |
“ 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, in each such case, has become a Partner
in the Partnership pursuant to Section 8.4 hereof. Notwithstanding
the foregoing, a Parity Preferred Partner is a Record
Partner.” |
2
| |
“ Required Distribution Amount ” means an
amount, as set forth in the Annual Budget, equal to the aggregate
cash (or cash per Unit of Partnership Interest) to be distributed
to the Partners for such Partnership Fiscal Year, as such amount
may be increased or decreased from time to time by the Managing
General Partner, in consultation with the Manager, but in no event
less than the Estimated Minimum Distribution
Amount.” |
3.
The heading to Article IV
is hereby amended to delete the reference to “Series E Units
of Partnership Interest;"immediately following “Units of
Partnership Interest;” and to delete “Series E
Partnership Interest Certificates;” immediately following
“Partnership Interest Certificates.”
4.
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 Partnership
Interest (other than TCO’s Preferred Equity and other than a
Parity Preferred Partner’s Parity Preferred Equity) shall be
divided into units (herein referred to collectively as the “
Units of Partnership Interest ” and individually as a
“ Unit of Partnership Interest ”). Each
Partner’s Partnership Interest (other than TCO’s
Preferred Equity and other than a Parity Preferred Partner’s
Parity Preferred Equity) 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 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
|
3
|
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. Solely for purposes of
calculating Percentage Interests, no interest in the Partnership
that is Preferred Equity or Parity Preferred Equity shall be taken
into account.”
|
5.
Section 4.7 is hereby
amended by deleting “; Series E Partnership Interest
Certificates” from the heading thereof and by deleting
“(a)” before the first paragraph thereof.
6. &nbs
|
