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 �
