OPERATING AGREEMENT OF TAUBMAN LAND ASSOCIATES LLC a Delaware limited liability company
Exhibit
10
(ab)
TAUBMAN
LAND ASSOCIATES LLC
a
Delaware
limited liability company
TAUBMAN
LAND ASSOCIATES LLC
TABLE
OF
CONTENTS
1.1 Formation
1.2 Name
1.3 Purposes
and
Powers
1.4 Term
1.5 Principal
Place of
Business; Agent For Service of Process
1.6 Filing
of
Certificates
1.7 Nature
of
Membership Interests
1.8 Liability
of
Members
1.9 Taxation
as a
Partnership
1.10 Representations,
Warranties, and Covenants
1.11 Authority
and
Liability of Members
ARTICLE
II
DEFINITIONS
ARTICLE
III CAPITAL
ACCOUNTS; CAPITAL CONTRIBUTIONS
3.1 Members’
Capital
Accounts
3.2 Percentage
Interests
3.3 Capital
Contributions
3.4 Additional
Funds;
Anticipated Financing
3.5 Restrictions
Relating to Capital
ARTICLE
IV
ALLOCATIONS OF PROFIT AND LOSS AND DISTRIBUTION OF AVAILABLE CASH
4.1 Members’
Shares
of
Profits
4.2 Members’
Shares
of
Losses
4.3 Special
Allocations
4.4 Allocation
for
Federal Income Tax Purposes
4.5 Distributions
of
Available Cash
4.6 Bank
Acounts
4.7 Books
of Account
and Reports
4.8 Tax
Returns and
Audits
i
4.9 Company
Fiscal
Year
ARTICLE
V
MANAGEMENT; EXECUTION OF LEGAL INSTRUMENTS; OTHER VENTURES
5.1 Management;
Authority of the Managing Member; Limitations on Authority
5.2 Response
of the
Members
5.3 Compensation
of
Members and Affiliates
5.4 Authority
for
Execution of Instruments
5.5 Management
Agreement
5.6 Indemnification
of
the Members; Limit on Liability
5.7 Bank
Accounts
5.8 Activities
and
Competing Ventures of the Members and Affiliates
5.9 Tax
Matters
Member
5.10 Specific
Provisions
Relating to Real Estate Investment Trust Status
ARTICLE
VI
TRANSFERS OF MEMBERSHIP INTERESTS
6.1 General
Restrictions on Dispositions
6.2 Subsitution
of
Members
6.3 Intentionally
Omitted
6.4 Right
of First
Refusal
6.5 Buy-Sell
6.6 Sale
of the
Property
6.7 Closings
6.8 Pledge
of
Membership Interests
ARTICLE
VII
DISABLING EVENT IN RESPECT OF A MEMBER; SUCCESSION OF INTERESTS
7.1 Disabling
Event in
Respect of a Member
7.2 Single
Respresentative to Act on Behalf of Successors
7.3 Succession
by
Individuals to Membership Interests of Members
7.4 References
to
"Member" and "Members" in the Event of Successors
7.5 Waiver
of
Dissolution if Transfer is in full Compliance with Agreement; Negation of Right
to Dissolve Except as Herein Provided; No Withdrawal
7.6 Determination
of
Fair Market Value of Membership Interests
ARTICLE
VIII
WINDING UP, LIQUIDATION, AND TERMINATION OF THE COMPANY
8.1 Liquidation
of the
Assets of the Company and Disposition of the Proceeds Thereof
8.2 Cancellation
of
Certificates
ARTICLE
IX
MISCELLANEOUS
ii
9.1 Exculpation
9.2 Notices
9.3 Applicable
Law
9.4 Word
Meanings;
Gender
9.5 Section
Titles
9.6 Entire
Agreement
9.7 Waiver
9.8 Separability
of
Provisions
9.9 Binding
Agreement
9.10 Equitable
Remedies
9.11 Partition
9.12 Amendment
9.13 No
Third Party
Rights Created Hereby
9.14 Liability
of
Members
9.15 Additional
Acts and
Instruments
9.16 Organization
Expenses
9.17 Agreement
in
Counterparts
9.18 Attorneys-in-Fact
9.19 Consents,
Approval,
Etc.
Exhibit
A Property
Description
Exhibit
B Members
of
Taubman
TAUBMAN
LAND ASSOCIATES LLC
a
Delaware
limited liability company
THIS
OPERATING AGREEMENT
(this
“Agreement”)
is made and
entered into effective as of October 20, 2006, by and between TRG SUNVALLEY
LLC,
a Delaware limited liability company (“TRG
LLC”),
and TILC-SV,
LLC, a Michigan limited liability company (“Taubman”)
(individually a
“Member”
and
together the
“Members”).
ARTICLE
I
ORGANIZATION
1.1 Formation.
The Company was
formed pursuant to the applicable laws of the State of Delaware including the
Delaware Limited Liability Company Act as in effect in the State of Delaware,
as
the same may be amended from time to time (all of such laws being hereinafter
referred to as the “Limited
Liability Company Law”),
by the filing
of a Certificate of Formation of the Company with the Secretary of State of
the
State of Delaware on October 5, 2006. The Company shall continue upon the terms
and conditions herein set forth.
1.2 Name.
The name of the
Company is “Taubman Land Associates LLC.” The Company may also conduct its
business under one or more assumed names if so authorized by the
Members.
1.3 Purposes
and Powers.
The Company has
been organized pursuant to the Limited Liability Company Law and in accordance
with this Agreement solely in order to (i) acquire, hold, own, develop, improve,
lease, finance, refinance, sell, transfer, exchange, and encumber the fee simple
interest in that certain property consisting of approximately sixty-eight (68)
acres located in Concord, California, which has been ground leased in part
to
SunValley Shopping Center LLC, as successor-in-interest, by various assignments,
of Del ▇. ▇▇▇▇ Corporation, an Arizona corporation, and ground leased in part
to
Sears, ▇▇▇▇▇▇▇ and Co., and which has been developed as a regional retail
shopping center known as “SunValley Shopping Center” (as more particularly
described on Exhibit
A
hereto, the “Property”),
and any other
property that the Company shall acquire, directly or indirectly, that is related
to the Property, and (ii) engage in any other activities in respect of any
Company assets as the Members shall determine in accordance with the Limited
Liability Company Law or as otherwise set forth in this Agreement. The Company
shall have all such powers as are necessary or appropriate to carry out its
purposes as described in this Section 1.3. Except as expressly and specifically
provided in this Agreement, no Member shall have any authority to act for,
bind,
commit, or assume any obligation or responsibility on behalf of the Company,
its
properties, or the other Member.
1.4 Term.
The term of the
Company commenced on the date of the initial filing of the Certificate of
Formation of the Company and shall end, and the Company shall dissolve, on
the
first to occur of (i) the occurrence of any event which would, under the Limited
Liability Company Law (notwithstanding the provisions of this Agreement) or
under the terms of this Agreement, result in the dissolution of the Company;
provided, however, that the term of the Company shall not end upon the
occurrence of such an event if the Company is reconstituted
1
or
otherwise
continues as provided in this Agreement, (ii) cessation of the business of
the
Company in the ordinary course, or (iii) the determination by the Members to
dissolve the Company. No Member shall have the unilateral right to terminate
and
dissolve the Company prior to the end of its term as provided in this Section
1.4.
1.5 Principal
Place of Business; Agent For Service of Process.
The principal
office of the Company shall be located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and/or such other address(es) as may be designated from
time to time by the Managing Member with written notice thereof to the
Non-Managing Member. The name and address of the registered agent for service
of
process on the Company in the State of Delaware is Corporation Service Company,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
Person and address as shall be designated by the Managing Member, with written
notice to the Non-Managing Member.
1.6 Filing
of Certificates.
The Members
hereby agree to execute, file and record all such other certificates and
documents, including amendments to the Certificate of Formation of the Company
and applications to qualify as a foreign limited liability company, and to
do
such other acts as the Managing Member deems appropriate to comply with all
legal requirements necessary for the formation, continuation, and operation
of a
limited liability company, the ownership of property, and the conduct of
business under the laws of the State of Delaware, the State of California,
and
any other jurisdiction in which the Company may own property or conduct
business.
1.7 Nature
of Membership Interests.
Membership
Interests in the Company shall be personal property for all purposes. All
property owned by the Company, whether real or personal, tangible or intangible,
shall be deemed to be owned by the Company as an entity. No Member,
individually, shall have ownership of such property.
1.8 Liability
of Members.
Unless otherwise
provided by law or expressly assumed in writing, a Person who is a Member shall
not be liable for the acts, debts or liabilities of the Company.
1.9 Taxation
as a Partnership.
The Members
intend that the Company shall be taxed as a partnership, pursuant to Subchapter
K of the Code, for federal, state, and local income tax purposes, and agree
to
report all Company items of income, gain, loss, deduction and credit in
accordance with that Subchapter.
1.10 Representations,
Warranties, and Covenants.
(a) TRG
LLC hereby
represents and warrants to Taubman as follows:
(i) TRG
LLC is a
Delaware limited liability company, duly formed, validly existing
and in
good standing under the laws of the State of Delaware.
(ii) This
Agreement has
been duly authorized, validly executed, and constitutes
the
binding obligation of and is enforceable against TRG LLC in accordance
with its
terms. TRG LLC has full power, authority, and capacity to enter into
this Agreement
and to carry out its obligations as described in this
Agreement.
2
(iii) No
litigation or
proceedings, including, without limitation arbitration proceedings,
are
pending or, to the best knowledge of TRG LLC, threatened against TRG
LLC or any of
its Affiliates which, if adversely determined, could individually or in the
aggregate have an
adverse effect
on the consummation and the performance of this Agreement by TRG
LLC.
(iv) TRG
LLC is not a
"foreign person” within the meaning of the Foreign Investment in Real Property
Tax Act of 1980. as amended.
(v) TRG
LLC is wholly
owned by TRG.
(b) Taubman
hereby
represents, warrants, and covenants to TRG LLC as follows:
(i) Taubman
is a
Delaware limited liability company, duly formed, validly existing and in good
standing under the laws of the State of Delaware.
(ii) This
Agreement has
been duly authorized, validly executed, and constitutes the binding obligation
of and is enforceable against Taubman in accordance with its terms. Taubman
has
full power, authority, and capacity to enter into this Agreement, and to carry
out its obligations as described in this Agreement.
(iii) No
litigation or
proceedings, including, without limitation arbitration proceedings, are pending
or, to the best knowledge of Taubman, threatened against Taubman or any of
its
Affiliates which, if adversely determined, could individually or in the
aggregate have an adverse effect on the consummation and the performance of
this
Agreement by Taubman.
(iv) Taubman
is not a
"foreign person" within the meaning of the Foreign Investment in Real Property
Tax Act of 1980, as amended.
(v) The
current members
of Taubman are identified on Exhibit B attached hereto.
(c) The
representations, warranties, and covenant in this Section 1.10 shall survive
the
formation and the termination of the Company.
Section1.11 Authority
and Liability of Members. Except
as otherwise
provided in this Agreement, no Member shall have any authority to act for,
bind,
commit, or assume any obligation or responsibility on behalf of the Company,
its
properties, or the other Member. No Member, in its capacity as a Member under
this Agreement, shall be responsible or liable for any indebtedness or
obligation of the other Member, nor shall the Company be responsible or liable
for any indebtedness or obligation of any Member, incurred either before or
after the execution and delivery of this Agreement by such Member.
ARTICLE
II
DEFINITIONS
“Accountant”
is
defined in
Section 4.8 hereof.
“Adjustments”
is
defined in
Section 7.6 hereof.
3
“Adjustment
Notice”
is
defined in
Section 7.6 hereof.
“Affiliate”
means (i) with
respect to any individual, any member of such individual’s Immediate Family
and/or a Family Trust with respect to such individual, and any entity in which
such individual and/or his Affiliate(s) own, directly or indirectly, twenty-five
percent (25%) or more of any class of Equity Security or of the aggregate
Beneficial Interest of all beneficial owners, or in which such individual or
his
Affiliate is a managing general partner or a managing member, or which is
Controlled By such individual and/or his Affiliates, directly or indirectly;
and
(ii) with respect to any Person (other than an individual), any Person (other
than an individual) which Controls, is Controlled By, or is Under Common Control
With, such Person, and any individual who is a general partner, or managing
member, or who directly or indirectly Controls such Person.
“Agreement”
is
defined in the
Preamble hereto.
“Auditor”
is
defined in
Section 4.8 hereof.
"Available
Cash"
means the excess
of the Company's cash and cash equivalents over the amount of cash needed by
the
Company, as reasonably determined by the Managing Member, to (1) service its
debts and obligations to Third Parties, (2) service its debts and obligations
to
the Members and their Affiliates as provided in this Agreement, (3) maintain
adequate capital and reserves for, by way of example and not limitation, working
capital and reasonably foreseeable needs of the Company, and (3) conduct its
business and carry out its purposes.
"Bankruptcy"
as to any Person
means (i) applying for or consenting to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, administrator, liquidator, or
the
like of itself or of all or a substantial portion of its assets, (ii) admitting
in writing its inability, or being generally unable or deemed unable under
any
applicable law, to pay its debts as such debts become due, (iii) convening
a
meeting of creditors for the purpose of consummating an out-of-court
arrangement, or entering into a composition, extension, or similar arrangement,
with creditors in respect of all or a substantial portion of its debts, (iv)
making a general assignment for the benefit of its creditors, (v) placing itself
or allowing itself to be placed, voluntarily or involuntarily, under the
protection of the law of any jurisdiction relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, (vi) taking
any action for the purpose of effecting any of the foregoing, or (vii) if a
proceeding or case shall be commenced against such Person in any court of
competent jurisdiction, seeking (a) the liquidation, reorganization,
dissolution, winding-up, or composition or readjustment of debts, of such
Person, (b) the appointment of a trustee, receiver, custodian, administrator,
liquidator, or the like of such Person or of all or a substantial portion of
such Person's assets, or (c) similar relief in respect of such Person under
any
law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed or unstayed for a period of ninety (90) Days, or an order, judgment,
or decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect for a period of sixty (60) Days, or an order
for
relief or other legal instrument of similar effect against such Person shall
be
entered in an involuntary case under such law and shall continue unstayed for
a
period of sixty (60) Days.
“Beneficial
Interest” means
an interest,
whether as partner, joint venturer, member, stockholder, cestui
que
trust,
beneficiary of a
trust, or otherwise, a contract right or a legal or equitable position under
or
by which the possessor participates in the economic or other results of the
business organization to which such interest, contract right, or position
relates.
4
“Best
Efforts”
means
that the
obligated party shall make a diligent, commercially reasonable, and good faith
effort to accomplish the applicable objective. Such obligation, however, does
not require the expenditure of funds or the incurrence of any liability on
the
part of the obligated party, nor does it require that the obligated party act
in
a manner which would otherwise be contrary to prudent business judgment or
normal commercial practices in order to accomplish the objective. The fact
that
the objective is not actually accomplished is no indication that the obligated
party did not in fact utilize its Best Efforts in attempting to accomplish
the
objective.
“Book
Value”
is
defined in
Section 3.1(e) hereof.
“Business
Day”
means
any day
except a Saturday, a Sunday, or a legal holiday in San Francisco, California,
and on which commercial banks are open for business in San Francisco,
California.
“Buyer”
is
defined in
Section 6.4(a) hereof.
“Buy-Sell
Offer”
is
defined in
Section 6.5(a) hereof.
“Capital
Account”
is
defined in
Section 3.1 hereof.
“Capital
Contribution”
means
the initial
amount of cash or the net fair market value of property contributed to the
capital of the Company by a Member, increased by any additional contributions
of
cash or the net fair market value of property made to the capital of the Company
by such Member in accordance with the provisions of this Agreement. Any
reference to the Capital Contribution of a Member shall include the Capital
Contributions made by a predecessor-in-interest of such Member.
"Change
of
Control Event"
means (i) any
loss of the right of A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, any member of his Immediate Family,
any
heir of the foregoing, any trust for the benefit of the foregoing and any
partnership or limited liability company or corporation Controlled By some
or
all of the foregoing (for any reason other than a voluntary sale of shares
of
Taubman Centers, Inc. by one (1) or more of the foregoing Persons) to nominate
at least three (3) members of the Board of Directors, or (ii) the acquisition
by
any person or group or persons (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934. as amended, other than A.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, any members of his Immediate Family, any heir of the foregoing,
any trust for the benefit of any of the foregoing, any private charitable
foundation, or any partnership, limited liability company or corporation owned
or Controlled By some or all of the foregoing, of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934,
as amended) of forty percent (40%) or more of the outstanding voting capital
stock of Taubman Centers, Inc.
“Code”
means
the
Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provision of succeeding law).
“Communication”
and
“Communications”
are
defined in
Section 9.2(a) hereof.
“Company”
means
Taubman
Land Associates LLC, a Delaware limited liability company.
“Contribution
Notice”
is
defined in
Section 3.4(d) hereof.
5
“Control”
means
(and its
correlative terms “Controlled
By”
and
“Under
Common
Control With”)
with respect to
any corporation, partnership, limited liability company, trust, or other
business organization, possession, directly or indirectly, by the applicable
individual or individuals, entity or entities, of the power to direct or cause
the direction of the management and policies thereof, whether through the
ownership of voting securities, by contract, or otherwise.
“Day”
or
“Days”
means
each
calendar day, including Saturdays, Sundays, and legal holidays; provided,
however, that if the Day on which a period of time for consent or approval
or
other action ends is not a Business Day, such period shall end on the next
Business Day.
“Defaulting
Member”
is
defined in
Section 3.4(e) hereof.
“Deficit
Member”
is
defined in
Section 3.4(b) hereof.
“Depreciation”
means
for each
Fiscal Year of the Company or other period, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable under the Code with
respect to an asset for such year or other period, except that if the Book
Value
of an asset differs from its adjusted basis for federal income tax purposes
at
the beginning of such year or other period, Depreciation shall be an amount
which bears the same ratio to such beginning Book Value as the federal income
tax depreciation, amortization, or other cost recovery deduction for such year
or other period bears to such beginning adjusted tax basis; provided, however,
that if the federal income tax depreciation, amortization, or other cost
recovery deduction for such year is zero, Depreciation shall be determined
with
reference to such beginning Book Value using any reasonable method selected
by
the Managing Member.
“Disabled
Member”
is
defined in
Section 7.1(a)(ii) hereof.
“Disabling
Event”
is
defined in
Section 7.1(a)(i) hereof.
“Equity
Security” has
the meaning
ascribed to it in the Securities Exchange Act of 1934, as amended to the date
hereof, and the rules and regulations thereunder (and any successor laws, rules,
and regulations of similar import).
“Event
of
Withdrawal”
is
defined in
Section 7.1(a)(iv) hereof.
“Excess
Member”
is
defined in
Section 3.4(b) hereof.
“Exercise
Notice”
is
defined in
Section 6.4(a) hereof.
“Exercise
Period”
is
defined in
Section 6.4(a) hereof.
“Excess
Payment”
is
defined in
Section 3.4(b) hereof.
“Family
Trust”
means,
with
respect to any individual, a trust for the benefit of such individual or for
the
benefit of any member or members of such individual’s Immediate Family (for the
purpose of determining whether or not a trust is a Family Trust, the fact that
one or more of the beneficiaries (but not the sole beneficiary) of the trust
includes a Person or Persons, other than a member of such individual’s Immediate
Family, entitled to a distribution after the death of the settlor if he, she,
it, or they shall have survived the settlor of such trust, which distribution
is
to be made of something other than a Membership Interest, directly or
indirectly, in the Company and/or includes an organization or organizations
exempt from federal income tax pursuant to the
6
provisions
of
Sections 501(a) of the Code and described in Section 501(c)(3) of the Code
shall
be disregarded); provided, however, that in respect of transfers by way of
testamentary or inter vivos trust the trustee or trustees shall be solely such
individual, a member or members of such individual’s Immediate Family, a
responsible financial institution, an attorney that is a member of the Bar
of
any State in the United States, or an individual or individuals approved by
that
Member or those Members then holding an aggregate Percentage Interest of at
least eighty percent (80%).
“Fiscal
Year”
means
(i) the
period commencing on the effective date of this Agreement and ending on the
following December 31, (ii) any subsequent twelve (12) month period commencing
on January 1 and ending on December 31, or (iii) any portion of any period
described in clause (ii) for which the Company is required to allocate Profits,
Losses, and other items of Company income, gain, loss or deduction pursuant
to
Article IV of this Agreement.
“Gross
Income”
means
the income
of the Company and the net gain from sales of Company property before deduction
of items of expense or deduction.
“Guarantor”
is
defined in
Section 3.4(b) hereof.
“Immediate
Family” means
with respect
to any individual such individual’s spouse (past or then current), descendants
(natural or adoptive), grandparents, parents, siblings of the whole or half
blood, and descendants of parents of such individual’s spouse (past or then
current).
“Initiating
Member”
is
defined in
Section 6.5(a) hereof.
“Limited
Liability Company Law”
is
defined in
Section 1.1 hereof.
“Liquidator”
is
defined in
Section 8.1(a) hereof.
“Losses”
means
the losses
of the Company as determined in accordance with the method of accounting
followed by the Company for federal income tax purposes, including any
separately stated items under Code Section 702(a).
“Major
Decision”
is
defined in
Section 5.1(c) hereof.
“Management
Agreement”
is
defined in
Section 5.5 hereof.
“Managing
Member”
is
defined in
Section 5.1(a) hereof.
“Member”
and
“Members”
are
defined in
the Preamble hereto.
“Membership
Interest” as
to each Member
means all of the rights of a Member in the Company and shall include, but not
be
limited to, a Member’s (i) right to inspect the Company’s books and records,
(ii) right to participate in the management and affairs of, and vote on matters
presented to, the Company, and (iii) right to share in allocations of Profits
and Losses and distributions of Available Cash, all as and to the extent
provided in this Agreement.
“Member
Nonrecourse Debt Minimum Gain”
is
defined in
Section 4.3(d) hereof.
7
“Minimum
Gain”
means
an amount
determined in accordance with Regulations Section 1.704-2(b)(2), by computing
with respect to each nonrecourse liability (as defined in Regulations Section
1.704-2(b)(3)) of the Company, the amount of gain (of whatever character),
if
any, that would be realized by the Company if (in a taxable transaction) it
disposed of property subject to such liability in full satisfaction thereof,
and
by then aggregating the amounts so computed.
“Net
Value”
is
defined in
Section 7.6 hereof.
“Non-Defaulting
Member”
is
defined in
Section 3.4(e) hereof.
“Non-Initiating
Member”
is
defined in
Section 6.5(a) hereof.
“Non-Managing
Member”
means
the Member
that is not the Managing Member.
“Non-Pledging
Member”
is
defined in
Section 6.8(iii) hereof.
“Non-Triggering
Member”
is
defined in
Section 6.6(a) hereof.
“Offer”
is
defined in
Section 6.4(a) hereof.
“Ownership
Requirement”
is
defined in
Section 1.10(b)(vi) hereof.
“Percentage
Interest”
is
defined in
Section 3.2 hereof.
"Person"
means an
individual, a partnership (general or limited), limited liability company,
corporation, joint venture, business trust, cooperative, association, or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust (inter vivos and testamentary), an estate of a deceased,
insane, or incompetent Person, a quasi-governmental entity, a government or
any
agency, authority, political subdivision, or other instrumentality thereof,
or
any other entity.
"Pledge"
means any pledge,
encumbrance, hypothecation, or other assignment of a Membership Interest or
any
proceeds thereof as collateral for a loan to or for the benefit of the Member
whose Membership Interest or the proceeds thereof has been pledged.
“Pledge
Documents”
is
defined in
Section 6.8(iii) hereof.
“Pledgee”
is
defined in
Section 6.8(a)(i) hereof.
“Pledgee
Rights”
means
any of a
Pledgee’s rights under a loan or pledge agreement, including, without
limitation, foreclosure, a transfer in lieu of foreclosure, or sale pursuant
to
the applicable commercial code.
“Pledging
Member”
is
defined in
Section 6.8 hereof.
“Prime”
shall
mean that
rate of interest equal to the prime rate of interest published from time to
time
by the Company’s principal bank, or if such bank ceases to announce such a rate,
the average of the prime rates prevailing from time to time at the two (2)
national banks in the State of California having the largest deposits for the
calendar quarter immediately preceding the date that the prime rate is to be
determined.
8
“Profits”
means
the income
of the Company as determined in accordance with the method of accounting
followed by the Company for federal income tax purposes, including any
separately stated items under Code Section 702(a).
“Property”
is
defined in
Section 1.3 hereof.
“Regulations”
means
the
permanent and temporary regulations of the United State’s Department of the
Treasury under the Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
“Regulatory
Allocations”
is
defined in
Section 4.3(h) hereof.
“REIT”
means
a real
estate investment trust.
“REIT
Member”
is
defined in
Section 5.10 hereof.
“Required
Funds”
is
defined in
Section 3.4(b) hereof.
“Return”
means
a variable
return, recalculated and compounded monthly, equal to Prime plus one percent
(1%).
“Sale
Offer”
is
defined in
Section 6.6(a) hereof.
“Sale
Price”
is
defined in
Section 6.6(a) hereof.
“Seller”
is
defined in
Section 6.4(a) hereof.
“Subject
Interest”
is
defined in
Section 6.4(a) hereof.
“Successor”
is
defined in
Section 7.1(a)(iii) hereof.
“Taubman”
is
defined in the
Preamble to this Agreement.
“Tax
Matters
Member”
is
defined in
Section 5.9(a) hereof.
"Third
Party"
or "Third
Parties"
means one (1) or
more Persons who are neither Members nor Affiliates of a Member.
“Total
Price”
is
defined in
Section 6.5(a) hereof.
“Transfer”
means
any
assignment, sale, transfer, conveyance, encumbrance, Pledge, granting of an
option or proxy, or other disposition or act of alienation.
“TRG”
means
The Taubman
Realty Group Limited Partnership, a Delaware limited partnership.
“TRG
Excess
Contributions”
is
defined in
Section 3.4(c) hereof.
“TRG
LLC”
is
defined in the
Preamble to this Agreement.
“Triggering
Member”
is
defined in
Section 6.6(a) hereof.
9
“Trigger
Notice”
is
defined in
Section 6.6(a) hereof.
“TTC”
means
The Taubman
Company LLC, a Delaware limited liability company.
“Valuation
Date”
is
defined in
Section 7.6 hereof.
ARTICLE
III
CAPITAL
ACCOUNTS; CAPITAL CONTRIBUTIONS
3.1 Members’
Capital Accounts.
The Company shall
establish and maintain a separate capital account (“Capital
Account”)
for each Member,
in accordance with the following provisions:
(a) To
each Member’s
Capital Account there shall be credited such Member’s Capital Contributions,
such Member’s distributive share of Profits and any items in the nature of
income or gain that are specially allocated pursuant to Article IV hereof,
and
the amount of any Company liabilities assumed by such Member or which are
secured by any property distributed to such Member.
(b) To
each Member’s
Capital Account there shall be debited an amount of cash and the agreed-upon
fair market value of any property distributed to such Member pursuant to any
provisions of this Agreement, such Member’s distributive share of Losses and any
items in the nature of expenses or losses that are specially allocated pursuant
to Article IV hereof, and the amount of any liabilities of such Member that
the
Company assumes or takes subject to that have not been taken into account in
determining the amount of such Member’s Capital Contributions.
(c) Except
as provided
in this Agreement with respect to the Return, no interest or other fixed return
shall accrue or be paid on any Capital Contributions.
(d) It
is intended that
Capital Accounts be maintained in accordance with the provisions of Regulations
Section 1.704-1(b) and shall be interpreted and applied as provided in the
Regulations. In the event that the Managing Member reasonably determines that
the manner in which the Capital Accounts, or any debits or credits thereto,
are
maintained or computed under the Regulations should be further reflected in
an
amendment hereto, the Members shall enter into an appropriate amendment to
this
Agreement.
(e) In
the event that
the Book Values of Company assets are adjusted as described below in this
Section 3.1(e), the Capital Accounts of the Members shall be adjusted
simultaneously to reflect the aggregate net adjustments as if the Company
recognized gain or loss for federal income tax purposes equal to the amount
of
such aggregate net adjustment. For the purpose of this Agreement, the term
“Book
Value”
means,
with
respect to any asset, such asset’s adjusted basis for federal income tax
purposes, except:
(i) the
initial Book
Value of any asset contributed by a Member to the Company shall be the gross
fair market value of such asset;
(ii) the
Book Value of
all Company assets may be adjusted, as determined by the Members to be necessary
or appropriate to reflect the relative economic interests of the Members, to
equal their respective gross fair market values as of the following
10
times:
(1) the
acquisition from the Company, in exchange for more than a de
minimis
capital
contribution, of a Membership Interest by an additional member or of an
additional Membership Interest by an existing Member; (2) the distribution
by
the Company to a Member of more than a de
minimis
amount of Company
property (including money) as consideration for an interest in the Company;
and
(3) the liquidation of the Company within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g);
(iii) if
the Book Value
of an asset has been determined or adjusted as provided in paragraphs (i) or
(ii) above, the Book Value of such asset shall thereafter be adjusted by the
Depreciation (as defined below) taken into account with respect to such asset
for purposes of computing Profits and Losses; and
(iv) the
Book Value of
any Company asset distributed to any Member shall be the gross fair market
value
of such asset on the date of distribution.
In
the event that
any provision of this Section 3.1 or Section 3.3 hereof requires the
determination of the fair market value of any asset, such fair market value
shall be as determined by the mutual agreement of the Members provided that
(x)
such value is reasonably agreed to by the Members in arm’s-length negotiations
and (y) the Members have sufficiently adverse interests as provided in
Regulations Section 1.704-1(b)(2)(iv)(h).
In the event
that the requirements of clauses (x) and (y) of this Section 3.1(e) are not
met,
then the fair market value shall be determined by an appraiser selected by
the
Members, and the cost of such appraisal shall be an expense of the
Company.
3.2 Percentage
Interests.
For the purpose
of this Agreement, the term “Percentage
Interest”
means
with
respect to each Member, fifty percent (50%), as the same may be adjusted
pursuant to Section 3.4 (e) hereof.
3.3 Capital
Contributions. To
acquire the fee
interest in the Property, the Members will each contribute funds in an amount
equal to fifty percent (50%) of the purchase price and the anticipated immediate
working capital needs of the Company.
3.4 Additional
Funds; Anticipated Financing.
(a) In
order to carry
on the business of the Company, the Members acknowledge that funds may be
required in addition to the Capital Contributions reflected in Section
3.3 hereof.
All such
additional funds shall be obtained as provided in this Section 3.4.
(b) It
is the intent of
the Members to obtain, and the Managing Member shall use its Best Efforts to
obtain, all
funds required
to pay for costs, expenses, and fees of
the Company (the
"Required
Funds")
from the
proceeds of loans from Third Parties, pursuant to such terms, provisions, and
conditions and in such manner (including the engagement of brokers and/or
investment bankers to assist in providing such financing) as the Managing Member
shall determine. The Managing Member shall seek to obtain Company financing
on a
basis that is without recourse to the Members. Such financing may be secured
by
a mortgage or mortgages on all or any portion of the Property and/or the
Company’s interest therein. In the event that a Member or its Affiliate (a
"Guarantor")
is required to
make any payment under any guaranty or indemnity executed by such Guarantor
in
connection with any Company financing, then in such event, (i) if each Member,
or its Affiliate, is a Guarantor and if such payments are made by all
11
Guarantors
and are
in the same ratio as the respective Percentage Interests of their affiliated
Members, such payments shall be treated as additional Capital Contributions
by
the Members and shall be credited to their respective Capital Accounts, and
(ii)
if any Member, or its Affiliate, who is a Guarantor makes a payment that is
greater than its pro rata share of the aggregate amount of the total payments
made by both Members (or their Affiliates) under, or in respect of, such
guaranty or indemnity based upon its (or its affiliated Member’s) Percentage
Interest (the Member affiliated with such paying Guarantor being referred to
herein as the "Excess
Member",
and the amount
of the disproportionate payment, the "Excess
Payment")
and within ten
(10) Days after receipt of notice from the Excess Member, the Member (or its
Affiliate) that has made a payment that is less than (including making no
payment at all) such Member’s pro rata share of such total payment based on its
Percentage Interest (the "Deficit
Member")
has not paid the
Excess Member an amount (up to the Deficit Member’s pro rata share) equal to the
Excess Payment, the Excess Payments shall be treated as an additional Capital
Contribution by the Excess Member and shall be credited to its Capital Account,
and the Excess Member, as its sole remedy, shall have the right to dilute the
Percentage Interest of the Deficit Member in accordance with Section 3.4(e)
hereof. If a Deficit Member pays the Excess Member an amount equal to the Excess
Payment within the prescribed ten (10) Day period, then the total payments
made
by the Excess Member under the guaranty or indemnity (excluding an amount equal
to the reimbursed Excess Payment), and the total payments made by the Deficit
Member under such guaranty or indemnity as well as any Excess Payment made
by
the Deficit Member to the Excess Member, shall be treated as an additional
Capital Contribution by the paying Member and shall be credited to its Capital
Account. Each Member hereby waives any and all rights it may have against the
Company to recover any payment made by such Member (or its Affiliate) as a
Guarantor.
(c)
To
the extent
Required Funds are not available from Third Parties as provided in Section
3.4(b) hereof, the Managing Member may elect to contribute the Required Funds
to
the capital of the Company. All funds ("TRG
Excess
Contributions”)
contributed to
the capital of the Company by the Managing Member pursuant to this Section
3.4(c) shall bear the Return from and after the date of contribution to the
Company until distributed in full to the Managing Member pursuant to this
Agreement.
(d)
To the extent
Required Funds are not available from Third Parties as provided in Section
3.4(b) hereof, and the Managing Member elects not to contribute the Required
Funds to the capital of the Company pursuant to Section 3.4(c) hereof, upon
the
request of the Managing Member, the Members shall contribute all such Required
Funds to the capital of the Company in proportion to their respective Percentage
Interests. The Managing Member shall make any such request by written notice
(a
"Contribution
Notice")
to the Members,
identifying the amount of the Required Funds, each Member’s share of the
Required Funds, and the date on which the Required Funds are to be contributed,
which date shall be not less than thirty (30) Days after the date of the
Contribution Notice.
(e)
In the event that
any Member (a "Defaulting
Member”)
fails to
contribute timely its proportionate share determined in accordance with its
Percentage Interest, of any Required Funds pursuant to Section 3.4(d) hereof
or
reimburse timely an Excess Member pursuant to Section 3.4(b) hereof, the other
Member (the "Non-Defaulting
Member")
may give the
Defaulting Member written notice of such default. The Defaulting Member shall
then have ten (10) Business Days after receipt of such notice to cure its
default. If the Defaulting Member fails to cure its default within such ten
(10)
Business Day period, such default shall constitute an event of default whereupon
the Non-Defaulting Member, as its sole and exclusive remedy, may reduce the
Defaulting Member’s Percentage Interest to a percentage equal to the ratio
(expressed as a percentage) that the Defaulting Member’s total contributions to
the capital of the Company
12
(excluding
TRG
Excess Contributions, if any) bears to the total contributions of both Members
to the capital of the Company (excluding TRG Excess Contributions, if any).
The
amount of the reduction of the Defaulting Member’s Percentage Interest shall be
added to the Percentage Interest of the Non-Defaulting Member, and the
adjustments shall become effective as of the last Day of the ten (10) Business
Day period referred to above.
Notwithstanding
anything set forth in this Agreement to the contrary, if the Percentage Interest
of a Member falls below twenty-five percent (25%), such Member will lose its
consent rights with respect to Company decisions.
(f) The
provisions of
this Section 3.4 are intended to serve only for the benefit of the
Members,
inter
se,
and no Third
Party shall have any right whatsoever to benefit from the provisions hereof.
None of the provisions of this Agreement shall be construed as existing for
the
benefit of any creditor of the Company or of any creditor of any of the Members,
and none of such provisions shall be enforceable by any Person who is not a
Member.
3.5 Restrictions
Relating to Capital.
No Member shall
have the right to withdraw or reduce its Capital Contributions, and no Member
shall have the right to a partition of any property owned by the Company or
to
receive property other than cash, if any, in return for its Capital
Contributions.
ARTICLE
IV
ALLOCATIONS
OF PROFIT AND LOSS AND DISTRIBUTION OF AVAILABLE CASH
4.1 Members’
Shares of Profits.
After giving
effect to the special allocations set forth in Section 4.3 hereof, Profits
(and
each item thereof) for each Fiscal Year or other period shall be allocated
as
follows:
(a) First,
to the
Members until the aggregate amount of Profits allocated to the Members pursuant
to this Section 4.1(a) for such Fiscal Year and all prior Fiscal Years is equal
to the aggregate amount of Losses allocated to the Members for all prior Fiscal
Years pursuant to Section 4.2(c) hereof (in proportion to such
amounts);
(b) Second,
to the
Members in accordance with the ratio in which any Losses for all prior Fiscal
Years were allocated pursuant to Section 4.2(b) hereof, until the aggregate
amount of Profits allocated pursuant to this Section 4.1(b) for such Fiscal
Year
and all prior Fiscal Years is equal to the aggregate amount of Losses allocated
pursuant to Section 4.2(b) hereof for all prior Fiscal Years; and
(c) Thereafter,
to the
Members in accordance with their respective Percentage Interests.
4.2 Members’
Shares of Losses.
After giving
effect to the special allocations set forth in Section 4.3 hereof, Losses (and
each item thereof) for each Fiscal Year or other period shall be allocated
as
follows:
(a) First,
to the
Members until the aggregate amount of Losses allocated pursuant to this Section
4.2(a) for such Fiscal Year and all prior Fiscal Years is equal to the aggregate
13
amount
of Profits
allocated pursuant to Section 4.1(c) hereof for all prior Fiscal Years (in
proportion to such amounts);
(b) Second,
to the
Members in proportion to and to the extent of the positive balances in their
Capital Accounts;
(c) Thereafter,
the
balance, if any, to the Members in accordance with their respective Percentage
Interests.
4.3 Special
Allocations.
The following
special allocations shall be made in the following order of
priority:
(a) Gross
Income Allocation.
For each Fiscal
Year of the Company, Gross Income shall be allocated (prior to any allocations
pursuant to Section 4.1 and Section 4.2 hereof) to TRG LLC to the extent, if
any, of the Return distributed to TRG LLC pursuant to Section 4.5(a)(1) hereof
for the current Fiscal Year and distributable to TRG LLC pursuant to Section
8.1(a)(5) hereof if such Fiscal Year is the year in which the Company is to
be
liquidated. In addition, to the extent that the cumulative amount of the Return
distributed to TRG LLC for all prior Fiscal Years exceeds the cumulative amount
of Gross Income allocated to TRG LLC pursuant to this Section 4.3(a), then,
in
the current Fiscal Year, Gross Income shall be allocated to the TRG LLC to
the
extent of the cumulative amount of the Return distributed to TRG LLC as to
which
TRG LLC did not receive a Gross Income allocation pursuant to this Section
4.3(a).
(b) Qualified
Income Offset.
In the event any
Member unexpectedly receives any adjustments, allocations or distributions
described in Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5)
or
1.704-1(b)(2)(ii)(d)(6)
of the
Regulations, items of Company income and gain shall be specially allocated
to
such Member in an amount and manner sufficient to eliminate, to the extent
required by the Regulations, the Capital Account deficit of the Member as
quickly as possible, provided that an allocation pursuant to this Section 4.3(a)
shall be made only if and to the extent that the Member would have a Capital
Account deficit after all other allocations provided for in this Article IV
have
been tentatively made as if this Section 4.3(a) were not in the
Agreement.
(c) Minimum
Gain Chargeback.
If, for any
Fiscal Year of the Company, there is a net decrease in Company Minimum Gain,
each Member who has previously been allocated any nonrecourse deductions or
received distributions of proceeds attributable to any nonrecourse borrowing
of
the Company in any Fiscal Year of the Company shall be allocated items of
Company income and gain for the Fiscal Year in which there is a net decrease
in
Company Minimum Gain in proportion to such prior allocations equal to that
Member’s share of the net decrease in Company Minimum Gain consistently with the
requirements of Regulations Section 1.704-2. The items to be allocated pursuant
to this Section 4.3(b) shall be determined in accordance with Regulations
Section 1.704-2(f) and (j).
(d) Member
Minimum Gain Chargeback.
In the event that
there is a net decrease in Minimum Gain attributable to a Member Nonrecourse
Debt (as defined in Regulations Section 1.704-2(b)(4) and hereinafter referred
to as “Member
Nonrecourse Debt Minimum Gain”)
for a Company
Fiscal Year, then, subject to the exceptions set forth in Regulations Section
1.704-2(i)(4), each Member with a share of Member Nonrecourse Debt Minimum
Gain
at the beginning of such Company Fiscal Year shall be allocated items of income
and gain for such Company Fiscal Year (and, if necessary, for subsequent Company
Fiscal Years) equal to such
14
Member’s
share of
the net decrease in Member Nonrecourse Debt Minimum Gain as determined in a
manner consistent with the provisions of Regulations Section 1.704-2(g)(2).
The
items to be allocated pursuant to this Section 4.3(d) shall be determined in
accordance with Regulations Section 1.704-2(i)(4) and (j).
(e) Nonrecourse
and Recourse Deductions.
If, for any
Fiscal Year of the Company, the Company shall have any losses, deductions,
or
Code Section 705(a)(2)(B) expenditures attributable to Company recourse or
nonrecourse liabilities (including nonrecourse liabilities for which a Member
bears the economic risk of loss), such items shall be allocated in accordance
with Regulations Section 1.704-2 and Section 752 of the Code.
(f) Excess
Nonrecourse Liabilities.
For the purpose
of determining each Member’s share of excess nonrecourse liabilities of the
Company, and solely for such purpose, each Member’s interest in Company profits
shall be reasonably determined by the Managing Member in accordance with
Internal Revenue Service authority interpreting Regulations Section
1.752-3(a)(3).
(g) Limitation
on Deductions.
No Member shall
receive an allocation of any Company deduction or Loss that would cause the
total allocations of Loss or items thereof to such Member to exceed the amount
of its Capital Account balance increased by its share of Company Minimum Gain,
Member Nonrecourse Debt Minimum Gain, and any other amount a Member is
unconditionally obligated to restore on liquidation of the Company.
(h) Curative
Allocations. The
allocations set
forth in Sections 4.3(a), (b), (c), (d, (e), (f) and (g) hereof (the
"Regulatory
Allocations")
are intended to
comply with certain requirements of the Regulations. It is the intent of the
Members that, to the extent possible, all Regulatory Allocations shall be offset
either with other Regulatory Allocations or with special allocations of other
items of Company income, gain, loss or deduction pursuant to this Section
4.3(h). Therefore, notwithstanding any other provision of this Section 4.3
(other than the Regulatory Allocations), the Managing Member shall make such
offsetting special allocations of Company income, gain, loss or deduction in
whatever manner it determines to be reasonably appropriate so that, after such
offsetting allocations are made, each Member’s Capital Account balance is, to
the extent possible, equal to the Capital Account balance such Member would
have
had if the Regulatory Allocations were not part of the Agreement and all Company
items were allocated pursuant to Sections 4.1 and 4.2 hereof.
4.4 Allocations
for Federal Income Tax Purposes.
The following
allocations shall be made solely for federal income tax purposes:
(a) Code
Section 704(c).
In accordance with
Sections 704(b) and 704(c) of the Code and the Regulations thereunder, income,
gain, loss, and deduction with respect to any property contributed to the
capital of the Company shall, solely for federal income tax purposes, be
allocated between the Members so as to take account of any variation between
the
adjusted basis of such property to the Company for federal income tax purposes
and the initial Book Value of such property. If the Book Value of any Company
property is adjusted pursuant to Section 3.1(e) hereof, subsequent allocations
of income, gain, loss, and deduction with respect to such asset shall take
account of any variation between the adjusted basis of such asset for federal
income tax purposes and the Book Value of such asset in the manner prescribed
under Sections 704(b) and 704(c) of the Code and the Regulations
thereunder.
15
(b) Section
754 Adjustments.
In the event of a
sale or exchange of a Member’s Membership Interest or a portion thereof or upon
the death of a Member, if the Company has not theretofore elected, pursuant
to
Section 754 of the Code, to adjust the basis of Company property, the Managing
Member shall cause the Company to elect, if the Person acquiring such Membership
Interest or portion thereof so requests, pursuant to Section 754 of the Code,
to
adjust the basis of Company property. In addition, in the event of a
distribution referred to in Section 734(b) of the Code, if the Company has
not
theretofore elected, the Members may, in the exercise of their discretion,
cause
the Company to elect, pursuant to Section 754 of the Code, to adjust the basis
of Company property. Except as provided in Regulations Section
1.704-1(b)(2)(iv)(m),
such adjustment
shall not be reflected in the Members’ Capital Accounts and shall be effective
solely for federal and (if applicable) state and local income tax purposes.
Each
Member hereby agrees to provide the Company with all information necessary
to
give effect to such election with respect to such election.
(c) Miscellaneous.
Except as provided
in Sections 4.4(a) and 4.4(b) hereof, for federal income tax purposes, each
item
of income, gain, loss, or deduction shall be allocated among the Members in
the
same manner as its correlative item of “book” income, gain, loss, or deduction
has been allocated pursuant to Sections 4.1, 4.2, and 4.3 hereof.
4.5 Distributions
of Available Cash.
(a)
Subject to Section
4.5(b) hereof and Section 8.1(a) hereof, Available Cash shall be distributed,
as
and when the Managing Member shall determine, but not less frequently than
quarterly, as follows:
(i) First,
to TRG LLC
in an amount equal to its accrued but undistributed Return on the TRG Excess
Contributions;
(ii) Second,
to TRG LLC
in an amount equal to the TRG Excess Contributions to the extent not previously
distributed to TRG LLC pursuant to this clause (ii); and
(iii)
Thereafter,
to the
Members in accordance with their respective Percentage
Interests.
(b) Notwithstanding
Section 4.5(a) hereof and irrespective of the order of priorities therein set
forth and subject to the provisions of Section 8.1(a) hereof, to the extent
that
for any Fiscal Year of the Company while all or any portion of TRG’s Excess
Contributions remain outstanding, Taubman receives an allocation of net taxable
income from the Company without a concomitant distribution of Available Cash
(taking into account the cumulative distributions of Available Cash previously
made to Taubman pursuant to the provisions of Section 4.5(a)(iii) hereof, and
by
taking into account on a cumulative basis any losses (of the same character)
of
the Company for prior Fiscal Years of the Company), the Company shall, within
ninety (90) Days after the end of such Fiscal Year, make a distribution of
Available Cash to Taubman such that Taubman is distributed an amount equal
to
its combined federal and state tax liability determined by multiplying the
Company’s taxable income by the highest marginal federal and State of Michigan
income tax rates applicable to individuals in effect for such Fiscal Year.
The
amount of any distribution pursuant to this Section 4.5(b) shall be credited,
on
a cumulative basis, against any other distributions of Available Cash to be
made
to Taubman pursuant to Section 4.5(a)(iii) hereof and/or Section 8.1(a)(7)
hereof.
16
4.6 Bank
Accounts.
One
or more
accounts in the name of the Company shall be maintained in such bank or banks
as
the Managing Member may from time to time select. Any checks of the Company
may
be signed by any Person(s) designated, from time to time, by the Managing
Member.
4.7 Books
of
Account and Reports.
(a)
The
Company shall
maintain at its principal office and in accordance with generally accepted
accounting principles, complete and accurate books of account and records of
its
operations showing the assets, liabilities, costs, expenditures, receipts,
profits, and losses of the Company and which shall include provision for
separate Capital Accounts for the Members and shall provide for such other
matters and information as a Member shall reasonably request, together with
copies of all documents executed on behalf of the Company. Each Member and
its
representatives, duly authorized in writing, shall have the right to inspect
and
examine, at all reasonable times, at the principal office of the Company, all
such books of account, records, and documents.
(b)
The
Managing Member
shall deliver, or cause to be delivered, to the Non-Managing Member within
ninety (90) Days after the end of each Fiscal Year of the Company, unaudited
financial statements prepared in accordance with generally accepted accounting
principles. In the event the Managing Member causes audited financial statements
to be prepared for itself or others, it shall deliver a copy of such audited
financial statements to the Non-Managing Member.
(c)
To
the extent the
Managing Member prepares, or causes to be prepared, for itself or others,
unaudited quarterly financial statements, the Managing Member shall deliver,
or
cause to be delivered, to the Non-Managing Member within forty-five (45) Days
after the end of each calendar quarter, such unaudited financial statements
prepared in accordance with accounting principles consistently applied on an
historical basis and with such additional details reasonably requested by the
Non-Managing Member to convert such financial statements into ones consistent
with generally accepted accounting principles.
(d)
The
Managing Member
shall also prepare, or cause to be prepared, on behalf of the Company, such
financial statements, reports, and other information as may be required by
any
Third Party lender of the Company.
(e)
The cost of all
reporting provided for or authorized in this Section 4.7 shall be paid by the
Company. Any Member may, at any time, and at its sole expense, cause an audit
of
the Company’s books to be made by a certified public accountant of such Member’s
own selection.
4.8
Tax
Returns and Audits.
The initial
accountant for the Company (the "Accountant")
shall be
Deloitte Tax LLP. The Accountant shall prepare all applicable tax returns,
including any schedules or additional information reasonably required by any
Member in order to file its tax returns, all of the foregoing at the expense
of
the Company. The Managing Member shall provide the Accountant such information
as is reasonably necessary to permit the Accountant to prepare such tax returns
within ninety (90) Days after the end of each Fiscal Year of the Company, and
the Managing Member shall timely file such tax returns, subject to its right
to
file an extension. In the event, the Managing Member determines, in its sole
discretion, to appoint an auditor for the Company, the initial auditor for
the
Company (the “Auditor”)
shall be KPMG.
The expense of the Auditor will be borne by the Company.
17
4.9 Company
Fiscal Year.
The Company’s
fiscal and taxable year shall be the calendar year.
ARTICLE
V
MANAGEMENT;
EXECUTION OF
LEGAL
INSTRUMENTS; OTHER VENTURES
5.1 Management;
Authority of the Managing Member; Limitations on
Authority.
(a) Except
as otherwise
provided herein regarding Major Decisions, the Company shall be managed solely
and exclusively by the Managing Member (the "Managing
Member").
TRG LLC is
hereby designated as the Managing Member. The Managing Member shall use its
Best
Efforts to carry out the purposes of the Company and shall have, in respect
of
its management of the Company, all of the powers of the Company and shall devote
such time and attention to the Company as is reasonably necessary for the proper
management of the Company and its properties; it being acknowledged however
that
the Managing Member shall not be required to devote its time exclusively to
the
operation of the Company. Except as otherwise provided herein regarding Major
Decisions, all actions, decisions, determinations, designations, directions.
appointments, consents, approvals, selections, and the like, to be taken, made,
or given by and/or with respect to the Company, its business and property as
well as management of all Company affairs, shall in each and every case be
made
by. and only by, the Managing Member, and all such actions, decisions,
determinations, designations. directions, appointments, consents, approvals,
selections, and the like shall be controlling and binding upon the Company
and
the Members.
Accordingly,
the
Managing Member shall have the exclusive right, power, and authority, on behalf
of the Company, subject only to the limitations set forth in this Agreement,
including Section 5.1(c) hereof, and subject to carrying out the purposes of
the
Company, to negotiate, enter into, perform, amend, and take all actions in
respect of any and all agreements, instruments, and documents; to acquire,
assets of any nature; to borrow money, incur and repay debts and liabilities
and
obligations, issue evidences of indebtedness, and secure such indebtedness
by
granting mortgage(s), liens, or charges upon any property of the Company; to
cause the Managing Member, in the event that it decides to contribute Required
Funds to the capital of the Company pursuant to Section 3.2(c) hereof, to
receive the Return thereon; to maintain and lease the Property, to enter into
one or more leases, subleases, and similar related and ancillary documents
in
respect of the Property; to retain Third Parties on behalf of the Company
including, without limitation, engineers, auditors, attorneys, consultants,
and
brokers; to maintain insurance; to obtain through contract or otherwise, goods
and services; and to perform all acts that a Member may legally do pursuant
to
the Limited Liability Company Law that are consistent with the terms of this
Agreement.
(b)
The Managing
Member shall consult with and inform the Non-Managing Member from time to time
as shall be reasonably requested by the Non-Managing Member. The Non-Managing
Member shall have no right or authority to act on behalf of or bind the Company
in any manner except as may otherwise be agreed to by the Managing Member in
writing.
(c)
Notwithstanding
Sections 5.1(a) and 5.1(b) hereof, without the prior written consent of the
Non-Managing Member, the Managing Member shall not have the power to bind the
Company in connection with any of the following (each a "Major
Decision"):
18
(i)
the
financing or
refinancing of the Property, including the mortgaging or the placing or
suffering of any other encumbrance on the Property or any portion thereof or
the
guaranty of any such financing or refinancing;
(ii) the
sale, ground
leasing, or other transfer of the Property (or any portion thereof) other than
in accordance with Section 6.6 hereof, or the development of the Property (or
any portion thereof);
(iii)
other than as
provided in Section 1.4 hereof, the dissolution and liquidation of the
Company;
(iv)
other than in
accordance with Article VI hereof, the admission of additional Members to the
Company;
(v)
the entering into
of contracts or agreements with any Member or any Affiliate of a Member on
behalf of the Company other than the lease of all or any portion of the Property
to SunValley Shopping Center LLC and the material amendment of any such
contracts or agreements;
(vi)
the acquisition of
any real property or interest therein including any interest in any Person
owning real property other than the Property or the expansion of the purposes
of
the Company beyond those specified in Section 1.3 hereof;
(vii)
the making of any
investment in, or any advance to, any Person;
(viii)
the decision to
call for capital from the Members or to require a guaranty of Company financing
by the Members;
(ix)
the filing of any
request or suit or the entering into of any agreement of extension requiring
the
consent of the Members pursuant to Section 5.8 hereof;
(x)
the conduct of
Company operations in a manner inconsistent with the provisions of Section
5.9
hereof;
(xi)
the confession of
any judgment against the Company;
(xii)
the execution and
delivery of any assignment for the benefit of creditors of the Company;
(xiii)
the filing of any
petition seeking reorganization, readjustment, arrangement. composition, or
similar relief for the Company under the federal bankruptcy laws or any similar
law;
(xiv)
the merger or
other business combination or division of the Company; and
(xviii)
the
amendment of
this Agreement.
(d) TRG
LLC shall serve
as the Managing Member for the Company unless and until its Percentage Interest
is reduced to less than twenty-five percent (25%), or it has suffered a
Disabling Event or an Event of Withdrawal. In the event that TRG LLC’s
Percentage Interest is
19
reduced
to less
than twenty-five percent (25%), or it has suffered a Disabling Event or an
Event
of Withdrawal, Taubman (provided that Taubman’s Percentage Interest has not been
reduced to less than twenty-five percent (25%) and Taubman has not suffered
a
Disabling Event or an Event of Withdrawal) may notify TRG LLC in writing that
Taubman will assume all rights and all obligations of the Managing Member under
this Agreement. If Taubman assumes the rights and obligations of the Managing
Member pursuant to this Section 5.1(d) and thereafter Taubman’s Percentage
Interest is reduced to less than twenty-five percent (25%) or Taubman suffers
a
Disabling Event or an Event of Withdrawal, the Managing Member shall be that
Member designated by Members holding in excess of fifty percent (50%) of the
Percentage Interests.
(e)
The Members, by
their execution and delivery of this Agreement, irrevocably authorize the
Managing Member to do any act that the Managing Member has the right, power,
and
authority to do under the provisions of this Agreement and under the Limited
Liability Company Law (but only to the extent not inconsistent with the terms
of
this Agreement), without any other or subsequent authorizations or consents
of
any kind. Except in the case of a Major Decision, no Person dealing with the
Company shall be required to investigate or inquire as to the authority of
the
Managing Member to exercise the rights, powers, and authority herein conferred
upon it. Any Person dealing with the Company shall, except in the case of a
Major Decision, be entitled to rely upon any action taken and/or any document
or
instrument executed and delivered by the Managing Member or a Person designated
by the Managing Member, and the Company shall be bound thereby. Except in the
case of a Major Decision, no purchaser of any property or interest owned by
the
Company, or lender, shall be required to determine the sole and exclusive
authority of the Managing Member to execute and deliver on behalf of the Company
any such instrument of transfer or security, or to see to the application or
distribution of revenues or proceeds paid or credited in connection therewith.
5.2 Response
of the Members.
Unless otherwise
specifically provided in this Agreement, whenever any Member is requested by
any
other Member to cast a vote, grant an approval, or execute a consent of any
nature whatsoever in connection with the Company, such request shall be made
in
writing to the other Member at its address set forth herein, and such Member
shall respond to such request with reasonable promptness by means of a written
response signed by such Member and sent to the requesting Member, which shall
be
binding on the responding Member, and in any event not more than ten (10)
Business Days after the receipt of the request, unless such request identifies
an emergency situation, in which event not more than three (3) Business Days
after the receipt of the request. The response shall indicate any reasons for
withholding consent. The failure of a Member to respond in writing within the
applicable time period shall constitute a ratification and approval by such
Member of the matter requested.
5.3 Compensation
of Members and Affiliates. The
Managing Member
shall not be entitled to any fees to act as Managing Member hereunder. The
Managing Member shall be entitled to reimbursement for any reasonable or
necessary expenses incurred or expenditures made by it (to the extent not
otherwise reimbursed) for or on behalf of the Company.
5.4 Authority
for Execution of Instruments.
All
contracts of
the Company, leases, promissory notes, deeds of trust, mortgages, and other
evidences of indebtedness of the Company, and other Company instruments or
documents, need be executed, signed, or endorsed only by the Managing Member
or
that Person or those Persons (who need not be Members) designated in writing
by
the Managing Member, and such designated Person's(s') signature(s) shall be
sufficient to bind the Company and its properties.
20
5.5 Management
Agreement.
The Company has
entered into a management agreement with TTC, dated the date hereof, (the
“Management
Agreement”),
which will
provide for certain services with respect to the Property, including, without
limitation, financing. Notwithstanding
anything to the contrary contained herein, in the event of a Change of Control
Event, the Company shall solicit bona fide, arms-length proposals from Persons
other than TTC that have management experience and a reputation comparable
to
TTC’s, to provide the management, administrative, and other services in respect
of the Property then provided by TTC. In the event that the terms of any such
proposal are more favorable to the Company than the terms of the current
Management Agreement, then unless TTC agrees to provide the required services
upon the same terms and conditions as are contained in the proposal, the Company
shall terminate the Management Agreement, and shall enter into a new management
agreement with such other Person for the provision of such services. In the
event that the terms of any such proposal are not more favorable to the Company
than the terms of the current Management Agreement, then the Company shall
retain TTC as the manager.
5.6 Indemnification
of the Members; Limit on Liability.
Without
duplication of amounts reimbursed to a Member pursuant to Section 5.3 hereof,
the Company shall and does hereby, to the fullest extent permitted by law,
indemnify and hold harmless each Member (including the Managing Member), its
successors, and assigns, from and against any and all losses, liabilities,
obligations, claims, causes of action, demands, costs and expenses (including
reasonable attorneys’ fees), incurred by the Member with respect to any act or
omission performed by such Member within the scope of the authority conferred
upon it by this Agreement, except for acts or omissions that constitute fraud,
willful misconduct, gross negligence, or a material breach of this Agreement.
Except for acts that constitute fraud, willful misconduct, gross negligence,
or
a material breach of this Agreement, a Member shall not be liable to the Company
or to the other Member (and the interest of each Member in the Company, and
in
its property and assets, shall be free of any claims by the Company or the
other
Member) by reason of any act performed for or on behalf of the Company, or
in
furtherance of the Company business, or by reason of any omission. Any indemnity
under this Section 5.6 shall be provided out of and to the extent of Company
assets only, and no Member shall have any personal liability on account thereof.
The indemnity and the limit on liability provided in this Section 5.5 shall
survive the dissolution and termination of the Company and the termination
of
this Agreement.
5.7 Bank
Accounts.
The
bank account or
accounts of the Company shall be maintained in the banking institution or
institutions selected by the Managing Member. All funds of the Company shall
be
deposited into account(s) of the Company and any and all checks or other
instruments used to draw funds of the Company shall require the signature of
the
Managing Member or those individuals authorized by the Managing
Member.
5.8 Activities
and Competing Ventures of the Members and Affiliates.
The Members
acknowledge that each of them and their Affiliates may have interests in other
present or future ventures, including ventures that are competitive with the
Company, and that, notwithstanding its status as a Member in the Company, a
Member and its Affiliates shall be entitled to obtain and/or continue their
respective individual participation in all such ventures without (i) accounting
to the Company or the other Members for any profits with respect thereto,
21
(ii)
any obligation
to advise the other Members of business opportunities for the Company which
may
come to its or its Affiliate’s attention as a result of its or its Affiliate’s
participation in such other ventures or in the Company, and (iii) being subject
to any claims whatsoever on account of such participation.
5.9 Tax
Matters Member.
(a)
As used in this
Agreement, “Tax
Matters
Member”
has
the meaning
ascribed to “tax matters partner” in Section 6231(a)(7) of the Code. The
Managing Member is hereby designated Tax Matters Member for the Company. The
Tax
Matters Member shall comply with the requirements of Sections 6221 through
6231
of the Code applicable to a Tax Matters Member.
(b) The
Tax Matters
Member shall have the continuing obligation to provide the Internal Revenue
Service with sufficient information so that proper notice can be mailed to
all
Members as provided in Section 6223 of the Code, provided that each Member
shall
furnish the Tax Matters Member with all such information (including information
specified in Section 6230(e) of the Code) as is required with respect to such
Member for such purpose.
(c) The
Tax Matters
Member shall keep each Member informed on a current and on-going basis of all
administrative and/or judicial proceedings for the adjustment of partnership
items (as defined in Section 6231(a)(3) of the Code) at the Company level.
Without limiting the generality of the foregoing sentence, within five (5)
Business Days after receiving any written or oral notice of the time and place
of a meeting or other administrative or judicial proceeding from the Internal
Revenue Service regarding a proceeding (and in any event, within a reasonable
time prior to such meeting or proceeding), the Tax Matters Member shall furnish
a copy of such written communication or notice to each Member or inform each
Member of the substance of any such oral communication. The foregoing obligation
of the Tax Matters Member to inform the other Member shall extend to routine
and
minor events.
(d)
Each
Member shall
promptly notify the Tax Matters Member of its treatment of any Company item
on
its federal income tax return which is or may be inconsistent with the treatment
of that item on the Company’s return. In addition, if any Member intends to file
a request for administrative adjustment with the Internal Revenue Service,
such
Member shall notify the Tax Matters Member (who shall notify any unaffiliated
Member) of such fact and its terms at least thirty (30) Days prior to such
filing.
(e) If
any Member
intends to enter into a settlement agreement with the Secretary of the Treasury
(or his authorized delegate) with respect to any Company item, such Member
shall
notify the Tax Matters Member (who shall notify any unaffiliated Member) of
such
fact and its terms at least twenty (20) Days prior to such settlement agreement
and shall notify the Tax Matters Member (who shall notify any unaffiliated
Member) of any such settlement agreement and its terms within thirty (30) Days
after the date of settlement.
(f)
If the Tax Matters
Member elects not to file suit under Section 6226 or Section 6228 of the Code
concerning an administrative adjustment or request for administrative adjustment
and any other Member elects to file such a suit, such Member shall notify the
Tax Matters Member (who shall notify any unaffiliated Member) of such intention,
and the forum or forums in which such suit shall be filed shall be determined
by
such Member.
22
(g) Without
the
approval of the other Member, the Tax Matters Member shall not enter into any
written correspondence with the Internal Revenue Service, extend the statute
of
limitations with respect to the Company, file a request for administrative
adjustment, file suit concerning any tax refund or deficiency relating to any
Company administrative adjustment or enter into any settlement agreement
relating to any Company adjustment or enter into any settlement agreement
relating to any item of income, gain, loss, deduction or credit for any taxable
year of the Company. Further, any and all communications with the Internal
Revenue Service, including, without limitation, the calling of meetings with
the
Internal Revenue Service, shall be only with the participation of the other
Member.
(h) Each
Member shall
be entitled to participate in all administrative proceedings with the Internal
Revenue Service, as provided in Section 6224(a) of the Code.
(i) The
Tax Matters
Member shall not make any available election pursuant to the Code without the
prior approval of the other Member, such approval not to be unreasonably
withheld.
(j) The
obligations
imposed on the Tax Matters Member and the participation rights afforded the
other Member by this Section 5.9 and the Code may not be restricted or limited
in any fashion by the Tax Matters Member without the prior written consent
of
the other Member.
(k) The
Tax Matters
Member shall be responsible for representing the Company in all dealings with
any state, local, or foreign tax authority, subject to the requirement that
the
provisions of this Section 5.9 shall apply with equal force to all dealings
with
any such tax authority.
5.10 Specific
Provisions Relating to Real Estate Investment Trust
Status. Anything
herein to
the contrary notwithstanding, so long as any Member is, or is owned, directly
or
indirectly, to the extent of at least ten percent (10%) by a Person who is
a
REIT (hereinafter each a "REIT
Member"),
the Managing
Member shall cause the Company to conduct operations in a manner consistent
with
the following provisions and any variance from the following shall require
the
written consent of all of the REIT Members:
(a)
To the extent
required for any rents from all or any part of the Property to qualify as "rents
from real property’ within the meaning of Section 856 of the Code and the
Regulations thereunder, any Person rendering services to a lessee or sublessee
of all or any part of the Property shall be a taxable REIT subsidiary within
the
meaning of Section 856(l) of the Code and any Regulations thereunder or an
"independent contractor" within the meaning of Section 856(d)(3) of the Code
and
the Regulations thereunder from whom the Company does not derive or receive
any
income, except as permitted by Section 856(d)(7)(C)(ii) of the
Code;
(b)
To the extent
required for any rents from all or any part of the Property to qualify as "rents
from real property" within the meaning of Section 856 of the Code and the
Regulations thereunder, any manager or advisor to the Company shall be a taxable
REIT subsidiary (or an entity in which a taxable REIT subsidiary owns a
substantial interest) within the meaning of Section 856(l) of the Code and
any
Regulations thereunder or an "independent contractor within the meaning of
Section 856(d)(3) of the Code and the Regulations thereunder;
23
(c)
To the extent
required for any rents from all or any part of the Property to qualify as "rents
from real property" within the meaning of Section 856 of the Code and the
Regulations thereunder, the Company shall not manage the Property other than
through a taxable REIT subsidiary (or an entity principally owned by a taxable
REIT subsidiary) within the meaning of Section 856(l) of the Code and any
Regulations thereunder or an independent contractor within the meaning of
Section 856(d)(3) of the Code and the Regulations thereunder;
(d)
The Company shall
not enter into any lease with any Person, other than Sun Valley Shopping Center
LLC, who is directly or indirectly related (within the meaning of Section
856(d)(2)(B) of the Code) to any real estate investment trust which owns,
directly or indirectly, a REIT Member;
(e)
The Company shall
not (i) form an association taxable as a corporation other than a taxable REIT
subsidiary within the meaning of Section 856(l) of the Code, (ii) form a trust,
or (iii) acquire securities in any issuer, except for the acquisition of
government securities;
(f)
No lease or
sublease of all or any part of the Property shall provide for any rents that
are
contingent, in whole or in part, on the net income or profits derived by the
lessee or sublessee;
(g)
The Company shall
not enter into any lease of personal property, under or in connection with
the
lease of real property, if the rent attributable to such personal property
exceeds ten percent (10%) of the total rent for the taxable year attributable
to
both the real and personal property leased under or in connection with such
lease;
(h)
The Company shall
not enter into any lending transaction if any amount received or accrued,
directly or indirectly, therewith by the Company, depends in whole or in part
on
the income or profits of any Person; nor shall the Company enter into any
lending transaction if the loan by the Company does not meet the “straight debt”
safe harbor of Section 856(m)(1)(A) of the Code; and
(i)
The Company shall
not engage in any “prohibited transaction" within the meaning of Section
857(b)(6) of the Code (for purposes hereof, the determination of whether a
transaction constitutes a "prohibited transaction" shall not take into account
the provisions of Section 857(b)(6)(C) of the Code).
Any
attempted
action that violates any of the foregoing shall be null and void and ineffective
for all purposes; provided, however, that any such attempted action shall
constitute a material breach of this Agreement.
ARTICLE
VI
TRANSFERS
OF MEMBERSHIP INTERESTS
6.1 General
Restrictions on Dispositions.
(a)
Except as
expressly provided in this Article VI or Section 7.3 hereof, no Member may
Transfer all or any part of its Membership Interest (including the right to
distributions) without the prior written consent of the other Member, provided
that no Member may, under any
24
circumstances,
Transfer all or any part of its Membership Interest if such Transfer would
constitute a default under any indebtedness or other Third-Party obligations
or
agreements of the Company.
(b) In
the event a
Member desires to Transfer its Membership Interest in accordance with and as
permitted by the provisions of this Article VI, such Member shall give the
non-transferring Member thirty (30) Days prior written notice of its desire
to
Transfer and shall disclose the identity of the transferee and, if an entity,
its beneficial ownership.
(c) An
assignment of
all or a part of a Membership Interest occurring by operation of law
(e.g.,
bankruptcy,
attachment, etc.)
shall not entitle
the successor to participate in the management and affairs of the Company or
to
exercise any rights of a Member, including the right to vote on or consent
to
any matter requiring a vote or a consent of the Members, unless and until such
transferee is admitted as a Member in accordance with Section 6.2 hereof. In
the
event of an assignment occurring by operation of law, the assignor Member shall
be entitled to continue to exercise the rights of a Member under this Agreement,
and such assignor Member and its transferee shall be jointly and severally
liable to the Company for such Member’s obligations to the Company under this
Agreement or under the Limited Liability Company Law.
(d) For
purposes of
this Agreement, any Transfer of any direct or indirect membership interest,
partnership interest, stock or other equity interest in any Member shall be
deemed to be a Transfer by such Member of its Membership Interest in the
Company, except for any direct or indirect Transfer of direct or indirect
interests in (a) TRG or (b) Taubman, so long as at all times after any such
Transfer at least fifty-one percent (51%) of the direct and indirect ownership
interests in Taubman, as applicable, are owned by, and Taubman is solely
Controlled By, members of A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ Immediate Family and/or their
respective estates and/or a Family Trust in respect of any of the
foregoing.
6.2 Substitution
of Members.
Regardless of
compliance with any of the provisions hereof (including, without limitation,
the
provisions of Article VII hereof) permitting a Transfer of a Membership
Interest, no Transfer of a Membership Interest shall be recognized by or be
binding upon the Company unless:
(i)
such
instruments as
may be required by the Limited Liability Company Law or other applicable law
or
to effect the continuation of the Company and the Company’s ownership of its
properties are executed and delivered and/or filed;
(ii)
the
instrument of
assignment binds the assignee to all of the terms and conditions of this
Agreement as if the assignee were a signatory party hereto and does not release
the assignor from any liability or obligation, accruing prior to the date of
the
Transfer, of or in respect of the Membership Interest which is the subject
of
the Transfer;
(iii)
the
instrument of
assignment is manually signed by the assignee and assignor and is otherwise
reasonably acceptable in form and substance to the non-transferring
Member;
(iv)
if
there is more
than a single assignee (or successor-in-interest), the assignees or successors
shall have complied with the provisions of Section 7.2 hereof;
(v)
such
Transfer or
Pledge shall not be prohibited by, or cause a breach of, or cause events,
including, without limitation, by reason of the nature of the transferee or
pledgee (e.g.
tax-exempt
status), that are unacceptable to the non-transferring or non-
25
pledging
Member in
the exercise of its reasonable discretion to occur pursuant to, any agreement,
obligation, or understanding by which the assignor or the assignee or any
properties of the Company or the Company itself is bound or
affected;
(vi)
the
non-transferring Member shall receive such evidence (including opinions of
counsel) of the due authorization, execution and delivery of instruments by,
and
the validity and enforceability of such instruments against, such transferee
as
the non-transferring Member shall reasonably request;
(vii)
any
required
consent of the mortgagee or beneficiary under any mortgage or deed of trust
or
lease of the Property to such Transfer and substitution or Pledge shall have
been obtained;
(viii)
the
assignee shall
pay all expenses incurred by the Company in admitting the assignee as a Member,
and
(ix)
in
the event of a
Pledge of a Member’s Membership Interest, the provisions of Section 6.8 hereof
are complied with.
An
assignee of a
Membership Interest pursuant to a Transfer permitted in this Agreement who
is
admitted as a member in the Company in the place and stead of the assignor
Member in respect of the Membership Interest acquired from the assignor Member
shall have all of the rights, powers, obligations, and liabilities, and be
subject to all of the restrictions, of the assignor Member, including, without
limitation, but without release of the assignor Member, the liability of the
assignor Member for any existing unperformed obligations of the assignor Member.
Each of the Members, on behalf of itself and its permitted successors and
assigns, HEREBY AGREES AND CONSENTS to the admission of any such additional
members as herein provided.
6.3 Intentionally
Omitted.
6.4 Right
of
First Refusal.
(a) If
any Member
desires to Transfer all or any portion of its Membership Interest (the
"Subject
Interest")
to any Person
(other than pursuant to a Pledge), and such Transfer is not otherwise permitted
by Sections 6.1 or 6.3 hereof, then, such Member (the "Seller")
shall submit to
the other Member (the "Buyer")
a true copy of a
bona tide written offer to purchase the Subject Interest (the "Offer"),
which Offer
shall in any event (i) provide for (x) an all cash at closing purchase price
that provides for no contingent payments, participation features or other
payments other than as are customary to a Transfer for an all cash at closing
purchase price, or (y) a purchase price that can be paid with cash, marketable
securities, and/or units in an operating partnership which are convertible
into
marketable securities, and that can, strictly for purposes of this provision
and
the calculation hereinafter referenced, be converted to an all cash at closing
purchase price equivalent, and (ii) disclose the price and terms of such
proposed sale and the name, address, and beneficial ownership of the proposed
purchaser. The Buyer shall have the absolute right to purchase the Subject
Interest upon the terms and conditions set forth in the Offer, or if such Offer
provides for a purchase price to be paid in other than all cash at the closing,
the Buyer may purchase the Subject Interest for an all cash at closing purchase
equivalent; provided, however, that, regardless of such terms and conditions,
the date, time, and place for the consummation of such purchase shall be as
designated by the Buyer, provided that the date so designated shall be a
Business Day within seventy-five (75) Days after the Exercise Notice (as defined
below) with at least ten (10) Days’ advance written notice thereof to the
Seller. The Buyer
26
shall,
within
forty-five (45) Days after receipt of the Offer (the "Exercise
Period"),
specify in a
notice (an "Exercise
Notice")
to the Seller
whether or not it desires to purchase the Subject Interest. Such Exercise Notice
shall be accompanied by a ▇▇▇▇ ▇▇▇▇▇▇▇ money deposit equal to five percent
(5%)
of the purchase price if the Buyer elects to purchase the Subject Interest.
If
the Buyer fails to give an Exercise Notice (and deposit) within the Exercise
Period as to the Subject Interest, such failure shall constitute an election
to
reject the Offer. The closing of a purchase by a Buyer shall be held in
accordance with the provisions of Section 6.7 hereof. At the closing, the
Buyer’s ▇▇▇▇▇▇▇ money deposit, together with interest thereon, shall be credited
against the purchase price for the Subject Interest (or returned in the event
that the purchase price is to be paid in other than cash); provided, however,
that if the closing shall fail to occur because of a default by the Buyer,
the
Buyer may not submit an Offer, a Buy-Sell Notice, or a Sale Notice, for a period
of twelve (12) months after the scheduled closing date, and the Seller shall
have the right, as its exclusive remedy, to retain the Buyer’s deposit, together
with interest thereon, as liquidated damages, it being agreed that in such
instance, the Seller’s damages would be difficult, if not impossible, to
ascertain.
(b) The
Seller may sell
the Subject Interest, if the Offer was not so accepted, to the proposed
purchaser whose name and address were disclosed in the Offer but only (i) upon
the same terms and conditions set forth therein (except that the purchase price
for the Subject Interest may be ninety-five percent (95%) or more of the
purchase price for the Subject Interest as set forth in the Offer), (ii) within
seventy-five (75) Days after the expiration of the Exercise Period, and (iii)
after the Seller has obtained any Third Party consents necessary to effectuate
the sale; otherwise, any such sale shall be null and void and of no force or
effect whatsoever.
Notwithstanding
anything to the contrary contained herein, a Member may not submit an Offer
in
accordance with this Section 6.4 if (x) a Member has given a Buy-Sell Offer
in
accordance with Section 6.5 hereof or a Sale Offer in accordance with Section
6.6 hereof, in either case, that is outstanding or pursuant to which a purchase
has not yet been consummated, or (y) a Member is marketing the Property as
provided in Section 6.6 hereof.
6.5
Buy-Sell.
(a) TRG
LLC or Taubman
(the "Initiating
Member")
shall have the
right, at any time, to initiate a termination of the Company in accordance
with
this Section 6.5. The Initiating Member shall deliver to whichever of TRG LLC
or
Taubman is not the Initiating Member (the "Non-Initiating
Member")
an offer (the
"Buy-Sell
Offer")
in writing
stating a cash purchase price (the "Total
Price")
attributable to
one hundred percent (100%) of the Company’s assets. The Non-Initiating Member
then shall have the option either:
(i)
to
purchase the
Membership Interest of the Initiating Member in the Company for cash at a price
equal to the amount that the Initiating Member would receive under Section
8.1(a) hereof if the Company’s assets were sold for the Total Price and all of
the liabilities of the Company were satisfied; or
(ii)
to
sell to the
Initiating Member the Membership Interest of the Non- Initiating Member in
the
Company for cash at a price equal to the amount that the Non-Initiating Member
would receive under Section 8.1(a) hereof if the Company’s assets were sold for
the Total Price and all of the liabilities of the Company were
satisfied.
The
Non-Initiating
Member shall give written notice of such election to the Initiating Member
within forty-five (45) Days after receipt of the Buy-Sell Offer. Such notice
shall be
27
accompanied
by a
▇▇▇▇ ▇▇▇▇▇▇▇ money deposit equal to five percent (5%) of the purchase price
if
the Non-Initiating Member elects to purchase the Membership Interest of the
Initiating Member. Failure of the Non-Initiating Member to give the Initiating
Member notice that the Non-Initiating Member has elected under Section 6.5(a)(i)
hereof (and to deliver the required deposit) within the foregoing forty-five
(45) Day period shall be conclusively deemed to be an election to sell under
Section 6.5(a)(ii) hereof. In the event that the Non-Initiating Member does
not
elect to purchase the Membership Interest of the Initiating Member, the
Initiating Member shall give the Non-Initiating Member, a ▇▇▇▇ ▇▇▇▇▇▇▇ money
deposit equal to five percent (5%) of the purchase price of the Non-Initiating
Member’s Membership Interest, within ten (10) Days after (i) the receipt of the
Non-Initiating Member’s election to sell under Section 6.5(a)(i) hereof, or (ii)
if no election is made by the Non-Initiating Member, the expiration of the
forty-five (45) Day period within which the Non-Initiating Member could have
sent its election, as applicable.
(b) The
closing of a
purchase pursuant to Section 6.5(a) hereof shall be held in accordance with
the
provisions of Section 6.7 hereof at the principal office of the Company on
a
Business Day agreed to by the Initiating Member and the Non-Initiating Member
that is not more than seventy-five (75) Days after receipt of the written notice
of the election of the Non-Initiating Member or not more than one hundred five
(105) Days after receipt of the Buy-Sell Offer if the Non-Initiating Member
fails to give such notice. At the closing, the Initiating Member’s or
Non-Initiating Member’s, as applicable, ▇▇▇▇▇▇▇ money deposit, together with
interest thereon, shall be credited against the purchase price of the Membership
Interest being purchased; provided, however, that if the closing shall fail
to
occur because of a default by the purchasing Member, the purchasing Member
may
not submit a Buy-Sell Offer, an Offer, or a Sale Offer, for a period of twelve
(12) months after the scheduled closing date, and the selling Member shall
have
the right, as its exclusive remedies, to (i) retain the purchasing Member’s
▇▇▇▇▇▇▇ money deposit, together with interest thereon, as liquidated damages,
it
being agreed that in such instance, the selling Member’s damages would be
difficult, if not impossible, to ascertain, and/or (ii) elect, within sixty
(60)
Days after such default, to purchase the purchasing Member’s Membership Interest
for a cash purchase price equal to the amount that such purchasing Member would
receive under clause (i) or clause (ii) of Section 6.5(a) hereof, as applicable,
provided that such Member includes a ▇▇▇▇ ▇▇▇▇▇▇▇ money deposit equal to five
percent (5%) of such purchase price with its election. Notwithstanding anything
to the contrary contained herein, a Member may not submit a Buy-Sell Offer
in
accordance with this Section 6.5 if (x) a Member has given an Offer in
accordance with Section 6.4 hereof or a Sale Offer in accordance with Section
6.6 hereof, in either case, that is outstanding or pursuant to which a purchase
has not yet been consummated, or (y) a Member is marketing the Property as
provided in Section 6.6 hereof.
6.6 Sale
of
the Property.
(a) If
TRG LLC or
Taubman desires to market and sell the Property to a Third Party, TRG LLC or
Taubman as applicable (the "Triggering
Member”)
shall deliver to
whichever of TRG LLC and Taubman is not the Triggering Member (the “Non-Triggering
Member”)
an irrevocable
offer (the "Sale
Offer”)
in writing
stating a cash purchase price attributable to one hundred percent (100%) of
the
Company’s assets. The Non-Triggering Member shall then have the option to
purchase the Membership Interest of the Triggering Member for cash at a price
equal to the amount (the "Sale
Price")
that the
Triggering Member would receive under Section 8.1(a) hereof, if the Company’s
assets were sold for the purchase price set forth in the Sale Offer and all
of
the liabilities of the Company were satisfied.
The
Non-Triggering
Member shall specify in a notice (a “Trigger
Notice”)
to the
Triggering Member, within forty-five (45) Days after receipt of the Sale Offer,
whether or not it desires to
28
accept
the Sale
Offer and purchase the Membership Interest of the Triggering Member for the
Sale
Price. Such Trigger Notice shall be accompanied by a ▇▇▇▇ ▇▇▇▇▇▇▇ money deposit
equal to five percent (5%) of the purchase price of the Triggering Member’s
Membership Interest if the Non-Triggering Member has elected to purchase the
Triggering Member’s Membership Interest. Failure to give a Trigger Notice that
the Non-Triggering Member has elected to purchase the Membership Interest of
the
Triggering Member (and to deliver the required deposit) within such forty-five
(45) Day period, shall constitute an election to reject the Sale Offer.
If
the Sale Offer
was not so accepted by the Non-Triggering Member, the Triggering Member may
sell
the Property and all other assets of the Company to a Third Party for an all
cash at closing purchase price that is equal to (or greater than) ninety-five
(95%) of the purchase price for one hundred percent (100%) of the Company’s
assets as set forth in the Sale Offer and that provides for no contingent
payments, participation features or other payments other than are customary
to a
Transfer for an all cash at closing purchase price. The closing of any such
sale
to a Third Party shall occur within two hundred ten (210) Days after the
expiration of the forty-five (45) Day period within which the Non-Triggering
Member could have sent the Trigger Notice; otherwise, any such sale shall be
null and void and of no force or effect whatsoever.
(b) The
closing of a
sale by a Triggering Member to a Non-Triggering Member pursuant to Section
6.6(a) hereof shall be held in accordance with the provisions of Section 6.7
hereof at the principal office of the Company on a Business Day agreed to by
the
Triggering Member and the Non-Triggering Member that is not more than one
hundred five (105) Days after receipt of a Trigger Notice. At the closing,
the
Non-Triggering Member’s ▇▇▇▇▇▇▇ money deposit, together with interest thereon,
shall be credited against the purchase price of the Triggering Member’s
Membership Interest; provided, however, that if the closing shall fail to occur
because of a default by the Non-Triggering Member, the Non-Triggering Member
may
not submit a Sale Offer, an Offer, or a Buy-Sell Offer, for a period of twelve
(12) months after the scheduled closing date, and the Triggering Member shall
have the right, as its exclusive remedy, to retain the Non-Triggering Member’s
▇▇▇▇▇▇▇ money deposit, together with interest thereon, as liquidated damages,
it
being agreed that in such instance, the Triggering Member’s damages would be
difficult, if not impossible, to ascertain. Notwithstanding anything to the
contrary contained herein, a Member may not submit a Sale Offer in accordance
with this Section 6.6 if a Member has given an Offer in accordance with Section
6.4 hereof or a Buy-Sell Offer in accordance with Section 6.5 hereof, in either
case, that is outstanding or pursuant to which a purchase has not yet been
consummated.
6.7 Closings.
At the closing of
the purchase of a Member’s Membership Interest pursuant to this Agreement, the
selling Member shall transfer to the Purchasing Member such Membership Interest
(including, without limitation, any rights of the selling Member to receive
(i)
repayment of any loans (other than those secured by the Property) made by it
to
the Company, with any accrued and unpaid interest thereon, (ii) repayment of
such Member’s Capital Contributions, if any, including, in the case of TRG LLC,
any TRG Excess Contributions and any accrued but unpaid Return thereon, (iii)
distributions of Available Cash, and (iv) distributions on termination or
dissolution, free and clear of all liens, security interests, and claims of
others, and shall deliver to the purchasing Member such instruments of transfer
with respect to the assets of the Company and such evidence of due
authorization, execution and delivery, and of the absence of any liens, security
interests, or claims of others as the purchasing Member shall reasonably
request. The instruments of transfer shall be without representations or
warranties except as to the absence of any liens, security interests or claims
of others. The selling Member shall be responsible for any stamp, recording,
transfer, and similar transactional taxes (including any state or local taxes
measured by the gain to such selling Member) payable upon such transfer.
29
At
such closing,
the purchasing Member shall pay the purchase price payable by it, at the option
of the purchasing Member, by good certified or official bank check payable
to
the order of the selling Member or by Fedwire transfer of immediately available
funds. The purchasing Member shall be responsible for obtaining all Third Party
consents necessary to effectuate the purchase and shall also deliver or cause
to
be delivered to the selling Member a release or releases from all recourse
obligations and liabilities of the Company. Notwithstanding anything to the
contrary contained herein, in the event that the purchasing Member is unable
to
obtain Third Party consents necessary to effectuate a sale hereunder (having
used its Best Efforts to do so), it shall send written notice thereof to the
selling Member who may then seek to obtain such Third Party consents. In the
event that one or more Third Party consents necessary to effectuate the sale
has
not been obtained by the date of the closing, any such sale shall be null and
void and of no force of effect. The selling Member shall be entitled to
Available Cash allocable to its Membership Interest through the date of closing.
6.8 Pledge
of Membership Interests.
Each Member (each
being hereinafter referred to as a "Pledging
Member”)
may Pledge all or
any portion of its Membership Interest or any of the proceeds thereof, at any
time subject to the following conditions:
(i) the
Person (the
"Pledgee")
to whom the
Pledging Member’s Membership Interest or the proceeds thereof have been pledged
in accordance with the provisions of this Section 6.8 shall not have the right
to become a substitute Member in the Company;
(ii) in
the event that
the Pledgee begins to effect any of its Pledgee Rights under the loan and/or
pledge agreement, including, without limitation, foreclosure or sale pursuant
to
the applicable commercial code, the Pledging Member shall no longer have any
management, approval, or consent rights provided in this Agreement;
(iii) the
documents
governing the Pledge of all or any portion of the Pledging Member’s Membership
Interest pursuant to this Section 6.8 (the “Pledge
Documents")
shall contain a
provision reasonably acceptable to the other Member (the "Non-Pledging
Member")
providing that
upon the exercise of any of its Pledgee Rights, in no event shall the Pledgee
be
entitled to realize an amount in excess of an amount approved by the
Non-Pledging Member (in its sole discretion) as set forth in the Pledge
Documents; and
(iv) the
Pledge
Documents shall contain a provision reasonably acceptable to the Non-Pledging
Member acknowledging and providing that, notwithstanding anything in this
Agreement or in the Pledge Documents to the contrary, upon a Transfer of the
Pledging Member’s Membership Interest pursuant to the exercise of any of the
Pledgee Rights, the right of first refusal in respect of the Pledging Member’s
Membership Interest provided to the Buyer in Section 6.4 hereof shall apply.
In
the event that the Pledgee Right effected by the Pledgee does not entail a
cash
sale of the Pledging Member’s Membership Interest, the purchase price of the
Pledging Member’s Membership Interest pursuant to Section 6.4 shall equal the
outstanding principal amount of the Pledging Member’s indebtedness to the
Pledgee and any other amounts owed to the Pledgee with respect thereto,
including, without limitation, any and all accrued but unpaid interest thereon.
In the event that the Non-Pledging Member exercises its right of first refusal,
upon payment of the purchase price, the Pledgee (or any other Person acquiring
the Pledging Member’s Membership Interest as a result of the exercise of the
Pledgee Rights) shall Transfer the pledged Membership Interest to the
Non-Pledging Member, free and clear of any lien, pledge, or other encumbrance
associated with the Pledge or the Pledging Member’s
30
obligation
secured
thereby. The Pledgee, the Pledging Member, and the Non- Pledging Member shall
have executed an agreement, in form and substance reasonably satisfactory to
the
Non-Pledging Member, in order to implement the provisions of this Section 6.8.
Any Pledge of a Pledging Member’s Membership Interest that violates the
requirements of this Section 6.8 shall be null and void ab
initio.
ARTICLE
VII
DISABLING
EVENT IN RESPECT OF A MEMBER;
SUCCESSION
OF INTERESTS
7.1 Disabling
Event in Respect of a Member.
(a) For
purposes
hereof:
(i)
a
"Disabling
Event"
means, with
respect to a Member, such Member’s (A) in the case of a Member that is a natural
Person, death, (B) Bankruptcy, (C) in the case of a Member who is a natural
Person, the entry by a court of competent jurisdiction adjudicating him
incompetent to manage his Person or his property, (D) in the case of a Member
who is acting as a Member by virtue of being a trustee of a trust, the
termination of the trust (but not merely the substitution of a new trustee),
(E)
in the case of a Member that is a separate partnership or limited liability
company, the dissolution and commencement of winding up of the separate
partnership or limited liability company, or (F) in the case of a Member that
is
a corporation, the filing of a certificate of dissolution, or its equivalent,
for the corporation or the revocation of its charter and the expiration of
ninety (90) Days after the date of notice to the corporation of revocation
without a reinstatement of its charter;
(ii)
a
"Disabled
Member”
shall be a Member
who has suffered a Disabling Event or an Event of Withdrawal; and
(iii)
a
"Successor"
shall be, with
respect to a Disabled Member, such Disabled Member’s successor(s) in interest,
personal representative(s), heirs at law, legatee(s), or estate; and
(iv)
"Event
of
Withdrawal"
means, with
respect to a Member, such Member’s retirement, resignation, other withdrawal
from the Company pursuant to the Limited Liability Company Law or any other
event (which is not a Disabling Event) that causes a Member to cease to be
a
member under the Limited Liability Company Law.
(b) Upon
the occurrence
of a Disabling Event or an Event of Withdrawal in respect of a Member, the
Company shall not be dissolved, but shall be continued, and the Successor to
such Disabled Member, subject to Section 6.2 hereof, shall have the rights
of
such Disabled Member in the Company subject to the terms and provisions of
this
Agreement.
7.2 Single
Representative to Act on Behalf of Successors.
In the event that
a Member’s Membership Interest is, at any time during the term of this Agreement
(including any period of dissolution and winding up of the Company), held by
more than one Person, then all of the Persons holding such Member’s original
Membership Interest shall forthwith, but in any event within thirty (30) Days
after the date on which the Membership Interest of such Member is held by more
than a single Person, designate one or more individuals as their collective
authorized
31
representative(s)
for purposes of Section 5.2 hereof, who shall each have the power and authority,
acting alone, to represent and bind and act on behalf of all of the Members
so
joined together and represented in connection with all matters relating to
this
Agreement or the Company. An authorized representative designated as required
herein shall act at the direction of that Member or those Members, represented
by such authorized representative, who at the relevant time holds or
collectively hold, as the case may be, a Percentage Interest which is in excess
of fifty percent (50%) of the total Percentage Interest held by all the Members
represented by such authorized representative.
7.3 Succession
by Individuals to Membership Interests of Members.
In the event that
any individual succeeds to the interest of any Member in accordance with the
terms of this Agreement, then the interest of such individual Member in the
Company, subject to the provisions of Section 7.2 hereof, may be:
(i) Transferred
or
disposed of by will or intestacy to or for the benefit of any
member or
members of the deceased Member’s Immediate Family; or
(ii) Transferred
during
his lifetime or at his death to a Family Trust for such individual.
7.4 References
to "Member" and "Members" in the Event of Successors.
In the event that
a Member’s Membership Interest is held by one or more successors to such Member,
references in this Agreement to "Member" and "Members" shall refer, as
applicable and except as otherwise provided herein, to the collective Membership
Interests of all successors to the Membership Interest of such Member; and
all
decisions, consents, approvals, determinations, actions, and selections of
the
Members (to the extent any such decisions, consents, approvals, determinations,
actions, and selections of the Members are provided for in this Agreement)
and
the Company shall, as herein provided but subject to the provisions of Article
VII hereof, require the decision, consent, approval, determination, action,
or
selection of such Member or an authorized representative of all of the
successors to the Membership Interest of such Member (acting in the manner
provided in Section 7.2 hereof).
|
7.5
|
Waiver
of Dissolution if Transfer is in Full Compliance with Agreement;
Negation
of Right to Dissolve Except as Herein Provided; No
Withdrawal.
|
(a) Each
of the Members
hereby waives its right to terminate or cause the dissolution of the Company
(as
such right is provided under the Limited Liability Company Law) upon the
Transfer of any Member’s Membership Interest, provided that any such Transfer is
permitted by and completed fully in accordance with the terms of this Agreement.
(b) Except
as provided
in this Agreement, no Member shall have the right to terminate this Agreement
or
dissolve the Company by such Member’s express will.
(c) No
Member shall
have any right to retire, resign, or otherwise withdraw from the Company and
have the value of such Member’s Membership Interest ascertained and receive an
amount equal to the value of such Membership Interest.
(d) In
the event that a
Member withdraws from the Company in breach of this Agreement but pursuant
to
such Member’s statutory rights under the Limited Liability Company Law, to the
extent that such rights exist in the face of a prohibition against withdrawal
in
this Agreement, then the value of such Member’s Membership Interest shall be
ascertained in
32
accordance
with
Section 7.6 hereof and the Limited Liability Company Law, and such Member shall
receive from the Company in exchange for the relinquishment of such Member’s
Membership Interest an amount equal to the value of such Member’s Membership
Interest as so determined less twenty-five percent (25%) of such value as
liquidated damages and not as a penalty. In no event shall a Member be
considered to have withdrawn from the Company solely as a result of such Member
having suffered a Disabling Event.
7.6 Determination
of Fair Market Value of Membership Interests.
Solely for
purposes of Section 7.5(d) hereof, if it shall be necessary to determine the
fair market value of a Member’s Membership Interest, fair market value shall be
equal to the amount, determined as hereinafter set forth in this Section 7.6,
that would be distributed to such Member pursuant to Section 8.1(a) hereof,
assuming no reserves have been established by the Managing Member and that
there
are no costs attendant upon such liquidation, but taking into account any and
all allocations pursuant to Section 4.1, Section 4.2, and Section 4.3 hereof
and
distributions pursuant to Section 4.5 hereof through the date of such
determination, if all of the assets of the Company were sold for their fair
market value; provided, however, that (i) the fair market value of such
Membership Interest shall be reduced by the amount of any distributions made
to
the Member whose Membership Interest is being sold subsequent to the date of
the
balance sheet to be prepared pursuant to this Section 7.6, (ii) the fair market
value of such Membership Interest shall be further reduced by the fees of the
Auditor and appraisers for the services rendered by them in accordance with
this
Section 7.6, and (iii) any indebtedness to the Company of the Member whose
Membership Interest is to be sold at the date of the consummation of the
purchase shall be paid to the Company in repayment of such indebtedness (such
repayment to be treated as having occurred immediately prior to the
sale).
To
determine the
fair market value of the Company’s assets, the Auditor shall prepare a balance
sheet for the Company as of the last Day of the month preceding the date of
the
event giving rise to the necessity to determine fair market value (the
"Valuation
Date").
Such balance
sheet shall be prepared in the manner in which prior balance sheets of the
Company have been consistently prepared. The Auditor shall then determine the
excess of the total assets of the Company over the total liabilities of the
Company (the "Net
Value").
Net Value shall
be adjusted to reflect (1) the actual value of any negotiable securities
included in the Company’s assets on the Valuation Date, and (2) the fair market
value of all the Company’s real property (taking into account any participation
features of any debt encumbering such property), including all improvements
thereon and thereto, and other assets of the Company based upon an appraisal
of
the Company’s real property by a member of the American Institute of Real Estate
Appraisers and an appraisal of the other assets of the Company by a qualified
appraiser, each such appraiser to be selected jointly by the Members. If the
Members are unable to agree upon an appraiser, then each Member shall appoint
an
appraiser. The appraisals shall be averaged to calculate the appraised fair
market value of the Company’s property unless such appraisals differ by more
than five percent (5%) of the lower appraisal, in which event, the two (2)
appraisers shall select a third appraiser who shall independently appraise
the
Company’s property. The appraised fair market value of the Company’s property
shall then be the average of those appraisals which differ from the middle
appraisal by less than five percent (5%) of the lowest appraisal. If none of
the
appraisals differ from the middle appraisal by less than five percent (5%)
of
the lowest appraisal, then the value of the middle appraisal shall be the
appraised fair market value of the Company’s property. The fee of each of the
appraisers shall be borne by the selling Member.
Ninety
(90) Days
after the preparation of any such balance sheet, the Auditor shall prepare
an
adjusted balance sheet, in the manner set forth above, for the Company, to
reflect disputed and/or unknown operating income and expense items and real
estate tax increases for the current
33
year
if actual real
estate taxes are unknown at the time the initial balance sheet is prepared
(the
"Adjustments").
The Managing
Member shall provide the Non-Managing Member with written notice (an
"Adjustment
Notice")
of the
Adjustments within ten (10) Days after the Auditor’s determination thereof. The
fair market value of the Company’s assets and the fair market value of a
Member’s Membership Interest shall be adjusted to reflect the Adjustments. The
selling Member or the acquiring Member, as the case may be, shall pay to the
other, within ten (10) Days after the receipt of the Adjustment Notice, the
net
amount due such Member, based upon the Adjustments. The provisions of this
Section 7.6 shall survive the dissolution and termination of the
Company.
ARTICLE
VIII
WINDING
UP,
LIQUIDATION, AND
TERMINATION
OF THE COMPANY
8.1 Liquidation
of the Assets of the Company and Disposition of the Proceeds
Thereof.
(a) Upon
the
dissolution of the Company, the Managing Member (unless the Managing Member
shall have suffered a Disabling Event in which event the Non-Managing Member)
(herein referred to as the "Liquidator")
shall proceed to
wind up the affairs of the Company, liquidate the property and assets of the
Company, and terminate the Company, and the proceeds of such liquidation shall
be applied and distributed in the following order of priority:
(1) to
the expenses of
liquidation: and then
(2) to
the payment of
the debts and liabilities of the Company owing to Persons other than Members
and
their Affiliates; and then
(3) to
the
establishment of any reserves that the Liquidator deems necessary or appropriate
to provide for any contingent or unforeseen liabilities or obligations of the
Company (other than those owing to Members) or of the Members arising out of
or
in connection with the Company (which reserves may be held by a liquidating
trust established for the benefit of the Members for the purpose of liquidating
Company assets, collecting amounts owed to the Company, and paying any
contingent or unforeseen liabilities of the Company); provided, however, that
after the expiration of a one year period, any excess reserves remaining shall
be distributed in the manner hereinafter provided in this Section 8.1(a); and
then
(4) to
the satisfaction
of any obligations of the Company to Members and/or their Affiliates not
otherwise provided for in this Section 8.1(a); and then
(5) to
TRG LLC in an
amount equal to any accrued but unpaid Return on the TRG Excess Contributions;
and then
(6)
to
TRG LLC in an
amount equal to the TRG Excess Contributions to the extent that the TRG Excess
Contributions have not been previously distributed to TRG LLC; and
then
(7) to
the Members in
proportion to and to the extent of their positive Capital Account balances.
For
this purpose, the determination of the Members’ 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 4.1, Section
4.2, and Section 4.3 hereof and distributions pursuant to Section 4.5 hereof
and
clauses (5) and (6) of this
34
Section
8.1(a)
through the Fiscal Year of liquidation of the Company. Subject to the provisions
of clause (3) of this Section 8.1(a), all distributions pursuant to this Section
8.1 shall be made by the end of the fiscal year of liquidation (or, if later,
within ninety (90) Days after the date of such liquidation).
(b) Subject
to the
requirements of Regulations Section 1.704-1(b)(2)(ii)(b)(2) a reasonable time
shall be allowed for the orderly liquidation of the property and assets of
the
Company and the payment of the debts and liabilities of the Company in order
to
minimize the losses normally attendant upon a liquidation.
(c)
Each
Member hereby
appoints the Liquidator as its true and lawful attorney-in-fact to hold,
collect, and disburse, in accordance with this Agreement, the applicable
requirements of Regulations Section 1.704-1(b), and the terms of any receivables
existing at the time of the termination of the Company and the proceeds of
the
collection of such receivables, including those arising from the sale of Company
property and assets. Notwithstanding anything to the contrary in this Agreement,
the foregoing power of attorney shall terminate upon the distribution of the
proceeds of all such receivables in accordance with the provisions of this
Agreement.
(d) Notwithstanding
anything to the contrary contained in this Section 8.1, but subject to Section
5.1(c) hereof, if the Liquidator shall determine not to liquidate the property
and assets of the Company because the property and assets are not assignable
to
other than the Members or because a complete liquidation of all of the property
and assets of the Company would involve substantial losses or be impractical
under the circumstances or for any other reason or for no given reason, the
Liquidator shall liquidate that portion of the assets of the Company sufficient
to pay the expenses of liquidation and the debts and liabilities of the Company
(excluding the debts and liabilities of the Company to the extent that they
are
adequately secured by mortgages on, or security interests in, assets of the
Company or to the extent adequate provision is made for such debts and
liabilities), and the remaining assets shall be distributed to the Members
as
tenants-in-common or partitioned in accordance with applicable statutes or
apportioned in accordance with the provisions of Section 8.1(a) hereof, or
distributed in such other reasonable manner, not inconsistent with the economic
effect of Section 8.1(a) hereof and applicable requirements of Regulations
Section 1.704-1 and within the time period therein set forth, as shall be
reasonably determined by the Liquidator. The distribution of such remaining
assets to the Members shall be made subject to any mortgages or security
interests encumbering such assets.
8.2 Cancellation
of Certificates.
After the affairs
of the Company have been wound up, the property and assets of the Company have
been liquidated, and the proceeds thereof have been applied and distributed
as
provided in Section 8.1(a) hereof (and/or, if applicable, there has been a
distribution of property and assets, as provided in Section 8.1(d) hereof),
and
the Company has been terminated, the Members shall execute, deliver, and file
a
certificate of cancellation of the Certificate of Formation.
ARTICLE
IX
MISCELLANEOUS
9.1 Exculpation.
Except in the case
of fraud, willful misconduct, gross negligence, or a material breach of this
Agreement, the doing of any act or the failure to do any act by a Member, the
effect of which may cause or result in loss or damage to the Company, if done
in
good faith to promote the interests of the Company and if not done in material
violation of the provisions of this Agreement, shall not subject such Member
to
any personal liability.
35
9.2 Notices.
(a)
Any
and all
notices, consents, offers, elections, and other communications (hereinafter
referred to collectively as the "Communications"
and individually
as a "Communication")
required or
permitted under this Agreement shall be deemed adequately given only if in
writing.
(b)
All
Communications
to be sent hereunder shall be given or served only if addressed to a Member
at
its address set forth in the records of the Company, and if delivered by hand
(with delivery receipt required) or delivered by certified mail, return receipt
requested, or Federal Express or similar expedited overnight commercial carrier.
All such notices, demands, and requests shall be deemed to have been properly
given or served, if delivered by hand, or mailed, on the date of receipt or
of
refusal to accept shown on the delivery receipt or return receipt, and, if
delivered by Federal Express or similar expedited overnight commercial carrier,
on the date that is one Day after the date upon which the same shall have been
delivered to Federal Express or similar expedited overnight commercial carrier,
addressed to the recipient, with all shipping charges prepaid, provided that
the
same is actually received (or refused) by the recipient in the ordinary course.
The time to respond to any Communication given pursuant to this Agreement shall
run from the date of receipt or confirmed delivery.
(c)
All
Communications
shall be addressed:
If
to TRG LLC, to:
The
Taubman Company
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.
If
to Taubman,
to:
The
Taubman Asset
Group
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(d)
By
giving to the
other parties written notice thereof, the parties hereto and their respective
successors and assigns shall have the right from time to time and at any time
during the term of this Agreement to change the Person(s) to receive notice
and
their respective addresses effective upon receipt by the other parties of such
notice, and each shall have the right to specify as its address any other
address within the United States of America.
9.3
Applicable
Law.
This Agreement
shall be governed by, and construed in accordance with, the laws (other than
the
law governing choice of law) of the State of California. In the event of a
conflict between any provision of this Agreement and any non-mandatory provision
of the Limited Liability Company Law, the provision of this Agreement shall
control and take precedence.
9.4 Word
Meanings; Gender.
The words such as
"herein," "hereinafter," "hereof," and "hereunder" refer to this Agreement
as a
whole and not merely to a subdivision in which such
36
words
appear unless
the context otherwise requires. The singular shall include the plural and the
masculine gender shall include the feminine and neuter, and vice versa, unless
the context otherwise requires.
9.5 Section
Titles.
Section titles are
for descriptive purposes only and shall not control or alter the meaning of
this
Agreement as set forth in the text.
9.6
Entire
Agreement.
This Agreement
contains the entire agreement between the parties hereto relative to the
Company.
9.7
Waiver.
No consent or
waiver, express or implied, by a Member to or of any breach or default by
another Member in the performance by such other Member of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance by such other Member of the same
or
any other obligation of such Member hereunder. A consent or waiver by a Member
to any breach or default by the other Member under this Agreement shall be
effective only if in writing and signed by the Member against whom enforcement
of the consent or waiver is sought. Failure on the part of a Member to object
to
any act or failure to act of another Member or to declare another Member in
default, irrespective of how long such failure continues, shall not constitute
a
waiver by such Member of its rights hereunder.
9.8
Separability
of Provisions.
Each provision of
this Agreement shall be considered separable and if for any reason any provision
or provisions herein are determined to be invalid, unenforceable, or illegal
under any existing or future law, such invalidity, unenforceability, or
illegality shall not impair the operation of or affect those portions of this
Agreement that are valid, enforceable, and legal.
9.9
Binding
Agreement.
Subject to the
restrictions on Transfers set forth herein, this Agreement shall inure to the
benefit of and be binding upon the undersigned Members and their respective
successors and assigns. Whenever, in this Agreement, a reference to any party
or
Member is made, such reference shall be deemed to include a reference to the
permitted successors and assigns of such party or Member.
9.10
Equitable
Remedies.
Except as
otherwise provided in this Agreement, the rights and remedies of the Members
hereunder shall not be mutually exclusive,
i.e.,
the
exercise of a
right or remedy under any given provision hereof shall not preclude or impair
exercise of any other right or remedy hereunder. Each of the Members confirms
that damages at law may not always be an adequate remedy for a breach or
threatened breach of this Agreement and agrees that, in the event of a breach
or
threatened breach of any provision hereof, the respective rights and obligations
hereunder shall be enforceable by specific performance, injunction, or other
equitable remedy, but nothing herein contained is intended to, nor shall it,
limit or affect any rights at law or by statute or otherwise of any party
aggrieved as against the other for a breach or threatened breach of any
provision hereof.
9.11
Partition.
No Member nor any
successor-in-interest to a Member shall have the right while this Agreement
remains in effect to have any property of the Company partitioned, or to file
a
complaint or institute any proceeding at law or in equity to have such property
of the Company partitioned, and each Member, on behalf of itself and its
successors and assigns, hereby waives any such right. It is the intention of
the
Members that the rights of the parties hereto and their successors-in-interest
to Company property, as among themselves, shall be governed by the terms of
this
Agreement, and that the rights of the Members and their
successors-in-
37
interest
to
Transfer any interest in the Company shall be subject to the limitations and
restrictions set forth in this Agreement.
9.12 Amendment.
Except as provided
in Section 3.1(d) hereof, a proposed amendment to this Agreement may be adopted
and effective as an amendment hereto only upon the written agreement of all
of
the Members.
9.13
No
Third
Party Rights Created Hereby.
The provisions of
this Agreement are solely for the purpose of defining the interests of the
Members, inter
se;
and no other
Person, firm, or entity (i.e.,
a party who is not
a signatory hereto or a permitted successor to such signatory hereto) shall
have
any right, power, title, or interest by way of subrogation or otherwise, in
and
to the rights, powers, titles, and provisions of this Agreement.
9.14
Liability
of Members.
Except as
otherwise provided in this Agreement, any liability or debt of the Company
shall
first be satisfied out of the assets of the Company, including the proceeds
of
any liability insurance which the Company may recover, and thereafter, in
accordance with the applicable provisions of the Limited Liability Company
Law.
9.15
Additional
Acts and Instruments.
Each Member hereby
agrees to do such’ further acts and things and to execute any and all
instruments necessary or desirable and as reasonably required in the future
to
carry out the full intent and purpose of this Agreement.
9.16
Organization
Expenses.
The Members
authorize the Company to elect, pursuant to Section 709(b) of the Code, to
deduct in the taxable year the Company began business amounts paid or incurred
to organize the Company to the extent, if any, permitted by Section 709(b)
of
the Code and to amortize the balance of the organizational expenses over a
period of one hundred eighty (180) months beginning in the taxable year the
Company began business.
9.17
Agreement
in Counterparts.
This Agreement may
be executed in two (2) or more counterparts, all of which as so executed shall
constitute one Agreement, 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 Agreement shall become effective
and binding unless and until all parties hereto have duly executed this
Agreement, at which time this Agreement shall then become effective and binding
as of the date first-above written. Any executed counterpart of this Agreement
that is delivered by facsimile transmission or other electronic transmission
shall be deemed to have been fully and properly executed and delivered for
all
purposes of this Agreement.
9.18
Attorneys-in-Fact.
Any Member may
execute a document or instrument or take any action required or permitted to
be
executed or taken under the terms of this Agreement by and through an
attorney-in-fact duly appointed for such purpose (or for purposes including
such
purpose) under the terms of a written power of attorney (including any power
of
attorney granted herein).
9.19
Consents,
Approval, Etc.
Whenever the
consent or approval of a Member is required under any provision of this
Agreement or a matter is subject to the satisfaction of a Member, then, except
as otherwise specifically provided in this Agreement, such Member shall not
unreasonably withhold or delay such consent or approval and shall not be
unreasonable or delay in deciding whether such matter is
satisfactory.
38
IN
WITNESS WHEREOF,
the undersigned have executed this Agreement as of the date first-above
written.
TRG
SUNVALLEY LLC,
a Delaware limited liability company
|
By:
|
The
Taubman
Realty Group Limited Partnership, a Delaware limited partnership
|
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ _____
▇▇▇▇▇
▇. ▇▇▇▇▇▇,
Authorized Signatory
AND:
TILC-SV,
LLC, a
Michigan limited liability company
|
By:
|
The
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Revocable Trust dated August 9, 1982, as amended, a
manager
|
By:/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇,
Trustee
39
EXHIBIT
A
Legal
Description
The
land referred
to is situated in the County of Contra Costa, City of Concord, State of
California, and is described as follows:
PARCEL
ONE:
All
that portion of
the Rancho Monte Del Diablo designated “Parcel One” in that certain Decree
Quieting Title, entered in ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇,
a
certified copy of which was recorded November 29, 1957 in Book 3082 of Official
Records, Page 495, being the portion thereof designated “Parcel Three” in the
Deed from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ recorded November 15, 1961
in
Book 3995 of Official Records, Page 262, which portion is more particularly
described as follows:
BEGINNING
at the
most Southerly corner of said “Parcel One” (3082-OR-495); thence, along the
exterior boundary thereof North 07° 14’ 34” West 2860.93 feet (to the South line
of the parcel of land firstly described in the Deed from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
et
ux, to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, et al, recorded February 5, 1925 in Book 482 of Deeds,
at Page 372); thence (along the South line of ▇▇▇▇▇▇▇▇) North 79° 59’ 40” East
722.04 feet (to the Eastern line of the land described secondly in 482-Dds-372);
thence North 09° 55’ 06” West 318.24 feet to the intersection thereof with the
Southwesterly line of the land designated “Parcel One” in the Deed to the State
of California recorded March 29, 1962 in Book 4086 of Official Records, at
Page
235; thence, along the Southwesterly line of said State land: South 32° 17’ 20”
East 1240.77 feet; South 26° 54’ 09” East 1001.11 feet; Southwesterly along the
arc of a curve to the Right, with a radius of 125.00 feet, tangent to the last
mentioned course, 159.09 feet; South 42° 48’ 36” West, tangent to the last
mentioned curve, 205.65 feet; and South 38° 44’ 22” East 30.05 feet to the
Southeasterly line of “Parcel One” of said Decree Quieting Title (3082-OR-495);
thence South 51° 16’ 07” West, along said Southeasterly line, to the Point of
Beginning.
EXCEPT
the portion
of the aforesaid land described in Deed to City of Concord, a California general
law city, recorded February 27, 1963 in Book 4311 of Official Records, at Page
647, to wit: BEGINNING on the East line of the State Highway leading from
▇▇▇▇▇▇▇ to Walnut Creek, at the Southern corner of the tract of land described
as “Parcel One” in the Decree of Distribution (in the Matter of the Estate of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇), a certified copy of which was recorded April 7, 1959 in Book
3350 of Official Records, at Page 100; thence North 07° 18’ 20” West, along said
East line, 700.00 feet; thence North 82° 41’ 40” East 20.00 feet; thence South
08° 22’ 00” East 270.05 feet to a point, hereinafter referred to as Station “A”;
thence South 12° 00’ 00” East 292.71 feet to a point on the arc of a tangent
curve to the Left, having a radius of 30.00 feet; thence Southerly and Easterly
on said curve, through an angle of 113°00’ 00”, an arc distance of 59.17 feet;
thence North 55° 00’ 00” East 292.47 feet to a line drawn parallel with and
30.00 feet Northwesterly, measured at right angles, from the Southeast line
of
said Decree’s “Parcel One” (3350-OR-100); thence North 51° 16’ 07” East, along
said parallel line, 1197.84 feet; thence South 38° 43’ 06” East 30.00 feet to
said Southeast line (“Parcel One” 3350-OR-100); thence South 51° 16’ 07” West,
along said Southeast line, 1628.39 feet to the Point of Beginning.
AND
EXCEPT the
interest of the City of Pleasant Hill, a California municipal corporation,
by
Deed recorded January 1, 1966 in Book 5062 of Official Records, at Page 8,
as to
that portion of the foregoing land described as follows: BEGINNING at the
Northwestern corner of the parcel
of
land described
as Parcel Two-C in the Lis Pendens recorded July 29, 1960 in Book 3671 of
Official Records, at Page 76 (being the same parcel of land described in Deed
to
the City of Concord recorded in Book 4311 of Official Records, at Page 647);
thence North 07° 14’ 34” West 2160.88 feet to the Southerly line of the 22.16
acre parcel of land described in Deed to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, et al, recorded
February 5, 1925 in Book 482 of Deeds, at Page 372; thence North 80° 00’ 11”
East 16.89 feet; thence South 07° 18’ 19” East 2161.65 feet; thence South 82°
41’ 40” West 20.00 feet to the Point of Beginning.
ALSO
EXCEPT the
portion of the aforesaid land designated “Parcel One” in the Deed to the State
of California recorded August 21, 1978 in Book 8975 of Official Records, at
Page
108, being more particularly described as follows: COMMENCING at the
Southeasterly terminus of that certain course described as “N. 26° 54’ 09” W.,
1001.11 feet” in “Parcel 1” of the Deed to the State of California recorded
March 29, 1962 in Book 4086 of Official Records, at Page 235; thence, along
the
general Southwesterly line of said “Parcel 1”, from a tangent that bears South
26° 54’ 09” East, along a curve to the Right, with a radius of 125.00 feet,
through an angle of 69° 42’ 45”, an arc length of 152.00 feet and South 42° 48’
36” West 176.22 feet; thence North 25° 53’ 01” West 44.94 feet; thence North 37°
19’ 32” West 136.13 feet; thence along a tangent curve to the Right, with a
radius of 250.00 feet, through an angle of 59° 40’ 50”, an arc length of 260.41
feet to a point of reverse curvature; thence, along a tangent curve to the
Left,
with a radius of 550.00 feet, through an angle of 43° 18’ 04”, an arc length of
415.66 feet to said general Southwesterly line of “Parcel 1” (4086-OR-235);
thence, along last said line, South 26° 54’ 09” East 594.74 feet to the Point of
Commencement.
AND
ALSO EXCEPT the
interest dedicated to the City of Concord by that certain Offer recorded
September 28, 1978 in Book 9030 of Official Records, at Page 665, and accepted
by Resolution recorded November 19, 1979 in Book 9085 of Official Records,
at
Page 354, the affected land being more particularly described as follows:
BEGINNING at the most Westerly corner of the land described as “Parcel 1” in the
Deed from ▇▇▇▇▇▇▇, et al, to the State of California recorded March 29, 1962
in
Book 4086 of Official Records, at Page 235, being the “True Point of
Commencement” described in said Deed and lying on the Northwesterly line of
Willow Pass Road, 110.00 feet in width; thence, along the Northwesterly line
of
Willow Pass Road, South 51° 15’ 38” West 314.00 feet; thence leaving said line,
at right angles, North 38° 44’ 22” West 29.00 feet; thence North 51° 15’ 38”
East 12.00 feet; thence South 83° 44’ 10” East 31.12 feet to a point 7.00 feet
(measured at right angles) from said Northwesterly line of Willow Pass Road;
thence, parallel to said line, North 51° 15’ 38” East 327.12 feet to a point on
the Northwesterly line the aforementioned State Parcel (4086-OR-235); thence,
along said line, South 42° 48’ 36” West 47.63 feet to the Point of
Beginning.
AND
FURTHER EXCEPT
all of the aforesaid land encompassed with the boundaries of the land shown
and
designated Parcels “A” and “B” on Parcel Map MSC 36-80 filed January 27, 1981 in
Book 92 of Parcel Maps, at Page 7, in the Office of the Contra Costa County
Recorder.
APN(s):
▇▇▇-▇▇▇-▇▇▇, 024 and 025
PARCEL
TWO:
Parcel
“A”
as
shown
on Parcel Map MSC 36-80, filed January 27, 1981 in Book 92 of Parcel Maps,
at
Page 7, in the Office of the Contra Costa County Recorder.
APN(s):
▇▇▇-▇▇▇-▇▇▇
and 022
PARCEL
THREE:
Parcel
“B”
as
shown
on the Parcel Map MSC 36-80, filed January 27, 1981 in Book 92 of Parcel Maps,
at Page 7, in the Office of the Contra Costa County Recorder.
EXCEPT
all that
real property interest contained or created in those certain Quitclaim Deeds
to
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Stores, Inc., a California corporation, recorded January
29,
1982 in Book 10660 of Official Records, at Pages 114 and 118, under respective
Recorder’s Serial Numbers 82-10034 and 82-10035, being more particularly
described as:
All
buildings,
structures and other improvements, together with all fixtures located and to
be
located in or on Parcel “B” as shown on the Map of MSC 36-80, filed January 27,
1981 in Book 92 of Parcel Maps, at Page 7, in the Office of the Contra Costa
County Recorder, which buildings, structures, improvements and fixtures are
and
shall remain real property.
APN:
▇▇▇-▇▇▇-▇▇▇
Exhibit
B
Members
of
Taubman
|
Name
of Member
|
Membership
Interest
|
|
The
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Revocable Trust dated August 9, 1982, as amended
|
16.66666666%
|
|
The
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ Revocable Trust dated June 10, 1993
|
16.66666666%
|
|
The
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Revocable Trust dated March 22, 1981, as
amended.
|
1.0%
|
|
The
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Irrevocable Trust, under the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable
Trust
Agreement dated May 2, 2006
|
4.16666666%
|
|
The
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Irrevocable Trust, under the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable
Trust
Agreement dated May 2, 2006
|
4.16666666%
|
|
The
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Irrevocable Trust, under the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable
Trust
Agreement dated May 2, 2006
|
4.16666666%
|
|
The
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Irrevocable Trust, under the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable
Trust
Agreement dated May 2, 2006
|
4.16666666%
|
|
The
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Irrevocable Trust, under the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable
Trust
Agreement dated December 14, 2006
|
8.33333333%
|
|
The
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Irrevocable Trust, under the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable
Trust
Agreement dated December 14, 2006
|
8.33333333%
|
|
The
PTK 2000
Trust, under Trust Agreement dated May 26, 2004
|
16.16666666%
|
|
The
JTK
Trust, under Trust Agreement dated May 26, 2004
|
16.16666666%
|