PRIVATE PLACEMENT PURCHASE AGREEMENT
GS-MSD Select Sponsors, L.P.
c/o Goldman, Xxxxx & Co.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Ladies and Gentlemen:
1. Certain Representations; Opinions of Counsel
(a) The Taubman Realty Group Limited Partnership (the "Company") and
Taubman Centers, Inc., the managing general partner of the Company
("TCO"), represent and warrant to the undersigned ("Subscriber") as
follows:
(i) TCO has made with the Securities Exchange Commission ("SEC") all
filings required to be made by it (the "SEC Reports"). Since
September 30, 1998, the Company has not been, and is not,
required to file any reports with the SEC. The SEC Reports were
prepared and filed in compliance with the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or the Securities Act
of 1933, as amended (the "Securities Act"), as applicable, and
the rules and regulations promulgated by the SEC thereunder, and
did not, as of their respective dates, contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not
misleading. The financial statements and the interim financial
statements of TCO included in the SEC Reports were prepared in
accordance with generally accepted accounting principles (except
as may be indicated in the notes thereto) and fairly presented
the financial condition and results of operations of TCO and its
subsidiaries as at the dates thereof and for the periods then
ended, subject, in the case of the interim financial statements,
to normal year-end adjustments and any other adjustments
described therein;
(ii) there has been no material adverse change in or affecting the
business, assets or financial condition of the Company since the
most recent such filing;
(iii)the Company and TCO have all requisite corporate and limited
partnership authority and power to execute and deliver this
Private Placement Purchase Agreement, the Registration Agreement
(as hereinafter defined), the Certificate with Respect to Tax
Matters of even date herewith executed
and delivered by the Company, and the Designation, Distribution,
Redemption, Exchange, and Consent Provisions with Respect to the
9% Series D Cumulative Redeemable Preferred Equity of the Company
(collectively, the "Transaction Documents") and to consummate the
transactions contemplated thereby. The execution and delivery of
the Transaction Documents and the consummation of the
transactions contemplated thereby have been duly and validly
authorized by all requisite corporate or limited partnership
action on the part of the Company and TCO, and no other
proceedings on the part of the Company or TCO are necessary to
authorize the Transaction Documents or to consummate the
transactions contemplated hereby. The Transaction Documents have
been duly and validly executed and delivered by the Company and
TCO. The Transaction Documents constitute valid and binding
obligations of the Company and TCO, enforceable in accordance
with their terms;
(iv) neither the execution, delivery nor performance of the
Transaction Documents by the Company or TCO will conflict with,
result in a default, right to accelerate or loss of rights under,
or result in the creation of any lien, charge or encumbrance
pursuant to, any provision of the Company's or TCO's
organizational documents or any franchise, mortgage, deed of
trust, lease, license, agreement, understanding, law, rule or
regulation or any order, judgement or decree to which the Company
or TCO is a party or by which the Company or TCO may be bound or
affected;
(v) the 1998 financial statements of the Company and TCO, including
the notes thereto, and supporting schedules have been prepared in
conformity with GAAP applied on a consistent basis (except as
otherwise noted therein) and present fairly the financial
position of the Company and TCO as of the dates indicated and the
results of its operations for the periods shown;
(vi) there is no action, suit, proceeding or investigation pending or,
to the Company's or TCO's knowledge, currently threatened against
the Company or TCO that questions the validity of any of the
Transaction Documents or the issuance of Parity Preferred Equity
(as defined below), or the right of the Company or TCO to enter
into any of the Transaction Documents or to consummate the
transactions contemplated thereby or that could reasonably be
expected to interfere with the ability of the Company or TCO to
perform their obligations thereunder;
(vii)the Equity (as defined below) when issued, sold and delivered by
the Company, shall be duly and validly issued and outstanding,
fully paid, and non-assessable and will be free of any liens,
claims, security interests, encumbrances, restrictions or rights
of third parties of any kind
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(collectively, "Encumbrances"). The Shares (as defined below)
when issued in redemption of the Equity, shall be duly and valued
issued and outstanding, fully paid, and non-assessable and will
be free of any Encumbrances;
(viii) a true and complete copy of the Company's Partnership Agreement
is set forth as Exhibit A hereto. There are no interests in the
Company authorized, issued or outstanding that rank senior to, or
on a parity with, the Equity with respect to liquidation, winding
up, dividends or distributions other than the Series A Preferred
Equity and Series C Preferred Equity. There are no equity
interests in TCO authorized, issued or outstanding that rank
senior to, or on a parity with, the Shares with respect to
liquidation, winding up, dividends or distributions other than
the Series A Preferred Stock of TCO, the Series B Preferred Stock
of TCO and the Series C Preferred Stock of TCO, and TCO will not
authorize, create or issue any such senior equity interests
without the prior written consent of Subscriber; and
(ix) the foregoing representations and warranties will continue to be
true and correct on the Closing Date (as defined below).
(b) The Company will make the tax and securities representations set forth
on Exhibit B on the Closing Date.
(c) Counsel to the Company and TCO is concurrently herewith rendering an
opinion to Subscriber attached hereto as Exhibit C.
2. Sale of Equity
(a) The Company hereby agrees to sell to Subscriber, and Subscriber hereby
agrees to purchase from the Company, $25,000,000 of Series D Preferred
Equity of the Company (the "Equity"). The purchase price of the Equity
is $25,000,000, and is payable in cash at the Closing (as defined
below).
(b) The sale and purchase of the Equity (the "Closing") shall take place
at the offices of Subscriber on November 24, 1999 (the "Closing
Date").
(c) On the Closing Date, Subscriber shall, if the condition set forth in
Section 2(d) below is satisfied on the Closing Date, pay to the
Company by wire transfer of immediately available funds the purchase
price of the Equity purchased by such Subscriber, against delivery to
the Subscriber of each of the documents set forth on Schedule A
attached hereto.
(d) It shall be a condition to the Closing that the Company's and TCO's
representations and warranties hereunder then continue to be true and
correct.
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3. Registration
(a) TCO will file a registration statement with respect to the Series D
Preferred Stock to be issued to the Company upon exchange of the
Equity (the "Shares"), into such shares, in accordance with the
Registration Rights Agreement attached hereto as Exhibit D (the
"Registration Agreement") which is being executed and delivered
simultaneously herewith.
4. Covenants of the Company and TCO
(a) No later than June 30, 2000, TCO shall amend its Restated Articles of
Incorporation so that TCO will have the authority to issue additional
shares of preferred stock. Simultaneously therewith, TCO shall amend
its series designation creating the Series D Preferred Stock to
increase the number of shares of Series D Preferred Stock constituting
the series to an amount not less than 250,000 shares. Thereafter,
subject to the Second Amendment and Restatement of Agreement of
Limited Partnership of the Company, as amended, including the
Designation, Redemption, Exchange, and Voting Provisions with Respect
to the Series D Preferred Equity (the "Partnership Agreement"), the
holders of the Equity will be able to convert $100 in liquidation
value of the Equity for one share of Series D Preferred Stock, it
being understood that the aggregate amount in liquidation value of the
equity shall remain $25,000,000.
5. Subscriber's Representations.
(a) Subscriber represents and warrants that it is purchasing the Equity
solely for investment solely for its own account and not with a view
to or for the resale or distribution thereof except as permitted under
the Registration Agreement or as otherwise permitted under applicable
law, including the Securities Act of 1933, as amended (the "Securities
Act").
(b) Subscriber understands that it may sell or otherwise transfer the
Equity or the shares issuable on conversion of the Equity only if such
transaction is duly registered under the Securities Act, or if
Subscriber shall have received the favorable opinion of counsel to
Subscriber, which opinion shall be reasonably satisfactory to counsel
to the Company, to the effect that such sale or other transfer may be
made in the absence of registration under the Securities Act, and
registration or qualification in every applicable state. Subscriber
realizes that the Equity is not a liquid investment. Subscriber has
the knowledge and experience to evaluate the Company and the risks and
merits relating thereto.
(c) Subscriber represents and warrants that Subscriber is an "accredited
investor" as such term is defined in Rule 501 of the Regulation D
promulgated pursuant to the Securities Act, and shall be such on the
date any Equity is issued to Subscriber;
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Subscriber acknowledges that Subscriber is able to bear the economic
risk of losing Subscriber's entire investment in the Equity and
understands that an investment in the Company involves substantial
risks; Subscriber has the power and authority to enter into this
Agreement, and the execution and delivery of, and performance under
this Agreement, shall not conflict with any rule, regulation,
judgement or agreement applicable to Subscriber. Subscriber has had
the opportunity to discuss the Company's affairs with the Company's
officers.
(d) Subscriber represents and warrants that it was not formed with a
principal purpose of permitting the Company to satisfy the 100 partner
limitation of Treas. Reg. ss. 1.7704.1(h)(1)(ii).
6. Execution of Partnership Agreement
By executing this Private Placement Purchase Agreement, Subscriber agrees
to be bound by and subject to the terms of the Partnership Agreement as if
a signatory thereto.
7. Miscellaneous
This Agreement may not be changed or terminated except by written agreement
of both parties. It shall be binding on the parties and on their permitted
assigns. It sets forth all agreements of the parties, and may be signed in
counterparts.
This Agreement shall be governed by, and construed in accordance with, the
laws of New York without regard to conflicts of law principles thereof. The
federal and state courts sitting in New York, New York shall have exclusive
jurisdiction over all matters relating to this Agreement.
All notices, requests, service of process, consents, and other
communications under this Agreement shall be in writing and shall be deemed
to have been delivered (i) on the date personally delivered or (ii) one day
after properly sent by recognized overnight courier, addressed to the
respective parties at their address set forth in this Agreement or (iii) on
the day transmitted by facsimile so long as a confirmation copy is
simultaneously forwarded by recognized overnight courier, in each case
addressed to the respective parties at their address set forth in this
Agreement. Either party hereto may designate a different address by
providing written notice of such new address to the other party hereto as
provided above.
Dated: November 24, 1999
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THE TAUBMAN REALTY GROUP
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
TAUBMAN CENTERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President and
SUBSCRIBER Chief Executive Officer
GS-MSD Select Sponsors, L.P.
By: GS-MSD 1999 exchange Advisors, l.L.C.
By: /s/ Xxxxxxxxx Xxxxxx
-------------------------
Xxxxxxxxx Xxxxxx
Authorized Person
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