SECOND AMENDMENT TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXX SUBSIDIARY I LIMITED PARTNERSHIP
THIS SECOND AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF XXXX SUBSIDIARY I LIMITED PARTNERSHIP (this "Second
Amendment"), dated July 21, 1994, is entered into by and among the undersigned
parties.
W I T N E S S E T H:
WHEREAS, Xxxx Subsidiary I Limited Partnership (the "Partnership") was
formed as a Maryland limited partnership pursuant to that certain Certificate of
Limited Partnership dated June 16, 1993 and filed on June 16, 1993 among the
partnership records of the Maryland State Department of Assessments and
Taxation, and that certain Agreement of Limited Partnership dated June 16, 1993
(the "Original Agreement");
WHEREAS, the Original Agreement was amended and restated in its entirety
by that certain First Amended and Restated Agreement of Limited Partnership of
the Partnership dated as of August 26, 1993, as amended by that certain First
Amendment date August 26, 1993 (as amended, the "Agreement");
WHEREAS, the undersigned parties desire to amend the Agreement to
reflect the transfer of the one percent (1%) general partnership interest in the
Partnership of Xxxx Centers, Inc. ("SCI") to Xxxx QRS, Inc. ("QRS"), a wholly-
owned subsidiary corporation of SCI.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
1. SCI hereby transfers its entire one percent (1%) general partnership
interest in the Partnership to QRS, a corporation which is a wholly-owned
subsidiary of SCI, pursuant to the provisions of Section 11.1.B of the
Agreement. QRS hereby accepts and agrees to be bound by all of the terms and
conditions of the Agreement.
2. SCI hereby withdraws as sole general partner of the Partnership, and
QRS is hereby admitted as a substituted general partner in the place and stead
of SCI pursuant to the provisions of Section 12.1 and Section 14.1.B (2) of the
Agreement.
3. SCI and QRS hereby agree to file an amended certificate with the
Maryland State Department of Assessments and Taxation (and any required
amendments to the foreign
1
qualifications of the Partnership in each of the jurisdictions in which the
Partnership is doing business) to reflect the withdrawal of SCI as the sole
general partner of the Partnership and the admission of QRS as a substituted
general partner.
4. In order to reflect the aforementioned transfer of SCI's general
partnership interest to QRS, Exhibit A to the Agreement is hereby deleted in its
entirety and replaced with the Exhibit A attached to this Second Amendment.
5. The definition of "Articles of Incorporation" contained in Article I
of the Agreement is hereby deleted in its entirety.
6. The definition of "Independent Directors of the General Partner"
contained in Article I of the Agreement is hereby deleted in its entirety and
replaced with the following:
"Independent Director(s) of the General Partner" means the independent
------------------------------------------------
director(s) of the General Partner, as defined in the Articles of
Incorporation of the General Partner, as in effect from time to time.
7. All references to the "General Partner" in the definition of
"Registration Statement" contained in Article I of the Agreement shall
hereinafter be references to "Xxxx Centers, Inc."
8. All references to the "General Partner" in Section 3.1 of the
Agreement shall hereinafter be references to "Xxxx Centers, Inc." The reference
to "its Articles of Incorporation" in Section 3.1 of the Agreement shall
hereinafter be a reference to "the articles of incorporation of Xxxx Centers,
Inc."
9. Section 3.2 of the Agreement is hereby deleted in its entirety, and
replaced with the following:
Section 3.2. Powers
------
Subject to all of the terms, covenants, conditions and limitations
contained in this Agreement and any other agreement entered into by the
Partnership, the Partnership shall have full power and authority to do
any and all acts and thins necessary, appropriate, proper, advisable,
desirable, incidental to or convenient for the furtherance and
accomplishment of the purposes and business described herein and for the
protection and benefit of the Partnership, including, without
limitation, full power and authority to enter into, perform and carry
out contracts of any kind, borrow money and issue evidences of
indebtedness, whether or not secured by mortgage, deed of trust, pledge
or other lien, and acquire and
2
develop real property; provided, however, that the Partnership shall not
-----------------
take, or refrain from taking, any action which, in the judgement of
General Partner, in its sole and absolute discretion, (i) could
adversely affect the ability of Xxxx Centers, Inc. to achieve or
maintain qualification as a REIT, (ii) could subject Xxxx Centers, Inc.
to any additional taxes under Section 857 or Section 4981 of the Code,
or (iii) could violate any law or regulation of any governmental body or
agency having jurisdiction of Xxxx Centers, Inc. or its securities,
unless such action (or inaction) shall have been specifically consented
to by Xxxx Centers, Inc. in writing.
10. The last sentence of Section 5.2 of the Agreement is hereby deleted
in its entirety.
11. All references to the "General Partner" in Section 7.1.A(3) of the
Agreement shall hereinafter be references to "Xxxx Centers, Inc."
12. Section 7.1.F of the Agreement is hereby deleted in its entirety and
replaced with the following:
F. The Limited Partners acknowledge that the taking of certain actions
hereunder by the General Partner may require the consent of the
Independent Director(s) of the General Partner.
13. Section 7.5 of the Agreement is hereby deleted in its entirety and
replaced with the following:
Section 7.5 (Intentionally Deleted)
14. Section 7.9.D of the Agreement is hereby deleted in its entirety and
replaced with the following:
D. Notwithstanding any other provision of this Agreement or the Act
(except for any limitations set forth in Section 3.1 of the Agreement),
any action of the General Partner of behalf of the Partnership or any
decision of the General Partner to refrain from acting on behalf of the
Partnership, undertaken in the good faith belief that such action or
omission is necessary or advisable in order to (i) protect the ability
of Xxxx Centers, Inc. to achieve or maintain qualification as a REIT or
(ii) avoid Xxxx Center, Inc.'s incurring any taxes under Section 857 or
Section 4981 of the Code, is expressly authorized under this Agreement
and is deemed approved by all of the Limited Partners, to the extent
such approval may be necessary.
3
15. Except as the context may otherwise require, any terms used in this
Second Amendment which are defined in the Agreement shall have the same meaning
for purposes of this Second Amendment as in the Agreement.
16. Except as herein amended, the Agreement is hereby ratified,
confirmed and reaffirmed for all purposes and in all respects.
17. This Second Amendment may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Second Amendment
immediately upon affixing its signature hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first written above.
WITHDRAWING GENERAL PARTNER:
---------------------------
XXXX CENTERS, INC.
a Maryland Corporation
By:
___________________________________
Name: Xxxxxx X. Xxxxxx
Title: President
NEW GENERAL PARTNER:
-------------------
XXXX QRS, INC.
a Maryland Corporation
By:
___________________________________
Name: Xxxxxx X. Xxxxxx
Title: President
4
EXHIBIT A
PARTNERS, CONSTRIBUTIONS AND PARTNERSHIP INTERESTS
Amount of
Name and Address Cash/Net Partnership
of Partner Contribution Asset Value Interest
---------------- ------------ ----------- -----------
General Partner:
---------------
Xxxx Centers, Inc. Cash $ 1,019,871 1%
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxx
00000
Limited Partner:
---------------
Xxxx Holdings Limited Cash $ 19,680,129 99%
Partnership
0000 Xxxxxxxxxxx Xxxxxx The following $103,230,313
Chevy Chase, Maryland properties:
00000
Xxxxxx Xxxx
Xxxxxxxxx Xxxxxxx
Xxxxxxxxx Mall
Southdale
Thruway
White Oak
Total ____________ ____________
$123,930,313 100%
____________ ____________
5
EXHIBIT A
PARTNERS, CONSTRIBUTIONS AND PARTNERSHIP INTERESTS
Amount of
Name and Address Cash/Net Partnership
of Partner Contribution Asset Value Interest
---------------- ------------ ----------- -----------
General Partner:
---------------
Xxxx QRS, Inc. Cash $ 1,019,871 1%
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxx
00000
Limited Partner:
---------------
Xxxx Holdings Limited Cash $ 19,680,129 99%
Partnership
0000 Xxxxxxxxxxx Xxxxxx The following $103,230,313
Chevy Chase, Maryland properties:
00000
Xxxxxx Xxxx
Xxxxxxxxx Xxxxxxx
Xxxxxxxxx Mall
Southdale
Thruway
White Oak
Total ____________ ____________
$123,930,313 100%
____________ ____________
6
THIRD AMENDMENT TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXX SUBSIDIARY I LIMITED PARTNERSHIP
THIS THIRD AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXX SUBSIDIARY I LIMITED PARTNERSHIP (this "Third Amendment"),
dated as of July 21, 1994, is entered into by and among the undersigned parties.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xxxx Subsidiary I Limited Partnership (the "Partnership") was
formed as a Maryland limited partnership pursuant to that certain Certificate of
Limited Partnership dated June 16,1993 and filed on June 16, 1993 among the
partnership records of the Maryland State Department of Assessments and
Taxation, and that certain Agreement of Limited Partnership dated June 16, 1993
(the "Original Agreement");
WHEREAS, the Original Agreement was amended and restated in its entirely by
that certain First Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of August 26, 1993, as amended by that certain First
Amendment dated August 26, 1993 and that certain Second Amendment dated July 21,
1994 (as amended, the "Agreement");
WHEREAS, the undersigned parties, constituting all of the Partners of the
Partnership, desire to amend the Agreement to reflect (1) an amended purpose and
separateness covenants for the Partnership, (2) the contribution of additional
assets to the Partnership by Xxxx Holdings Limited Partnership (the "Operating
Partnership"), (3) the contribution of a promissory note to the Partnership by
Xxxx QRS, Inc. ("QRS"), and (4) the admission of Xxxx Subsidiary II Limited
Partnership ("Sub II"), a Maryland limited partnership, as an additional Limited
Partner of the Partnership in exchange for the contribution of certain real
property to the Partnership, and (5) a special distribution to the Operating
Partnership.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
1. ARTICLE I of the Agreement is hereby amended by inserting the following
new definitions:
"Lender" is defined in Section 3.1.B hereof.
"Mortgage" is defined in Section 3.1.B hereof.
"Properties" is defined in Section 3.1.A hereof.
2. Section 3.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
Section 3.1 Purpose and Business
--------------------
The sole purpose and nature of the business to be conducted by the
Partnership is to:
A. acquire, own, hold, maintain, manage, operate, improve, develop,
finance, pledge, encumber, mortgage, sell, exchange, lease, dispose of
and otherwise deal with the following seventeen (17) real properties
(together with all personal property used in connection with the operation
of such real properties, the "Properties"):
1. Beacon Mall
2. Lexington Mall
3. Thruway
4. Hampshire-Xxxxxxx
5. Southdale
6. White Oak
7. Belvedere
8. French Market
9. Giant
10. Great Eastern
11. North Washington
12. Xxxxx
00. Xxxxxxxxx
00. Xxxxxxxxx Xxxxx
00. Xxxxxxxx Xxxx
00. Xxxx Xxxx
17. Park Road Center
(the properties noted at 1 through 3 above are more fully described in
those certain Conveyance Agreements between Dearborn Corporation and the
Operating Partnership dated on or about the date of the Agreement; the
properties noted at 4 through 6 above are more fully described in those
certain Conveyance Agreements between Dearborn Corporation and the
Partnership dated on or about the date of the Agreement; the properties
noted at 7 through 16 above are more fully described in Attachment 2 to the
Third Amendment; and the property noted at 17 above is more fully described
in Attachment 3 to the Third Amendment), together with such other
activities as may be necessary or advisable in connection with the
ownership of the Properties; provided, however, that the Partnership shall
--------- -------
not take
-2-
or fail to take any action if such action or failure would cause Xxxx
Centers, Inc. to fail to qualify as a REIT, unless Xxxx Centers, Inc.
voluntarily terminates its REIT status pursuant to its articles of
incorporation;
B. borrow funds from Value Line Mortgage Corporation or an affiliate
or designee thereof (the "Lender") in the approximate principal amount of
One Hundred Twenty-Eight Million Dollars ($128,000,000), pursuant to a Deed
to Secure Debt, Deed of Trust, Mortgage, Security Agreement and Assignment
of Rents; Modification and Consolidation Agreement and related documents
(the "Mortgage") to be entered into between the Partnership and the Lender,
for the purpose of operating the Properties, and incurring other
indebtedness to the extent not prohibited by the Mortgage; and
C. give security for the loan made pursuant to the Mortgage or for
any other indebtedness to the extent not prohibited by the Mortgage.
The Partnership shall not engage in any business unrelated to the
Properties and shall not own any assets other than those related to the
Properties or otherwise in furtherance of the purposes of the Partnership
as set forth above in this Section 3.1. The Partnership shall not incur
any indebtedness other than the indebtedness related to the Properties and
otherwise provided herein.
3. Section 7.1.A(9) of the Agreement is hereby deleted in its entirety and
replaced with the following:
(9) [Intentionally Deleted]
4. Section 7.1.A (10) of the Agreement is hereby deleted in its entirely
and replaced with the following:
(10) invest assets of the Partnership on a temporary basis in
commercial paper, government securities, checking or savings accounts,
money market funds, or any other highly liquid investments deemed
appropriate by the General Partner;
5. Section 7.1.A(15) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(15) [Intentionally Deleted]
-3-
6. Section 7.6.A of the Agreement is hereby deleted in its entirety and
replaced with the following:
A. [Intentionally Deleted]
7. The following new Section 7.6.F is hereby added at the end of Section
7.6 of the Agreement:
F. The Partnership may hire Xxxx Subsidiary II Limited Partnership to
provide management services for Park Road Center, a property owned by the
Partnership and located in Washington, D.C. In such event, the Partnership
shall pay to Xxxx subsidiary II Limited Partnership in exchange for the
performance of such property management services a monthly fee in an amount
to be determined by the mutual agreement of the Partnership and Xxxx
Subsidiary II Limited Partnership. Any such fee amount shall be fair and
reasonable and no less favorable to the Partnership than could be obtained
from an unaffiliated third party.
8. The following new Article XVII is added to the Agreement:
ARTICLE XVIII - SEPARATENESS COVENANTS
A. The Partnership shall (i) observe all partnership
formalities, including the maintenance of current partnership books and
records, (ii) maintain its own separate and distinct books of account and
partnership records, (iii) cause its financial statements to be prepared in
a manner that indicates the separate existence of the Partnership and its
assets and liabilities, (iv) pay all its liabilities out of its own funds,
(v) identify itself as a separate and distinct entity in its financial
statements and legal documents, (vi) execute its legal documents under its
own name, (vii) independently make decision with respect to its business
and daily operations, (viii) maintain an arm's length relationship with its
Affiliates, (ix) allocate fairly and reasonably any overhead for shared
office space, and (x) use separate stationery, invoices and checks.
B. The Partnership shall not (i) commingle its assets with those
of, or pledge its assets for the benefit of, any other person, (ii) assume
or guarantee, or hold out its credit as being available to satisfy, the
liabilities of any other person, (iii) purchase obligations or securities
of, or make loans or advances
-4-
to, an Affiliate or (iv) incur any indebtedness except in accordance with
the Mortgage.
9. QRS hereby agrees to assign to the Partnership a promissory note from
Xxxx Centers, Inc. in the amount of Two Hundred Sixty-One Thousand Four Hundred
Eighty-Five Dollars ($261,485), a copy of which is attached as Attachment 1 to
this Third Amendment.
10. The Operating Partnership agrees to contribute to the Partnership
certain assets more fully described in Attachment 2 to this Third Amendment, as
encumbered by certain indebtedness described in said Attachment 2.
11. Each of the undersigned parties hereby consents to a distribution by
the Partnership of Twenty-Five Million Dollars ($25,000,000) to the Operating
Partnership.
12. In exchange for its admission as a Two and 47/100 percent (2.47%)
limited partner in the Partnership, Sub II hereby agrees to contribute to the
Partnership certain real property more fully described in Attachment 3 to this
Third Amendment. Sub II hereby accepts and agrees to be bound by all of the
terms and conditions of the Agreement.
13. Pursuant to the terms of Section 4.2A of the Agreement, each of the
undersigned parties hereby consents to the additional capital contributions to
the Partnership of QRS, the Operating Partnership and Sub
14. In order to reflect the aforementioned capital contributions to the
Partnership by QRS, the Operating Partnership and Sub II, Exhibit A to the
Agreement is hereby deleted in its entirety and replaced with the Exhibit A
attached to this Third Amendment.
15. Except as the context may otherwise require, any terms used in this
Third Amendment which are defined in the Agreement shall have the same meaning
for purposes of this Third Amendment as in the Agreement.
16. Except as herein amended, the Agreement is hereby ratified, confirm
and reaffirmed for all purposes and in all respects.
17. This Third Amendment may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each
-5-
party shall become bound by this Third Amendment immediately upon affixing its
signature hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date first written above.
GENERAL PARTNER:
---------------
XXXX QRS, INC.,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: President
----------------------------------
EXISTING LIMITED PARTNER:
-------------------------
XXXX HOLDINGS LIMITED PARTNERSHIP
a Maryland limited partnership
By: Xxxx Centers, Inc., a Maryland
corporation, its sole general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: President
----------------------------------
NEW LIMITED PARTNER:
--------------------
XXXX SUBSIDIARY II PARTNERSHIP,
a Maryland limited partnership
By: Xxxx Centers, Inc., a Maryland
corporation, its sole general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: President
----------------------------------
-6-
Name and Address Amount of
of Partner Cash/Net Partnership
Limited Partner: Contribution Asset Value Interest
----------------------- ------------------------- ------------- -----------
Xxxx Holdings Limited Cash
Partnership $ 19,680,129 96.53%
0000 Xxxxxxxxxxx Xxx. The following properties:
Chevy Xxxxx, Xxxxxxxx
00000 Beacon Mall $103,230,313
Hampshire Xxxxxxx
Lexington Mall
Southdale
Thruway
White Oak
Belvedere $ 41,162,692
French Market
Giant
Great Eastern
North Washington
Olney
Ravenwood
Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx
Xxxx Xxxx
$83,000,000 of the $154,780,000 of
interest rate protection given by The First
National Bank of Chicago pursuant to that
certain Rate Cap. No. 93230.1.1000.S.C..3L
dated August 18, 1993
ATTACHMENT 1
PROMISSORY NOTE
---------------
August 1, 0000
Xxxxx Xxxxx, Xxxxxxxx
FOR VALUE RECEIVED, XXXX CENTERS, INC., a Maryland corporation (hereinafter
called "Borrower"), hereby promises to pay to order of XXXX QRS, INC, a Maryland
corporation, at its place of business at 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxx, 00000, or at such other place as the holder hereof (the "Noteholder")
may in writing designate, in lawful money of the United States of America, the
principal sum of One Hundred Ninety-Three Thousand Five Hundred Sixty-Three
Dollars ($193,563), with interest from the date hereof on the principal balance
outstanding at a rate per annum equal to the standard rate of interest that is
published in the "Money Rates" section of The Wall Street Journal as the "Prime
-----------------------
Rate," as in effect from time to time.
Interest only shall be payable monthly in arrears on the first day of each
month beginning September 1, 1994. If not sooner paid, the entire principal
balance and all interest accrued thereon shall be payable on August 1, 2009.
All payments shall be made without offset or deduction of any kind or nature.
The principal sum of this Note may be prepaid in full or in part at any time
without penalty.
Notwithstanding anything to the contrary contained in this Note, Borrower
shall not be required to make any payment under this Note to the extent that the
making of such payment would (1) adversely affect the ability of Borrower to
maintain qualifications as a real estate investment trust ("REIT") as defined
under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended
(the "Code"), unless Borrower voluntarily terminates its REIT status, or (2)
subject Borrower to any additional taxes under Section 857 or 4981 of the Code.
The due date of any such payment shall be delayed until such time as the adverse
tax consequences noted in the preceding sentence will not occur with respect to
Borrower. Interest at the rate specified above in this Note shall accrue on any
such delayed payment.
This Note shall be governed by the laws of the State of Maryland.
WITNESS the following signature.
XXXX CENTERS, INC., a Maryland corporation
By:
----------------------------------------
Title:
-------------------------------------
PAY TO THE ORDER OF XXXX SUBSIDIARY I LIMITED PARTNERSHIP, A MARYLAND LIMITED
PARTNERSHIP, WITHOUT RECOURSE.
XXXX QRS, INC. a Maryland corporation
By:
----------------------------------
Title:
-------------------------------
ATTACHMENT 2
Xxxx Holdings Limited Partnership will contribute the following assets to the
Partnership, and the Partnership will assume the following indebtedness from
Xxxx Holdings Limited Partnership:
Gross Asset Value
of Property/Amount
Description of Property/Indebtedness of Indebtedness
------------------------------------ ------------------
1. Certain land and the improvements located thereon know as $3,800,000
Belvedere, as more fully described in the attached legal
description, together with all personal property located at
and used in connection with the operation of such real property.
2. Certain land and the improvements located thereon known as $4,400,000
French Market, as more fully described in the attached legal
description, together with all personal property located at
and used in connection with the operation of such real property.
3. Certain land and the improvements located thereon known as $4,000,000
Giant, as more fully described in the attached legal description,
together with all personal property located at and used in
connection with the operation of such real property.
4. Certain land and the improvements located thereon known as $9,100,000
Great Eastern, as more fully described in the attached legal
description, together with all personal property located at
and used in connection with the operation of such real property.
5. Certain land and the improvements located thereon known as $3,160,000
North Washington, as more fully described in the attached legal
description, together with all personal property located at and
used in connection with the operation of such real property.
6. Certain land and the improvements located thereon known as $8,500,000
Olney, as more fully described in the attached legal description,
together with all personal property located at and used in
connection with the operation of such real property.
2-1
7. Certain land and the improvements located thereon known as $8,500,000
Ravenwood, as more fully described in the attached legal
description, together with all personal property located at
and used in connection with the operation of such real property.
8. Certain land and the improvements located thereon known as $10,600,000
Ravenwood, as more fully described in the attached legal
description, together with all personal property located at
and used in connection with the operation of such real property.
9. Certain land and the improvements located thereon known as $6,800,000
Sunshine City, as more fully described in the attached legal
description, together with all personal property located at
and used in connection with the operation of such real property.
10. Certain land and the improvements located thereon known as $970,000
West Park, as more fully described in the attached legal
description, together with all personal property located at
and used in connection with the operation of such real property.
11. $83,000,000 of the $154,780,000 of interest rate protection $5,337,000
given to Xxxx Holdings Limited Partnership by The First National
Bank of Chicago pursuant to that certain Rate Cap.
No. 93230.1.1000.S.C.3L dated August 18, 1993.
12. A portion of the indebtedness owed to Windy City ($24,004,308)
Holdings, Inc. evidenced by that certain Agreement of
Modification, Restatement and Consolidation of Promissory
Notes dated as of August 26, 1993, executed by Xxxx Holdings
Limited Partnership in the face amount of $43,034,557.19, which
encumbers Belvedere, Giant, Great Eastern, Olney Ravenwood and
Southside Plaza.
--------------
Total value of properties contributed, net of assumed
indebtedness $41,162,692
2-2
ATTACHMENT 3
Xxxx Subsidiary II Limited Partnership will contribute the following real
property to the Partnership:
Gross Asset Value
Description of Property of Property
----------------------- ------------------
1. Certain land and the improvements located thereon known as $3,000,000
Park Road Center, as more fully described in the attached legal
description, together with all personal property located at and used in
connection with the operation of such real property.
3-1
EXHIBIT A
PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTERESTS
Name and Address Amount of
of Partner Cash/Net Partnership
General Partner: Contribution Asset Value Interest
---------------- ------------ ----------- --------
Xxxx QRS, Inc. Cash $1,019,871
0000 Xxxxxxxxxxx Xxx. 1%
Chevy Chase, Maryland Promissory Note $ 193,563
20815
Name and Address Amount of
of Partner Cash/Net Partnership
General Partner: Contribution Asset Value Interest
---------------- ------------ ------------- ----------
Xxxx Subsidiary II Park Road Center $ 3,000,000 2.47%
Limited Partnership
0000 Xxxxxxxxxxx Xxx.
Xxxxx Xxxxx, Xxxxxxxx ____________ -----
20815 Total $168,286,568 100%
============ =====
EXHIBIT 10(b)
FOURTH AMENDMENT
TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXX SUBSIDIARY I LIMITED PARTNERSHIP
THIS FOURTH AMENDMENT TO THE FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF XXXX SUBSIDIARY I LIMITED PARTNERSHIP (this "Fourth
Amendment"), dated as of September 30, 1997, is entered into by and among the
undersigned parties.
Preliminary Statement
Xxxx Subsidiary I Limited Partnership (the "Partnership") was formed as
a Maryland limited partnership pursuant to that certain Certificate of Limited
Partnership dated June 16, 1993 and filed on June 16, 1993 among the partnership
records of the Maryland State Department of Assessments and Taxation, and that
certain Agreement of Limited Partnership dated June 16, 1993 (the "Original
Agreement").
The Original Agreement was amended and restated in its entirety by that
certain First Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of August 26, 1993, as amended by that certain First
Amendment dated August 26, 1993, that certain Second Amendment dated July 21,
1994, and that certain Third Amendment dated as of July 21, 1994 (as amended,
the "Agreement").
The undersigned parties, constituting all of the Partners of the
Partnership, desire to amend the Agreement to resect: (i) the withdrawal of Xxxx
Subsidiary II Limited Partnership ("Sub II") as a Limited Partner and the
distribution of certain assets to Sub [I in redemption of its Partnership
Interest; (ii) an amended purpose and separateness covenants for the
Partnership; (iii) the contribution of additional assets to the Partnership by
the Operating Partnership; and (iv) the distribution of certain assets to the
Operating Partnership and the General Partner by the Partnership, as further
provided herein.
Accordingly, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
21
1. Amendment of Article I. Article I of the Agreement is hereby
----------------------
amended by (i) deleting the definition of "Mortgage" contained therein, and
(ii) inserting the following new definitions:
"Loan" is defined in Section 3.1.B hereof
"Loan Agreement" is defined in Section 3.1.B hereof.
2. Amendment of Section 3.1. Section 3.1 of the Agreement is hereby
------------------------
deleted in its entirety and replaced with the following:
Section 3.1. Purpose and Business
--------------------
The sole purpose and nature of the business to be conducted by
the Partnership is to:
A. acquire, own, hold, maintain, manage, operate,
improve, develop, finance, pledge, encumber, mortgage, sell, exchange,
lease, dispose of and otherwise deal with the following nine (9) real
properties (together with all personal property used in connection with
the operation of such real properties, the "Properties"):
1. Thruway
2. Hampshire Xxxxxxx
3. White Oak
4. Belvedere
5. Giant
6. Great Eastern
7. Ravenwood
8. Southside Plaza
9. Seven Corners
(the property noted at 1 above is more fully described in those certain
Conveyance Agreements between Dearborn Corporation and the Operating
Partnership dated on or about the date of the Agreement; the properties
noted at 2 and 3 above are more fully described in-those certain
Conveyance Agreements between Dearborn Corporation and the Partnership
dated on or about the date of the Agreement; the properties noted at 4
through 8 above are more fully described in Attachment 2 to the Third
Amendment; the property noted at 9 above is more fully described in
Attachment 1 to this Fourth Amendment), together with such other
activities as may be necessary or advisable in connection with the
ownership of the Properties; provided, however, that the Partnership
shall not take or fail to take any action if such action or failure
would cause Xxxx Centers, Inc. to fail to qualify as a REIT, unless Xxxx
Centers, Inc. voluntarily terminates its REIT status pursuant to its
articles of incorporation;
22
B. borrow funds from Nomura Asset Capital Corporation or
an affiliate or designee thereof (the "Lender") in the approximate
principal amount of One Hundred Forty-Seven Million Dollars
($147,000,000) (the "Loan"), pursuant to that certain Loan Agreement
dated on or about the date hereof (the "Loan Agreement') to be entered
into between the Partnership and the Lender, for the purpose of
operating the Properties, and incurring other indebtedness to the extent
not prohibited by the Loan Agreement; and
C. give security for the Loan or for any other
indebtedness to the extent not prohibited by the Loan Agreement.
From and after the date on which the obligations of the Partnership
under the Loan are created and become outstanding, and continuing until
such time as the Loan has been paid in full and is no longer
outstanding, the Partnership shall not engage in any business unrelated
to the Properties and shall not own any assets other than those related
to the Properties or otherwise in furtherance of the purposes of the
Partnership as set forth above in this Section 3.1. The Partnership
shall not incur any indebtedness other than the indebtedness related to
the Properties and otherwise provided herein.
3. Amendment of Section 7.6.F. Section 7.6.F of the Agreement is hereby
--------------------------
deleted in its entirety and replaced with the following:
F. [Intentionally Deleted].
4. Amendment of Article XVIII. Article XVIII of the Agreement is hereby
--------------------------
deleted in its entirety and replaced by the following:
ARTICLE XVIII - SEPARATENESS COVENANTS
Notwithstanding any other provisions of this Agreement, from and
after the date on which the obligations of the Partnership under the
Loan are created and become outstanding, and continuing until such time
as the Loan has been paid in full and is no longer outstanding, the
General Partner and the Partnership shall take all actions necessary to
cause the Partnership and General Partner to comply with, and will
refrain from taking any actions in violation of, the defined term
"Special Purpose Bankruptcy Remote Entity," as such term is defined in
section 5.15 of the Loan Agreement. Any substitute General Partner
permitted under this agreement shall be required to comply with this
Article XVIII.
5. Withdrawal of Sub II. Sub II hereby withdraws as a Limited Partner
--------------------
and Sub II's Partnership Interest is hereby redeemed in exchange for a cash
distribution in the amount of $981,875 (to be funded by the Operating
Partnership on behalf of the Partnership, as set forth in paragraph 6(iii)
hereof) and an in-kind distribution of that certain property known as Xxxx Xxxx
00
Center, as more fully described in the Third Amendment. Each of the undersigned
parties hereby acknowledges and agrees that the value of Park Road Center is
$3,516,000.
6. Contribution of Assets by the Operating Partnership. The Operating
---------------------------------------------------
Partnership hereby agrees to contribute to the Partnership the following assets:
(i) cash in the amount of $ 15,000,000; (ii) its agreement to convert the
account payable by the Partnership to the Operating Partnership in the amount of
$624,988 to capital; (iii) its agreement to fund on behalf of the Partnership
the $981,875 cash distribution to be made to Sub II pursuant to paragraph 5
hereof; (iv) its agreement to fund on behalf of the Partnership the $424,727
cash distribution to be made to the General Partner pursuant to paragraph 8(ii)
hereof; and (v) that certain property known as Seven Corners, as more fully
described in Attachment 1 to this Fourth Amendment, as encumbered by certain
indebtedness described in said Attachment 1 (which indebtedness shall be
immediately paid in full by the Partnership upon such contribution of the Seven
Corners property to the Partnership). Each of the undersigned parties hereby
acknowledges and agrees that the value of Seven Corners is $32,497,000 (gross
fair market value of $63,284,000, reduced by assumed indebtedness of
$30,787,000).
7. Distribution of Assets to the Operating Partnership. Each of the
---------------------------------------------------
undersigned parties hereby consents to a distribution by the Partnership to the
Operating Partnership of the following real properties, as each is more fully
described in the Third Amendment: Beacon Mall; Lexington Mall; Southdale; French
Market; North Washington; Olney; Sunshine City; and West Park. Each of the
undersigned parties hereby acknowledges and agrees that the aggregate value of
the foregoing real properties is $111,369,000.
8. Distribution of Assets to the General Partner. Each of the
---------------------------------------------
undersigned parties hereby consents to a distribution by the Partnership to the
General Partner of the following assets: (i) a promissory note of Xxxx Centers,
Inc. (a copy of which was attached as Attachment I to the Third Amendment)
having an outstanding balance of principal and accrued interest of $245,336; and
(ii) cash in the amount of $424,747 (to be funded by the Operating Partnership
on behalf of the Partnership, as set forth in paragraph 6(iv) hereof)
9. Amendment of Exhibit A. In order to reflect the foregoing
----------------------
distributions, Exhibit A to the Agreement is hereby deleted in its entirety and
replaced with the Exhibit A attached to this Fourth Amendment.
10. Pro Rata Distributions of Assets to the Partners. Each of the
------------------------------------------------
undersigned parties hereby consents to the following distributions by the
Partnership to the Partners, to be made on a pro rata basis, in proportion to
their respective Partnership Interests of the Partners as set forth on Exhibit A
attached to this Fourth Amendment (i.e., ninety-nine percent (99%) to the
Operating Partnership and one percent (1%) to the General Partner): (i) a
receivable from the Operating Partnership in the amount of $57,600,000 (which
will be distributed $57,024,000 to the Operating Partnership and $576,000 to the
General Partner); and (ii) a receivable from Xxxx Centers, Inc. in the amount of
$1,019,871 (which will be distributed $1,009,672 to the Operating Partnership
and $ 10,199 to the General Partner).
24
11. Defined Terms. Except as the context may otherwise require, any
-------------
terms used in this Fourth Amendment which are defined in the Agreement shall
have the same meaning for purposes of this Fourth Amendment as in the Agreement.
12. Headings. All headings in this Fourth Amendment are for convenience
--------
of reference only and are not intended to qualify the meaning of any of the
provisions hereof
13. Ratification of Agreement. Except as herein amended, the Agreement
-------------------------
is hereby ratified, confirmed and reaffirmed for all purposes and in all
respects.
14. Counterparts. This Fourth Amendment may be executed in counterparts,
------------
all of which together shall constitute one agreement binding on all the parties
hereto, notwithstanding that all such parties are not signatories to the
original or the same counterpart. Each party shall become bound by this Fourth
Amendment immediately upon affixing its signature hereto.
/signatures are on the following page/
25
IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment to the First Amended and Restated Agreement of Limited Partnership of
Xxxx Subsidiary I Limited Partnership as of the date first above written.
GENERAL PARTNER:
XXXX QRS, INC., a Maryland corporation
Name: Xxxxx X Xxxxxxxxx
Title: Vice President
LIMITED PARTNER:
XXXX HOLDINGS LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Xxxx Centers, Inc., a Maryland
corporation, its sole general partner
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
WITHDRAWING LIMITED PARTNER:
XXXX SUBSIDIARY II LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Xxxx Centers, Inc., a Maryland
corporation, its sole general partner
Name: Xxxxx X Xxxxxxxxx
Title: Vice President
26
EXHIBIT A
PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTERESTS
General Partner:
Amount of
Name and Address Cash/Net Partnership
of Partner Contribution Asset Value Interest
--------------------------------------------------------------------------------------------------------------
Xxxx QRS, Inc. Cash $ 1,019,871 1%
0000 Xxxxxxxxxxx Xxx.
Xxxxx Xxxxx, Xxxxxxxx 00000 Promissory Note $ 193,563
Limited Partner:
Xxxx Holdings Limited Partnership Cash $ 19,680,129 99%
0000 Xxxxxxxxxxx Xxx.
Chevy Xxxxx, Xxxxxxxx 00000 The following properties -
Beacon Mall $103,230,313
Hampshire Xxxxxxx
Lexington Mall
Southdale
Thruway
White Oak
Belvedere $ 41,162,692
French Market
Giant
Great Eastern
North Washington
Olney
Ravenwood
Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx
Xxxx Xxxx
$83,000,000 of the $154,780,000 $ 5,337,000
of interest rate protection
given by The First National
Bank of Chicago pursuant to
that certain Rate Cap
No. 93230.1.1000.S.C.3L
dated August 18, 1993
A-1
Amount of
Name and Address Cash/Net Partnership
of Partner Contribution Asset Value Interest
--------------------------------------------------------------------------------------------------------------
Cash $ 15,000,000
Agreement to fund cash distributions $ 981,875
to Xxxx Subsidiary II Limited
Partnership
Agreement to fund cash distribution $ 424,747
to Xxxx QRS, Inc.
Conversion of account payable by the $ 624,988
Partnership to Xxxx Holdings
Limited Partnership into a
capital contribution
Seven Corners $ 32,497,000
A-2
ATTACHMENT 1
Xxxx Holdings Limited Partnership is contributing the following real property to
the Partnership, and in connection therewith the Partnership will assume the
following indebtedness from Xxxx Holdings Limited Partnership:
Description of Property/Indebtedness Gross Asset Value of Property or
Amount of Indebtedness
Certain land and the improvements $ 63,284,000
located thereon known as Seven Corners,
as more fully described in the attached
legal description, together with all
personal properly located at and used
in connection with the operation of such
real property.
That certain indebtedness of Xxxx Holdings (30,787,000)
Limited Partnership in the original
principal amount of $100,065,000 owed to
The First National Bank of Chicago and
certain other lenders (collectively, the
"First Chicago Lenders"), evidenced by
those certain documents and instruments
entered into between Xxxx Holdings
Limited Partnership and the First Chicago
Lenders on or about November 2, 1995,
as such documents may have been amended
from time to time.
Total value of property contributed, net
of assumed indebtedness $ 32,497,000
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