FIRST AMENDMENT
TO
PARTNERSHIP AGREEMENT
OF
LOYAL PLAZA ASSOCIATES, L.P.
This First Amendment ("Amendment") to the Partnership Agreement of
Loyal Plaza Associates, L.P. (the "Partnership") dated as of June 23, 2002 (the
"Partnership Agreement") is entered into by and among CIF-LOYAL PLAZA
ASSOCIATES, a Delaware limited partnership ("Developer Partner") and KIMCO
PREFERRED INVESTOR IV TRUST, a Pennsylvania business trust ("Preferred
Partner"). All capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Partnership Agreement.
WITNESSETH:
WHEREAS, Preferred Partner and Developer Partner desire to amend the
Partnership Agreement to reflect the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Preferred Partner and Developer Partner hereby agree that
the Partnership Agreement is hereby amended as follows:
1. Amending Section 1.1. In Section 1.1., the definition of "Operating
Budget" is hereby amended by (a) deleting the phrase "approved in writing by" in
the second line of such section and substituting in its place the phrase
"submitted in writing to", and (b) adding the following sentence at the end of
such definition:
If (a) the Preferred Partner's Initial Capital Contribution
Preferred Return Balance and Default Capital Contribution
Preferred Return Balance are not each reduced to Zero Dollars
($0.00) as of the end of any three consecutive calendar
quarters (in the year preceding the Operating Budget in
question), or (b) a Removal Event has occurred and is
continuing, or (c) a proposed operating budget projects an
increase of more than ten percent (10%) over operating
expenses budgeted in the immediately preceding calendar year,
then the General Partner shall be required to obtain the
written approval of the Preferred Partner to such Operating
Budget, which approval shall not be unreasonably withheld or
delayed.
2. Amending Section 4.1(b)(1). Section 4.1(b)(1) is hereby amended by
inserting the phrase, "(except as otherwise provided in this Agreement, as
amended)" after the word "encumbrance" in the second line, and by adding
following sentence at the end of said section, "Notwithstanding the foregoing,
if the Developer Partner is the General Partner, no sale, transfer or exchange
of the Project shall be permitted prior to and including June 30, 2007."
3. Amending Sections 4.1(b)(3) and 4.1(b)(17). Notwithstanding the
provisions of Sections 4.1(b)(1), 4.1(b)(3) and 4.1(b)(7), the General Partner
may at any time, without the consent of the Preferred Partner, cause the
Partnership to refinance the Mortgage Loan or any other Approved Loan with an
institutional lender on terms no less favorable than those in effect at the time
of the refinance, so long as (a) Preferred Partner receives notice of such
refinancing at least thirty (30) days prior to closing and also receives copies
of all loan document drafts prior to closing and (b) such refinancing does not
require payment of any prepayment premium, yield maintenance fee or similar fee
to the existing lender (which, when considered together with all other terms of
such refinancing, would result in overall terms less favorable than those in
effect at the time of such refinance).
4. Amending Section 4.1(b)(4). Section 4.1(b)(4) is hereby amended by
deleting "(i) 105" and substituting the number "120" in the third line of such
section, and by deleting the phrase, "or (ii) an aggregate sum of $50,000 in any
12-month period for any transaction or group of similar or related transactions
except for expenditures made and obligations incurred pursuant to an Operating
Budget;"
5. Amending Section 4.1(b)(7). Section 4.1(b)(7) is hereby amended by
replacing the period at the end of this section with a comma and adding the
phrase:
if and to the extent that any of the foregoing agreements or
actions to be entered into or taken by the Partnership shall
be outside the ordinary course of business of the Partnership
(unless approval of a particular matter is required by another
express term of this Agreement), although General Partner
shall provide Preferred Partner with copies of any of the
foregoing items before finalizing such items whether or not
Preferred Partner's approval is required; and provided further
that all insurance coverages shall comply with insurance
required by any Mortgage Loan and all liability policies shall
name Preferred Partner as an additional insured.
6. Amending Section 4.1(d). Notwithstanding anything to the contrary
set forth in Section 4.1(d), although the General Partner shall be required to
submit an annual Operating Budget to the Preferred Partner, the General Partner
shall only be required to obtain the Preferred Partner's consent to or approval
of such Operating Budget if required under the definition of "Operating Budget"
as amended by paragraph 1 of this Agreement.
Except for the foregoing amendments to the Partnership Agreement, the
Partnership Agreement is hereby ratified and shall remain in full force and
effect for all purposes. This Amendment shall be construed in accordance with
and governed by, the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of September 16, 2002
GENERAL PARTNER/DEVELOPER PARTNER
CIF-LOYAL PLAZA ASSOCIATES, L.P.
A Delaware limited partnership
By: CIF-LOYAL PLAZA ASSOCIATES, CORP.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇, President
PREFERRED PARTNER:
KIMCO PREFERRED INVESTOR IV TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
________________, Trustee
