Exhibit 10(c)
RATIFICATION OF AGREEMENT
THIS RATIFICATION OF AGREEMENT ("Ratification") is made and
entered into as of August 1, 2001 by and between XXXX INVESTCO GP., a Tennessee
general partnership ("Xxxx"), UNION REALTY COMPANY, GP., a Tennessee general
partnership ("Union") and THACKERAY CORPORATION, a Delaware corporation
("Thackeray").
W I T N E S S E T H
WHEREAS, BEF, INC., a Tennessee corporation ("BEFI"), BT
PARTNERSHIP, a Tennessee general partnership ("BT"), and EST, LTD., a Florida
limited partnership ("EST"), are all affiliated with Xxxx and Union, and are all
entities in which Xxxx and Union possess ownership interests;
WHEREAS, XXXXXXXX-XXXXX INDUSTRIES, INC., a Delaware
corporation ("Xxxxxxxx") is a wholly-owned subsidiary of Thackeray;
WHEREAS, BEFI, BT, EST and Xxxxxxxx entered into that
certain Agreement of Limited Partnership ("Original Partnership Agreement")
dated May 20, 1996 for BT Orlando Limited Partnership (the "Partnership"), which
was formed to develop approximately 140 acres of commercially zoned real estate
in Orlando, Florida, as a retail/entertainment/shopping center complex;
WHEREAS, Xxxx Investco L.P. (the predecessor entity to
Xxxx) and Xxxxxxxxx (pursuant to agreement entered into as of May 20, 1996)
("1996 Agreement") guaranteed certain obligations of their respective affiliates
under the Original Partnership Agreement;
WHEREAS, Union Realty Company, Ltd. (the predecessor entity
to Union), in connection with the Fifth Amendment to the Original Partnership
Agreement, executed that certain document entitled "Ratification of Agreement"
dated August 11, 1999 ("1999 Ratification") pursuant to which each of Xxxx
Investco, L.P., Thackeray and Union Realty Company, Ltd. guaranteed the
obligations of their respective affiliates under the Original Partnership
Agreement as amended;
WHEREAS, the Original Partnership Agreement has, since its
original date, been amended five times and, as of even date herewith, is being
amended and restated in its entirety pursuant to that certain Amended and
Restated Agreement of Limited Partnership ("Amended and Restated Agreement") of
the Partnership dated as of the date hereof;
WHEREAS, Xxxx Investco L.P. and Union Realty Company, Ltd.
were converted from limited partnerships to general partnerships in late 1999;
WHEREAS, in connection with the execution of the Amended
and Restated Partnership Agreement the parties hereto desire to reaffirm their
obligations under the 1996 Agreement and the 1999 Ratification;
NOW, THEREFORE, in consideration of the mutual covenants
and understandings between the parties and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
intending to be legally bound, Xxxx, Union and Thackeray hereby agree as
follows:
1. Ratification. Xxxx, Union and Thackeray hereby ratify and
re-confirm their obligations (and those of their predecessor entities) under the
1996 Agreement and the 1999 Ratification, as though such 1996 Agreement and 1999
Ratification were re-executed by the parties hereto as of the date hereof.
In particular, Xxxx and Union (as to their affiliates, BEFI, BT and
EST) and Thackeray (as to its affiliate, Xxxxxxxx) hereby agree that if their
respective affiliates at any time default under any of their obligations set
forth in Sections 4.2, 4.3(a), 14.1 and 16.1(f) of the Amended and Restated
Partnership Agreement, that each party hereto will guaranty and perform the
obligations of its respective affiliate under the Amended and Restated
Partnership Agreement.
With respect to the guaranty of Xxxx, Union and Thackeray referenced
above, such guaranty of the obligations of their respective affiliates shall be
construed as though Xxxx, Union and Thackeray were direct partners of the
Partnership under the Amended and Restated Partnership Agreement, owning the
partnership interests of their respective affiliates. This guaranty shall be a
continuing guaranty, and the liability hereunder shall in no way be affected or
diminished by reason of any extension of time that may be granted by any party
to the Amended and Restated Partnership Agreement.
2. Third Party Creditors. In connection with the closing of the 2001
Financing (as defined in the Amended and Restated Partnership Agreement), it is
anticipated that the mezzanine lender will receive a pledge of all of the
partnership interests in the Partnership, and a pledge of all of the shares of
stock outstanding in each of the General Partners of the Partnership. The
provisions of Article IV of the Amended and Restated Partnership Agreement (and
the provisions of this Ratification) are intended solely for the benefit of the
parties hereto and the parties to the Amended and Restated Partnership
Agreement, and are not intended for the benefit of any other party (including,
but not limited to, the mezzanine lender under the 2001 Financing). In the event
the mezzanine lender forecloses on the General Partner interests or on the
shares of stock outstanding in the General Partners, or in the event that (for
any other reason) the General Partners of the Partnership are other than those
stated in the Amended and Restated Partnership Agreement or the shareholders of
each of the General Partners are other than those in existence as of the date
hereof, then in any such event the provisions of Article IV of the Amended and
Restated Partnership Agreement pertaining to the ability of the General Partners
to call for and require capital contributions from the Partners of the
Partnership are null and void and of no further force or effect.
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3. Counterparts. This Ratification may be executed in several
counterparts, and as so executed shall constitute one agreement, binding on all
parties hereto, notwithstanding that all the parties are not signatories to the
original or the same counterpart. This Ratification may be executed by facsimile
signature, provided that an executed original counterpart shall be provided to
all other parties as soon as reasonably possible after delivery of such
facsimile execution.
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IN WITNESS WHEREOF, the undersigned have executed this Ratification
of Agreement as of the date first above written.
THACKERAY CORPORATION, a Delaware corporation
By:
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XXXX INVESTCO L.P., a Tennessee limited partnership
By: URCO, INC., its general partner
By:
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UNION REALTY COMPANY, LTD.,
a Tennessee limited partnership
By: Xxxx Investco, L.P., its general partner
By: URCO, INC., general partner of Xxxx Investco, L.P.
By:
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