Exhibit 4(q)
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THIRD ADDENDUM TO AGREEMENT OF PURCHASE AND SALE BETWEEN ROYAL PALM BEACH
COLONY LIMITED PARTNERSHIP
SUCCESSOR IN INTEREST TO ROYAL PALM BEACH UTILITIES COMPANY, AND
THE VILLAGE OF ROYAL PALM BEACH
THIS ADDENDUM made and entered into this 11th day of December 2002, by
and between the XXXXXXX XX XXXXX XXXX XXXXX, XXXXXXX, a municipal corporation
with offices located at 0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx, Xxxxx Xxxx Xxxxx,
Xxxxxxx 00000 organized and existing in accordance with the laws of the State of
Florida (hereafter the "Village") ROYAL PALM BEACH COLONY, LIMITED PARTNERSHIP,
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a Delaware limited partnership authorized to do business in the State of Florida
with offices at 0000 X. Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000 (hereafter
"Colony"), successor in interest to Royal Palm Beach Utilities Company, formerly
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a Florida corporation ("Utility"), Xxxxx Management Company, Inc., a Delaware
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corporation and the Managing General Partner of Colony ("Steinco") with offices
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c/o Xxxxx X. Xxxxxxx, Esq at 0 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
and Steinco LLC, a New jersey limited liability company (SLLC") with offices at
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the same address.
R E C I T A L S:
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(A) Utilities and the Village executed the Agreement of Purchase and Sale on
March 30, 1983 (the "Agreement"), pursuant to which, among other matters, the
Village purchased the Utility System described therein and agreed, in addition
to a cash payment at closing, to make certain additional annual payments to
Colony (the "Contingent Amount").
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(B) The Second Addendum (i) provided that annual installments on the Contingent
Amount (the "Contingent Payments") are required to be made on January 15th of
each year (ii) provided that upon the liquidation of Colony, undivided interests
in the Contingent Payments would be assigned to the Record Holders of
partnership interests in Colony; (iii) provided for a mechanism for the payment
by the Village of such Contingent Payments to such Record Holders through
Registrar and Transfer Company, acting as Paying Agent, and (iv) provided that
Steinco would act as the Liquidating Agent for Colony.
(C) The Board of Directors of Steinco has determined that it would be advisable
that the function of Liquidating Agent be carried out by a single purpose
subsidiary of Steinco and has accordingly formed SLLC to carry out such tasks.
Steinco is the sole member of SLLC.
(D) The purpose of this Third Addendum is to add SLLC as a party and to
recognize the substitution of SLLC as the Liquidating Agent for Colony, and to
confirm the consent of the Village that all of the rights and obligations or
Steinco as set forth in the Second Addendum shall be assignmed by Steinco to
SLLC and assumed by SLLC.
NOW, THEREFORE, in consideration of the premises and the considerations
stated in this Addendum, the parties agree as follows:
1. Admission of SLLC as Party; Assignment and Assumption
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(a) Steinco hereby assigns to SLLC, as of the Liquidation Date, all of
its rights under the Second Addendum, subject to all of its obligations
thereunder; and SLLC hereby accepts such assignment and hereby assumes and
agrees to perform all of Steinco's obligations under the Second Addendum.SLLC is
hereby made a party to the Agreement.
(b) Consent by Village The Village hereby consents to the Asignment and
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Assumption set forth in subsection (a) above. Without limitation of the
foregoing the Village agrees that any and all actions which could have been
taken by Steinco as Liquidating Agent under the Second Addendum may be taken by
SLLC as Liquidating Agent. Without limitation of the foregoing, from and after
the date hereof, SLLC shall have all of the rights heretofore granted to or held
by Steinco pursuant to the Second Addendum, and shall have all of the
obligations ascribed to and undertaken by Steinco under the Second Amendment. In
all cases throughout the Second Addendum in which Steinco shall be stated to
have any obligation or have any right, (including but not limited to the right
to enforce the Agreement on behalf of the Record Holders) such right shall
constitute the right of and may be exercised by SLLC.
2. Representations and Warranties of Colony Colony represents and
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warrants to the Village that: (a) Colony is authorized by the terms of the
Partnership Agreement to enter into and perform under this Third Addendum; (b)
Steinco is the managing General Partner of Colony and is duly authorized to
execute this Second Addendum to the Agreement on its behalf; (c) SLLC has been
designated as the Liquidating Agent for Colony; (d) necessary proceedings have
been taken in order to authorize the execution and performance by Colony and
Steinco of this Third Addendum; and (e) this Third Addendum, the Liquidation
Plan and the implementation thereof by Colony do not and will not be in
violation of the laws of the State of Delaware or Florida or of the securities
laws of the United States, Delaware or Florida.
3. Technical Amendment Relating to Assignment of Interests in Contingent
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Payments
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For purposes of ensuring that SLLC has standing to act on behalf of the
Record Holders in enforcing any rights of the Record Holders under the Agreement
as amended, Village hereby recognizes that legal title to the Contingent
Payments shall be assigned to SLLC on the Liquidation Date, subject to the
obligation of SLLC to exercise such title only as Liquidating Agent for the
benefit of Colony and the Record Holders. Nothing in this Section 3 shall be
deemed to diminish the beneficial ownership of the Record Holders in the
Contingent Payments to be assigned pursuant to Section 1(a) of the Second
Addendum, to increase the obligations of the Village in any manner whatsoever or
to change the manner in which Contingent Payments shall be effected pursuant to
the Second Addendum.
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4. Miscellaneous
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(a) Effective Date This Agreement is binding on Colony, Steinco, SLLC
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and the Village as of the date hereto. Notwithstanding the foregoing, and
subject to subsection 10(c) of the Second Addendum, the Effective Date of this
Third Addendum shall be the date specified in a written notice delivered by
Colony to the Village which shall state that Colony will be liquidated pursuant
to the Plan on such date, and that the provisions of the Second Addendum and
this Third Addendum shall be effective on such date. Such notice shall be
accompanied by certified copies of the Plan, the Paying Agent Agreement, a
certified resolution of Steinco as Managing General Partner authorizing the
Second Addendum and this Third Addendum and such other documents as counsel to
the Village shall reasonably request.
(b) Amendment. This Third Addendum may be modified, amended or waived
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only by a written instrument signed by all of the parties hereto, or, after the
Liquidation Date, by the Village and by SLLC as Liquidating Agent.
(c) Notices SLLC is hereby added as a notice party under Section 10(d)
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of the Second Addendum, with an address for notice at c/o Xxxxx X. Xxxxxxx, Esq
at 0 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
(d) No Other Amendment Except as modified herein, all the terms and
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conditions of the Agreement, as amended by the First Addendum and the Second
Addendum shall remain in full force and effect.
IN WITNESS WHEREOF the parties have executed this Third Addendum as of the date
first above written.
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Royal Palm Beach Colony, Limited Partnership Xxxxx Management Company, Inc.
As Managing General Partner
By: Xxxxx Management Company, Inc.
Managing General Partner By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxx
By: /s/ Xxxxxx Xxxxx Title: Vice President
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Xxxxxx Xxxxx
Title: President
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The Village of Royal Palm Beach Steinco LLC
As Liquidating Agent
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx By: Xxxxx Management Company, Inc.
Title: Mayor Sole Member
By:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Title: Vice President
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