Exhibit 10.2
SEVENTH AMENDMENT
TO
SECOND AMENDED AND RESTATED CERTIFICATE
AND AGREEMENT OF LIMITED PARTNERSHIP
OF
INTERSTATE GENERAL PROPERTIES LIMITED PARTNERSHIP S.E.
THIS SEVENTH AMENDMENT dated as of October 1, 1998 ("Effective
Date") to that certain Second Amended and Restated Certificate and
Agreement of Limited Partnership of Interstate General Properties Limited
Partnership S.E., a Maryland limited partnership (the "Partnership"), dated
December 31, 1986, as amended, is made by and among IGP Group Corp. ("IGP
Group"), a Puerto Rico corporation and a General and Limited Partner of the
Partnership, American Land Development US, Inc.("American Land"), a
Delaware corporation and a Limited Partner of the Partnership, and American
Housing Properties, L.P. ("American Housing"), a Delaware limited
partnership and a Limited Partner of the Partnership (collectively the
"Partners").
W I T N E S S E T H:
WHEREAS, the Certificate and Agreement of Limited Partnership of
Interstate Properties was filed on June 29, 1981, in the office of the
Clerk of the Circuit Court of Xxxxxxx County, Maryland; and
WHEREAS, the foregoing Certificate and Agreement has been
amended from time to time, most recently by that certain Second Amended and
Restated Certificate and Agreement of Interstate General Properties Limited
Partnership S.E., dated as of December 31, 1986, as amended by that certain
First Amendment to Second Amended and Restated Certificate and Agreement of
Interstate General Properties Limited Partnership S.E., effective January
1, 1987, that certain Second Amendment to Second Amended and Restated
Certificate and Agreement of Interstate General Properties Limited
Partnership S.E., effective January 1, 1987, that certain Third Amendment
to Second Amended and Restated Certificate and Agreement of Interstate
General Properties Limited Partnership S.E., effective February 11, 1988,
that certain Fourth Amendment to Second Amended and Restated Certificate
and Agreement of Interstate General Properties Limited Partnership S.E.,
effective February 16, 1990, and that certain Fifth Amendment to Second
Amended and Restated Certificate and Agreement of Interstate General
Properties Limited Partnership S.E., effective December 18, 1991, and that
certain Sixth Amendment to Second Amended and Restated Certificate and
Agreement of Interstate General Properties Limited Partnership S.E.,
effective April 1, 1998 (together the "Partnership Agreement"); and
WHEREAS, Xxxxx X. Xxxxxx has withdrawn from the Partnership and
will cease to be a General Partner of the Partnership as of the Effective
Date;
WHEREAS, IGC desires to transfer and contribute to American Land
a portion of its interest in the Partnership consisting of all of IGC's
indirect interest in the LDA Nonrental Assets (as that term is hereinafter
defined);
WHEREAS, IGC desires to transfer and contribute to American
Housing a portion of its interest in the Partnership consisting of all of
IGC's indirect interest in the Identified U.S. Housing Partnerships (as
that term is hereinafter defined); and
WHEREAS, IGC desires to transfer and contribute to IGP Group the
remaining portion of its interest in the Partnership consisting of all of
IGC's interest in the Partnership other than its indirect interest in the
LDA Nonrental Assets (as that term is hereinafter defined) and other than
its indirect interest in the Identified U.S. Housing Partnerships (as that
term is hereinafter defined) and withdraw from the Partnership;
WHEREAS, the Partners desire to amend the Partnership Agreement
to reflect the foregoing, to admit IGP Group as a General Partner, to admit
American Land as a Limited Partner, to admit American Housing as a Limited
Partner, to create a Class A Interest, a Class B Interest and a Class C
Interest in the Partnership (as those terms are hereinafter defined), and
for other purposes, and agree to enter into this Seventh Amendment to the
Partnership Agreement;
NOW, THEREFORE, in consideration of the foregoing, of the
undertakings of the parties hereinafter set forth and good and valuable
other consideration passing between the parties, receipt whereof is hereby
acknowledged, effective as of the Effective Date:
1. Article 1, relating to definitions, shall be amended as
follows:
(a) The following new terms shall have the following
respective meanings:
Class A Interest: All interests in the Partnership other
than the Class B Interest and the Class C Interest.
Class A Partner: IGP Group.
Class B Interest: An interest in the Partnership consisting
solely of a 100 percent interest in the LDA Nonrental
Distributions and the LDA Nonrental Items.
Class B Partner: American Land.
Class C Interest: An interest in the Partnership consisting
solely of a 100 percent interest in the Identified U.S. Housing
Partnership Distributions and the Identified U.S. Housing
Partnership Items.
Class C Partner: American Housing.
Identified U.S. Housing Partnerships: Essex Apartment
Associates L.P., a Virginia limited partnership, and Huntington
Associates Limited Partnership, a Maryland limited partnership.
Identified U.S. Housing Partnership Distributions: All cash
or other property distributed by the Identified U.S. Housing
Partnerships to the Partnership or received by the Partnership in
exchange for its interest in the Identified U.S. Housing
Partnerships.
Identified U.S. Housing Partnership Items: All items of
income, gain, loss, deduction, or credit allocated by the
Identified U.S. Housing Partnerships to the Partnership or
recognized by the Partnership on the sale or other disposition of
its interest in the Identified U.S. Housing Partnership.
LDA: Land Development Associates, S.E., a Puerto Rico
partnership.
LDA Nonrental Assets: The parcels of land owned by LDA that
are identified in Exhibit C and any other assets owned by LDA
that would be property of a type described in Treas. Reg.
Section 1.367(a)-5T.
LDA Nonrental Distributions: All cash or other property
distributed by LDA to the Partnership with respect to the LDA
Nonrental Assets or received by the Partnership in exchange for
that portion of its LDA interest that is attributable to the LDA
Nonrental Assets. The determination of whether, or to what
extent, cash or other property is distributed with respect to, or
is attributable to, the LDA Nonrental Assets under the preceding
sentence shall be made by the General Partner.
LDA Nonrental Items: All items of income, gain, loss,
deduction, or credit allocated by LDA to the Partnership with
respect to the LDA Nonrental Assets or recognized by the
Partnership on the sale or other disposition of that portion of
its LDA interest that is attributable to the LDA Nonrental
Assets. The determination of whether, or to what extent, an item
is allocated with respect to, or is attributable to, the LDA
Nonrental Assets under the preceding sentence shall be made by
the General Partner.
(b) The definition of "Net Cash Flow" shall be amended by
excluding therefrom all LDA Nonrental Distributions and identified U.S.
Housing Partnership Distributions.
(c) All capitalized terms used and not defined herein shall
have the meanings ascribed thereto in the Partnership Agreement.
2. Xxxxx X. Xxxxxx ceases to be a General Partner and withdraws
from the Partnership as of the Effective Date.
3. IGC transfers a portion of its interest in the Partnership
consisting of the Class B Interest to American Land, and American Land is
admitted as a Limited Partner of the Partnership and the Class B Partner
with an initial Capital Account balance equal to that portion of IGC's
Capital Account balance that is attributable to the Class B Interest.
4. IGC transfers a portion of its interest in the Partnership
consisting of the Class C Interest to American Housing, and American
Housing is admitted as a Limited Partner of the Partnership and the Class C
Partner with an initial Capital Account balance equal to that portion of
IGC's Capital Account balance that is attributable to the Class C Interest.
5. IGC transfers all of its remaining interest in the
Partnership (other than the Class B and C Interests) to IGP Group, and IGP
Group is admitted as a General Partner of the Partnership and the Class A
Partner with an initial Capital Account balance equal to its Capital
Account balance immediately prior to the Effective Date plus that portion
of IGC's Capital Account balance other than that attributable to the Class
B Interest and other than that attributable to the Class C Interest.
6. IGC ceases to be a General Partner and withdraws from the
Partnership as of the Effective Date.
7. Article 8 of the Partnership Agreement is amended to reflect
the following allocations and distributions:
(a) Except as otherwise required under Code Section 704(c),
LDA Nonrental Items shall be allocated solely to the Class B Partner,
Identified U.S. Housing Partnership Items shall be allocated solely to the
Class C Partner, and all other Partnership items (including Designated
Entity Items, Service Business Items, and all other items of income, gain,
loss, deduction, or credit other than the LDA Nonrental Items and other
than the Identified U.S. Housing Partnership Items) shall be allocated
solely to the Class A Partner.
(b) All LDA Nonrental Distributions shall be distributed
solely to the Class B Partner, all Identified U.S. Housing Partnership
Distributions shall be distributed solely to the Class C Partner, and all
other distributions of cash or other property (including Net Cash Flow,
Designated Entity Distributions, and Service Business Distributions) shall
be distributed solely to the Class A Partner.
8. On or about August 1, 1997, IGC, American Community
Properties Trust ("ACPT") and Banc One entered into a Master Loan Agreement
and certain related agreements (the "Loan Agreements") whereby Banc One
made available a certain credit facility to ACPT and IGC, and IGC granted
certain security interests to Banc One. The Loan Agreements were modified
on October 1, 1998 (the "Loan Agreement Modification"). The amendments
made pursuant to this Seventh Amendment are expressly conditioned upon, and
shall not be effective prior to, the Loan Agreement Modification.
9. All other provisions of the Partnership Agreement except as
amended hereby shall continue in full force and effect. If there are any
conflicts between the terms of the Partnership Agreement and this Seventh
Amendment, than and in such event this Seventh Amendment shall control.
10. Each Partner hereby consents to the transactions described
above, agrees to continue the business of the Partnership, and agrees to be
subject to and bound by the Partnership Agreement, as amended by this
Seventh Amendment.
11. This Seventh Amendment may be executed in any number of
counterparts, all of which together shall constitute a single instrument.
IN WITNESS HEREOF, the parties hereto have executed this Seventh
Amendment to the Partnership Agreement as of the date first written above.
GENERAL PARTNER AND CLASS A PARTNER:
IGP Group Corp.
By: /s/ Xxxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxxx
Title: President
LIMITED PARTNER AND CLASS B PARTNER:
American Land Development US, Inc.
By: /s/ J. Xxxxxxx Xxxxxx
-------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: President
LIMITED PARTNER AND CLASS C PARTNER:
American Housing Properties, L.P.
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
WITHDRAWAL OF XXXXX X. XXXXXX
FROM PARTNERSHIP
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
WITHDRAWAL OF IGC FROM PARTNERSHIP
Interstate General Company L.P.
By: Interstate General Management Corporation
Managing General Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
Exhibit C
LDA Nonrental Assets
Parque Escorial
Carolina, Puerto Rico
Parcel Acres
------ -----
III-1 3.38
III-2 3.42
III-3 3.42
III-4/5 5.06
III-6 3.96
III-7 3.96
III-8 5.93
Q1/Q5 133.75
Q6/Q7 .44
------
Total 163.30
