Exhibit 10(c)
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FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
OF BT ORLANDO LIMITED PARTNERSHIP
THIS AMENDMENT TO AGREEMENT ("Amendment") is made and entered into as
of July ___, 1996 by and between BEF, Inc., a Tennessee corporation ("BEFI"),
Xxxxxxxx-Xxxxx Industries, Inc., a Delaware corporation ("Xxxxxxxx"), BT
Partnership, a Tennessee general partnership ("BT") and EST Orlando, Ltd., a
Florida limited partnership ("EST").
R E C I T A L S :
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X. XXXX, Xxxxxxxx, XX and EST, as of May 20, 1996, entered into that
certain Agreement of Limited Partnership of BT Orlando Limited Partnership (the
"Original Partnership Agreement").
X. XXXX, Xxxxxxxx, XX and EST desire to amend certain provisions of the
Original Partnership Agreement to more clearly reflect the intent of the parties
with respect to such agreement.
A G R E E M E N T :
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NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements hereinafter set forth, the parties hereto agree as follows:
1. The first paragraph of Section 4.3(a) of the Original Partnership
Agreement is amended and restated in its entirety as follows:
(a) Additional Contributions. Except as provided herein, no
Partner shall be required to contribute additional capital to the
Partnership. BEFI, BT and EST agree that they will contribute pro rata
as required, the cost of all partnership preconstruction/pre-closing
expenses associated with the development of the Project, including but
not limited to, planning, engineering, environmental testing,
insurance, legal, permitting, appraisal, construction loan application,
financing and mortgage brokerage fees, marketing and management costs.
Xxxxxxxx shall contribute (as set forth in Section 6.5) the real estate
taxes on the Property incurred by Xxxxxxxx from the date of this
Agreement until the Property is transferred to the Partnership. The
Partners acknowledge that Xxxxxxxx, although not obligated to do so,
has incurred certain preconstruction/preclosing expenses associated
with the development of the Project, pertaining to the waiver of the
full "Development of Regional Impact" process. The Partners agree that,
to the extent such advances and contributions made pursuant to this
first paragraph of Section 4.3(a) are not reimbursed as set forth in
Section 6.5, such amounts shall constitute Capital Contributions for
all purposes under this Agreement. Construction financing is to be
obtained to finance both the hard and soft construction costs of the
Project. BEFI shall use its best efforts to secure construction
financing for the Project, subject to the approval of Xxxxxxxx.
2. Section 6.5 of the Original Partnership Agreement is amended and
restated in its entirety to read as follows:
Section 6.5 Reimbursement of Certain Preconstruction Expenses.
The preconstruction expenses incurred by the Partners (from December
12, 1995 forward) and the real estate taxes on the Property incurred by
Xxxxxxxx (from the date of this Agreement forward) until the Property
is transferred to the Partnership shall be paid by the Partnership to
said Partners proportionate to the respective amounts incurred (to the
extent available from the proceeds of any construction loan). Such
reimbursement shall occur, to the extent funds are available, upon the
issuance of certificates of occupancy for the stores within the
Property which had leases in existence at the closing of the
construction loan. Reimbursement of these expenses shall take priority
over the distributions provided for in Section 6.1(ii) - (iii) and
Section 6.2(ii) - (v).
The Partners acknowledge that their respective attorneys' fees
incurred in connection with the preparation of this Agreement shall not
be submitted for reimbursement under Section 6.5 of this Partnership
Agreement. The Partners acknowledge that Xxxxxxxx, although not
obligated to do so, has incurred (and may incur additional) expenses in
connection with the development of the Property, and such expenses may
be submitted for reimbursement under this Section 6.5.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Agreement of Limited Partnership as of the day and year first above
written.
BEF, INC., a Tennessee
corporation, as General Partner
By:___________________________
XXXXXXXX-XXXXX INDUSTRIES, INC.,
a Delaware corporation, as
General Partner
By:___________________________
BT PARTNERSHIP, a Tennessee
general partnership, as Limited
Partner
By: BE, Inc., Managing Partner
By:____________________________
EST ORLANDO, LTD., a Florida
limited partnership, as Limited
Partner
By:____________________________
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