EXHIBIT 10.12
THIRD AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
OF
THIRD STREET PARTNERS, LTD.
THIS THIRD AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF THIRD STREET
PARTNERS, LTD. (the "Amendment"), effective as of the ____ day of December,
2000, by and among TRG-BRN, LLC, a Florida limited liability company ("TRG"),
LEV-BRN, INC., a Florida corporation ("LEV-BRN"), and BO-MA, LLC, a Florida
limited liability company ("BOMA"), (collectively, the "General Partners" and
individually, a "General Partner"), and THE RELATED GROUP OF FLORIDA, a Florida
general partnership ("Related"), XXXXXX AND SONS, INC., a Maryland corporation
("Xxxxxx"), and BOCA-MANDY ACQUISITIONS, LTD., a Florida limited partnership
("Boca") (each a "Limited Partner" and collectively the "Limited Partners").
RECITALS
A. The General Partners and Limited Partners entered into that
certain Agreement of Limited Partnership of Third Street Partners, Ltd. (the
"Partnership Agreement") which provided for the organization of Third Street
Partners, Ltd. (the "Partnership").
B. The Partnership Agreement was amended by that certain Letter
Agreement dated September 11, 2000 (the "First Amendment") and that certain
Second Amendment to Limited Partnership Agreement dated September ___, 2000 (the
"Second Amendment") (hereafter the Partnership Agreement. First Amendment and
Second Amendment shall be collectively referred to as the "Partnership
Agreement").
C. The Partners now desire to again amend the Partnership
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the General Partners and Limited Partners hereby agree as follows:
1. All capitalized terms used herein and not specifically defined
herein shall have the respective meanings assigned to those terms in the
Partnership Agreement.
2. The Xxxxxx Partners and The Related Partners hereby jointly
and severally covenant and warrant to Boca and Boma that the Xxxxxx Partners and
The Related Partners will cause the Partnership to comply with all of its
obligations as the buyer under the Purchase Agreement (including, without
limitation, payment of the full purchase price thereunder) and close title to
and acquire the fee title interest in the Property not later than the date
specified in the Purchase Agreement for the Closing of title thereunder,
regardless of whether any of the Governmental Approvals or any other Approvals
referred to in the Purchase Agreement have been obtained. The Xxxxxx Partners
and the Related Partners hereby confirm
to Boca and Boma that the Xxxxxx Partners and the Related Partners have accepted
and have no objection to the physical condition of the Main Parcel and accept
title thereto subject to all title exceptions referred to in the Purchase
Agreement and all other and additional title exceptions that have been raised in
the title report and commitment issued by Chicago Title Insurance Company
(#300004907) dated July 26, 2000 and/or the survey referred to therein. In
reliance upon the aforesaid covenants, warranty and confirmation of the Xxxxxx
Partners and the Related Partners, and upon the Xxxxxx Partners and Related
Partners hereby further representing that as of the date hereof, they know of no
grounds upon which the Partnership could refuse to complete the closing of title
under the Purchase Agreement, Boca and Boma, at the request of the Xxxxxx
Partners and the Related Partners, agree with the Xxxxxx Partners and the
Related Partners that Section 6.2.3(b)(ii) and (iii) are deleted and (vii) is
amended to delete therefrom the following "and to cause the reassignment of the
Purchase Agreement".
3. (a) Section 7.2(a) of the Partnership Agreement, as it
relates to the Purchase Money Note, is amended to delete therefrom "Citibank
prime rate, as adjusted from time to time," and insert in lieu thereof "at that
rate [but not to exceed twelve percent (12%) until default, after the expiration
of the applicable period of notice and grace and the maturity or accelerated
maturity of all of the indebtedness evidenced by the Purchase Money Note, and
upon default, at eighteen percent (18%) per annum] that the Partnership may from
time to time pay an institutional lender for acquisition, development or
construction financing with respect to the Project" and to delete "five years"
and insert in lieu thereof "three years." The form of the Purchase Money
Promissory Note and Out Parcel Mortgage are attached hereto as composite Exhibit
3(a)(i) and 3(a)(ii), respectively.
(b) Section 7.2(b) of the Partnership Agreement is
amended and supplemented as follows:
(i) It is agreed that no interest shall accrue
on the Parking Space Note unless it is not paid by the date that it becomes due;
if said Note is not paid on said due date, then from and after said date,
interest shall accrue on the unpaid principal balance thereof at eighteen
percent (18%) per annum.
(ii) Notwithstanding that the Easement was not
entered into within the 45 day period referred to in said Section 7.2(b), the
Partners and the Partnership reaffirm the right of Boca (or its designee) to
receive the recorded Easement, and recognize that such Easement is of critical
importance to Boca (or its designee) in order to profitably develop the Out
Parcel and fully realize the value and economic benefits thereof. Promptly after
the closing of the purchase of the Property and Out Parcel, the Partners shall
agree on a form of the Easement consistent with the provisions of Section 7.2(b)
of the Partnership Agreement which they shall submit to the City of Boca Raton,
Florida (the "City") for its approval. The Easement shall be modified, as
necessary, to secure the City's approval consistent with the rights of the
parties under the Easement. Based upon the calculation prepared for the
Partnership by the Partnership architect, the total number of required parking
spaces on a joint use basis for the development of the Office Building Parcel
with the building as described in the Easement and the development of the Garage
Parcel
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with the building as described in the Easement is 410, of which 43 are required
in order to build the improvements upon the Office Building Parcel. The Purchase
Price for the Easement has been calculated at the rate of $10,000 per parking
space and based upon the information now available, is $430,000. Within ninety
(90) days following the acquisition of the Property and the Out Parcel, Boca
shall advise the Managing General Partner of the total number of spaces which it
determines is necessary for the development of the Out Parcel, and if more
spaces or less spaces are required, the Purchase Price shall be increased or
decreased at the rate of $10,000 per space. Upon completion of the plans for the
Parking Garage, a copy thereof depicting the location of all of the Parking
Spaces and identifying those which shall be for the exclusive use of the Office
Parcel Owner shall be attached to the Easement. The Easement shall be otherwise
completed and executed by the parties thereto. Thereupon, Boca shall make,
execute and deliver to the Partnership the Parking Space Note and Parking Space
Mortgage in a form similar to the Purchase Money Note and Out Parcel Mortgage,
and consistent with the provisions of the Partnership Agreement, as modified
hereby, which Mortgage, when recorded, shall be a second lien upon the Out
Parcel subordinate only to the Out Parcel Mortgage and all of the matters of
title which the Out Parcel Mortgage is subordinate. Upon recording of the
Parking Space Mortgage, the Easement shall be recorded. The Xxxxxx Partners, the
Related Partners, and the Partnership shall take such action as may be necessary
to cause the Easement to be senior to any mortgage or other non-governmental
lien or encumbrance then encumbering the Property. In addition to and not in
limitation of all other rights and remedies available to Boca (or its designee),
Boca shall have the remedy of specific performance against the Partnership to
compel it to cause the Easement to be senior to any mortgage or other
non-governmental lien or encumbrance encumbering the Property.
(iii) The Xxxxxx Partners and the Related Partners
are jointly and severally liable with the Partnership for all of the obligations
of the Partnership under said Section 7.2(b), as modified hereby, relating to
the Easement;
(iv) If Boca (or its designee) commences any
action or proceeding to enforce any of its rights under any of the provisions of
said Section 7.2, as modified hereby, relating to the Easement, or to recover
damages by reason of the default by the Partnership, the Xxxxxx Partners or the
Related Partners, and if Boca (or its designee) is successful in such action or
proceeding, then the Partnership, the Xxxxxx Partners and the Related Partners
shall be jointly and severally liable to pay to Boca (or its designee) all
reasonable costs and expenses incurred by Boca (or its designee) in connection
with such action or proceeding, including court costs and reasonable attorneys'
fees and disbursements; and
(v) All of Boca's rights under said Section
7.2(b), as modified hereby, with respect to the Easement shall be freely
assignable by Boca to any successor owner of the Out Parcel.
(c) The following provision is hereby added to the
Partnership Agreement as new Section 7.2(c):
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"(c) The Partnership covenants and agrees to
construct a parking garage within the Project containing parking spaces as set
forth in Section 7.2(b) hereof, obtain a Certificate of Use therefor and make
the same operational and accessible to the owner of the Out Parcel, and the
tenants, customers, invitees and users of the Out Parcel (and the Xxxxxx
Partners and the Related Partners hereby agree to cause such performance by the
Partnership) not later than the date ("Outside Date") which is five (5) years
after the date of the Closing of title under the Purchase Agreement."
(d) The following provision is hereby added to the
Partnership Agreement as new Section 7.2(d):
"(d) The following provisions will be incorporated into
the Parking Space Note:
(i) The indebtedness under the Parking Space
Note shall be subject to the Partnership performing its obligations under
Section 7.2(c) of the Limited Partnership Agreement of Third Street Partners,
Ltd. (the "Partnership Agreement");
(ii) If Third Street Partners, Ltd. (the
"Partnership") does not perform its aforesaid obligations under Section 7.2(c)
of the Partnership Agreement by the Outside Date, then, at the election of the
mortgagor under the Parking Space Mortgage or its successors or assigns as the
owner of the fee title of the Out Parcel ("Mortgagor"), exercisable by written
notice ("Election Notice") to the mortgagee under said Mortgage ("Mortgagee"),
the Parking Space Mortgage and the Parking Space Note shall each become null and
void effective upon the giving of the Election Notice, and if said Election
Notice is given, the Mortgagee, within ten (10) days after the giving of such
notice, will execute and deliver to the Mortgagor an instrument in recordable
form and otherwise in form and substance reasonably satisfactory to Mortgagor,
discharging and cancelling the Parking Space Mortgage (and the note secured
thereby). If Mortgagor becomes entitled to give, and gives the Election Notice,
then Mortgagor shall be deemed to have waived its remedy for specific
performance of the Partnership's obligations to construct said parking spaces,
including the Partnership's obligations under Section 7.2(c) of the Partnership
Agreement; provided, however, that the giving of the Election Notice shall not
waive prejudice, or otherwise affect any other rights and remedies of Mortgagor,
including, without limitation, the right of Mortgagor to recover any and all
damages suffered or sustained by Mortgagor as the result of the breach of any of
the covenants or agreements set forth in said Section 7.2(c) of the Partnership
Agreement."
(e) The following provision is hereby added to the
Partnership Agreement as new Section 7.2(e):
"(e) Until the Easement has been executed and
delivered by the respective owners of the Property and the Out Parcel and duly
recorded, the Partnership will not transfer the Property (and the Xxxxxx
Partners and the Related Partners will not cause or permit the Partnership to
transfer the Property) unless the transferee shall execute and deliver to Boca
(or its designee) an instrument in recordable form and otherwise in form and
substance reasonably satisfactory to Boca, pursuant to which
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the transferee assumes and agrees to perform all the obligations of the
Partnership under Section 7.2(b) and 7.2(c) of this Agreement as well as this
Section 7.2(e); but no such transfer shall diminish or otherwise affect any of
the rights or obligations of any of the parties hereunder."
4. Section 9.5.3 of the Partnership Agreement is provided to
delete therefrom "$525,000.00" and insert in lieu thereof "such amount in excess
of $525,000.00 but not more than $1,000,000.00 as may be agreed to by the "New
Investor" (as such term is hereafter defined) holding at least a 40% Partnership
Interest.
5. Article XI is amended by adding thereto the following:
"11.5 Admission of New Investor. Notwithstanding any other
provision of the Partnership Agreement, TRG and LEV-BRN, as General
Partners of the Partnership shall have the right to admit a new
investor (the "New Investor") to the Partnership as a General Partner,
Limited Partner, or in both capacities in consideration for such
investment as said General Partners deem appropriate in their
reasonable discretion. In consideration of such investment such General
Partners may allocate to such New Investor an aggregate Partnership
Interest in the Partnership of an amount not to exceed sixty percent
(60%), thereby diluting each of the other Partner's Interest in the
Partnership on a pro rata basis by such amount of Partnership Interest
as has been assigned to the New Investor. In connection with the
admission of the New Investor, the Partner shall make, execute and
deliver such amendments to the Partnership Agreement as shall be
commercially reasonably as may be requested by the New Investor;
provided, however, that there shall be no change in the Partnership
Interest of any Partner other than the dilution described herein
without the written consent of all the Partners, and there shall be no
other change to the rights or obligations of any Partner without the
written consent of such Partner.
6. Schedule B of the Partnership Agreement is hereby amended as
follows:
The Percentage Interest of the Limited Partners shall be as
follows:
Related 47.4%
Xxxxxx 47.4%
Boca 4.9%
7. As modified and supplemented hereby, the Partnership Agreement
continues to remain in full force and effect.
8. This Agreement may be executed in counterparts and may be
delivered by telecopy, each of which shall be deemed an original. No party shall
be bound hereunder unless it has executed this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Partnership Agreement this ____ day of December, 2000.
TRG-BRN, LLC, a general partner of the Partnership
By:
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LEV-BRN, INC., a general partner of the Partnership
By:
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BO-MA, LLC., a general partner of the Partnership
By:
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Xxxx Xxxxxx, President and Sole Member
THE RELATED GROUP OF FLORIDA, a Florida general
partnership, a limited partner of the Partnership
By: RELATED FLORIDA, LTD., a Florida limited
partnership
By: RELATED FLORIDA, INC., a Florida
corporation, a general partner
AND
By: RELATED GENERAL OF FLORIDA, LTD.,
a Florida limited partnership
By: RCMP, INC., a Delaware corporation, a
general partner
By:
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[SIGNATURE PAGES CONTINUED ON NEXT PAGE]
XXXXXX AND SONS, INC., a limited partner of the
Partnership
By:
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BOCA-MANDY ACQUISITIONS, LTD., a Florida
limited partner of the partnership
By: BOCA-MANDY CORP., its general partner
By:
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Xxxx Xxxxxx, President
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