EXHIBIT 10.24
SECOND AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF
HOB MARINA CITY PARTNERS, L.P.
This Second Amendment of Limited Partnership ("Second Amendment") is
entered into as of the ____th day of____, 1997, by and among HOB Marina City,
Inc., a Delaware Corporation, as General Partner, and Marks Theater
Investment, L.L.C., an Illinois limited liability Company ("Marks"), the
successor-in-interest to Niki Development Corp., an Illinois corporation
("Niki"), Platinum Blues Chicago, L.L.C., an Illinois limited liability
company ("Platinum")and HOB Chicago, Inc., a Delaware corporation ("HOB") as
Limited Partners.
For and in consideration of One and No/100 dollars ($1.00) and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereby recite and agree as follows:
1. Recitals.
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(a) Partnership Agreement. The parties hereto formed a partnership
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pursuant to Agreement of Limited Partnership of HOB Marina City
Partners, L.P. ("Partnership Agreement") dated as of January 29,
1996.
(b) Definitions. The capitalized terms contained in this Second
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Amendment and not otherwise specifically defined herein shall
have the same meaning as is ascribed to them in the Partnership
Agreement. All references in the Partnership Agreement to Niki
shall be deemed to refer to Marks.
(c) Amendment. The parties have agreed to amend the Partnership
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Agreement as hereinafter set forth, and are entering into this
Second Amendment to effectuate such amendments.
2. Definition. Article I of the Partnership Agreement is hereby amended
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to add the following new definition as follows:
"Single Purpose Entity" shall mean a person, other than an individual,
estate or unincorporated association, which:
(a) has not engaged and shall not engage in any business unrelated
to the management and ownership of the Mortgaged Property (or to the
ownership of a person which owns the Mortgaged Property);
(b) has not owned and will not own any assets other than those
related to the Mortgaged Property (or to the ownership of a person
which owns the Mortgaged Property);
(c) shall not, without the unanimous consent of the Independent
Director, as defined below, file a bankruptcy or insolvency petition or
otherwise institute
insolvency proceedings;
(d) has not dissolved and shall not dissolve, liquidate,
consolidate, merge, or sell all or substantially all of its assets or
amend the purpose of its organizational documents with respect to its
purpose or any other provision designed to ensure Single Purpose Entity
status;
(e) has had and shall have an Independent Director;
(f) shall not incur any debt, other than accounts and unsecured
obligations incurred with respect to the operation of the Mortgaged
Property in the ordinary course of business;
(g) has corrected and shall correct any known misunderstanding
regarding its separate identity;
(h) has maintained and shall maintain its accounts separate from any
other person;
(i) has maintained and shall maintain its books, records,
resolutions and agreements as official records;
(j) has not commingled and shall not commingle its funds or assets
with those of any other person;
(k) has conducted and shall conduct its own business in its own
name;
(l) has maintained and shall maintain its financial statements,
accounting records and other entity documents separate from any other
person;
(m) has paid and shall pay its own liabilities out of its own funds
or assets;
(n) has observed and shall observe all entity formalities;
(o) has not guaranteed or become obligated and shall not guarantee
or become obligated for the debts of any other person and has not held
and will not hold out its credit as being available to satisfy the
obligations of others;
(p) has not acquired and shall not acquire obligations or securities
of its affiliates;
(q) has allocated and shall allocate fairly and reasonably any
overhead for shared office space and use separate stationery, invoices,
and checks;
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(r) has not pledged and shall not pledge its assets for the benefit
of any other person;
(s) has held and shall hold itself out as a separate and distinct
entity under its own name and not as a division or part of any other
person;
(t) has not made and shall not make loans to any person;
(u) has maintained and shall maintain adequate capital for its
normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations;
(v) has not identified and shall not identify its owners or any
affiliates as a division or part of it;
(w) has not entered and shall not enter into or be a party to, any
transaction with its owners or its affiliates except in the ordinary course
of its business and on terms which are intrinsically fair and are no less
favorable to it than would be obtained in a comparable arm's-length
transaction with an unrelated third party.
All capitalized terms which are not defined herein shall have the meaning
stated in the Loan Agreement by and between Carbon Capital Mortgage Partners,
L.P., as Lender, and HOB Marina City Partners, L.P., as Borrower, executed May
2, 1997.
3. General Authority of General Partner. Article V of the Partnership
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Agreement is hereby amended to renumber the current subsection (c) of
Section 5.2 to subsection (d) and to add a new subsection (c) as
follows:
(c) to take any and all actions necessary to maintain the
Partnership's status as a Single Purpose Entity.
4. Counterparts. This Second Amendment may be executed in multiple
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counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
5. Other Terms. Except as specifically modified hereby, all other terms,
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conditions and provisions of the Partnership Agreement shall remain in
full force and effect as of the date thereof.
6. Binding Effect. This agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and
assigns.
(Signature Page immediately follows.)
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GENERAL PARTNER:
HOB MARINA CITY, INC., a Delaware
corporation
By:
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Name:
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Title:
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LIMITED PARTNERS:
MARKS THEATER INVESTMENT, L.L.C., an
Illinois limited liability company
By:
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Name:
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Title:
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PLATINUM BLUES CHICAGO, L.L.C.,
an Illinois limited liability company
By:
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Name:
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Title:
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HOB CHICAGO, INC.,
a Delaware corporation
By:
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Name:
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Title:
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(Signature Page for Second Amendment to Agreement of Limited Partnership of HOB
Marina City Partners, L.P.)
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