EXHIBIT 99.3
Third Amendment to
Second Restated and Amended
Agreement of Limited Partnership
of
National Operating, L.P.,
A Delaware Limited Partnership
SYNTEK ASSET MANAGEMENT, L.P., a Delaware limited partnership
(hereinafter "Syntek"), the sole general partner of NATIONAL OPERATING, L.P., a
Delaware limited partnership (hereinafter the "Partnership"), pursuant to the
authority granted to Syntek by Paragraph 15.2.19(i) of the Second Restated and
Amended Agreement of Limited Partnership, dated as of July 29, 1987, as amended
as of May 14, 1990 (First Amendment) and December 18, 1998 (Second Amendment)
(hereinafter the "Partnership Agreement"), by this Third Amendment to Second
Restated and Amended Agreement of Limited Partnership ("Third Amendment") hereby
amends the Partnership Agreement in the following respects:
A. Whereas, Syntek, National Realty, L.P., a Delaware limited
partnership ("Master Partnership"), American Realty Trust, Inc., and the
National Realty, L.P. Oversight Committee are parties to an agreement entitled
Agreement for Cash Distribution and Election of Successor General Partner, dated
as of July 15, 1998, as amended by orders of Superior Court of the State of
California for the County of San Mateo (the "Court"), dated August 4, 1998, and
September 1, 1998, in that class action ("Xxxxxxx Class Action") captioned
Xxxxxxx v. Southmark Corporation, No. 322135 (the "Amended Cash Distribution
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Agreement");
Whereas, Section 6 of the Amended Cash Distribution Agreement
requires that Syntek amend the partnership agreement of the Master Partnership
("Master Partnership Agreement") and the Partnership Agreement so that (i) when
Syntek assigns to the Successor General Partner (as defined in the Amended Cash
Distribution Agreement) its interests as the sole general partner in the
Partnership
and the Master Partnership, Syntek shall not receive any payment from the
Partnership or the Master Partnership for such Partnership interest; (ii) future
general partners of the Master Partnership and the Partnership shall not have
their interests in the Master Partnership or the Partnership repurchased unless
such a future general partner is involuntarily removed as general partner of the
Master Partnership; and (iii) the amounts that may be paid by the Master
Partnership and Partnership to any parties who serve as general partner of such
partnerships after the Successor General Partner ceases to serve as general
partner, be limited;
Whereas, the purpose and intent of this Third Amendment is
more fully summarized in Article III.G of that Xxxxxxx Class Action document
entitled Notice of Hearing to Consider Approval of Amended Agreement for Cash
Distribution and Election of Successor General Partner and for Termination of
the 0000 Xxxxxxx Xxxxxxxxxx Agreement; and
Whereas, the Partnership and the Master Partnership have been
historically treated on a consolidated economic basis with no double accounting,
and the payments that Syntek has been entitled to receive as general partner of
the Partnership therefore have been calculated on a consolidated basis with the
payments Syntek has been entitled to receive as the general partner of Master
Partnership.
B. The Partnership Agreement is hereby amended as follows:
1. Paragraph 9.17 of the Partnership Agreement shall be
amended in its entirety to read as follows:
9.17 No Double Payment of Fees. Fees paid to the
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General Partner under this Agreement shall not be paid again
to the General Partner of the Master Partnership and
likewise fees first paid to the General Partner of the
Master Partnership shall not be paid again to the General
Partner so that there shall be no double accounting of fees.
The General Partner shall not be paid any fees that the
General Partner of the Master Partnership is prevented from
receiving under the Master Partnership Agreement, including,
without limitation, those limits on fees included in
Paragraph 9.17 of the Certificate of Amendment to the
Master Partnership included as Exhibit A to the Amended Cash
Distribution Agreement.
2. A new paragraph 17.9A shall be inserted before both
Paragraphs 17.9. The new Paragraph 17.9A shall read as follows:
17.9A Limitations on Payment for General Partner's
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Interest Because of Master Partnership Restrictions.
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Notwithstanding any other provision of this Agreement,
including, without limitation, either Paragraph 17.9 entitled
"Purchase of General Partner's Interest" or the other
Paragraph 17.9 entitled "Interests of Departing General
Partner and Successor," Syntek shall assign its entire
interest as a general partner in the Partnership to the
Successor General Partner. Syntek shall not have its interest
in the Partnership repurchased. If, (a) after Syntek ceases
to be the General Partner, a General Partner ceases to be the
General Partner, and (b) as general partner of the Master
Partnership, the General Partner is entitled to have its
interest in the Master Partnership repurchased by the Master
Partnership; then such General Partner shall have its one
percent (1%) interest as a General Partner in the Partnership
repurchased on a consolidated basis with its interest in the
Master Partnership subject to the terms and conditions of the
Master Partnership Agreement. If both conditions, (a) and (b)
above, are not met, then the General Partner shall not be
entitled to any payment or other consideration from the
Partnership for the General Partner's one percent (1%)
interest as a General Partner in the Partnership.
C. In the event of any conflict, inconsistency, or ambiguity
between any provision of this Third Amendment and the Partnership Agreement, the
provisions of this Third Amendment shall govern and control. Capitalized terms
not otherwise defined herein shall have the meaning assigned such terms in the
Partnership Agreement.
D. The limited partners of the Master Partnership are intended
third-party beneficiaries of this Third Amendment.
IN WITNESS WHEREOF, Syntek has executed this Third Amendment of
Limited Partnership Agreement as of the 18th day of December, 1998.
SYNTEK ASSET MANAGEMENT, L.P., a
Delaware limited partnership
By SYNTEK ASSET MANAGEMENT,
INC., a Texas corporation, as managing
general partner
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
By /s/ Xxxx X. Xxxxxxxx,
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Xxxx X. Xxxxxxxx, General/Partner
STATE OF TEXAS
COUNTY OF DALLAS
On this 18th day of December, in the year 1998, before me Xxxxxx
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Hedgcoxe, a Notary Public in and for the State of Texas, personally appeared
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Xxxxxxx X. Xxxxxxx, personally known to me, or proved to me on the basis of
satisfactory evidence, to be the person whose name is subscribed to the within
instrument on behalf of Syntek Asset Management, L.P., and acknowledged to me
that said partnership executed it.
[SEAL APPEARS HERE] /s/ Xxxxxx Xxxxxxxx
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Notary Public, Stats of Texas
My Commission Expires:
February 4, 2002
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XXXXX XX XXXXX
XXXXXX XX XXXXXX
Xx this 18th day of December, in the year 1998, before me Xxxxxx
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Hedgcoxe, a Notary Public in and for the State of Texas, personally appeared
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Xxxx X. Xxxxxxxx, personally known to me, or proved to me on the basis of
satisfactory evidence, to be the person whose name is subscribed to the within
instrument on behalf of Syntek Asset Management, L.P., and acknowledged to me
that said partnership executed it.
/s/ Xxxxxx Xxxxxxxx
[SEAL APPEARS HERE] ----------------------------------
Notary Public, State of Texas
My Commission Expires:
February 4, 2002
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