SEVENTH AMENDMENT TO
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE,
Effective: April 24, 0000
Xxxxxxx Xxxxxxxxx to Restated Partnership Agreement made with effect this
24th day of April, 1997, by and between Janus Industries, inc., successor by
merger to The Xxxx Group Management Corporation fka Xxxx Hospitality, Inc.
("Janus") and Elbe Properties.
WITNESSETH:
WHEREAS, The Xxxx Group Incorporated and Elbe Properties entered into a
Restated General Partnership Agreement dated with effect January 13, 1986 (the
"Agreement"); and
WHEREAS, the Agreement was amended by First Amendment dated January 13,
1986; Second Amendment dated December 31, 1986; Third Agreement dated December
31, 1988; Fourth Amendment dated December 31, 1988; Fifth Amendment dated June
1, 1990; and Sixth Amendment dated January 1, 1992 (collectively the Agreement
and all amendments shall be called the "Partnership Agreement"); and
WHEREAS, Janus has succeeded by merger to the interest of The Xxxx Group
Management Corporation fka Xxxx Hospitality, Inc. in the partnership and the
parties hereto desire to amend the Partnership Agreement to reflect such
succession by Janus.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. Paragraph 6 of the Partnership Agreement shall be modified to read as
follows:
"6. The names and addresses of the General Partners are as follows:
Name Address
---- -------
Janus Industries, Inc. Executive Court II, Suite 232
0000 Xxxxxxxxx Xxxxxxxxx XX
Xxxx Xxxxx, Xxxxxxx 00000
Elbe Properties 0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
2. The allocation of profits, losses and cash flow provided in Paragraph
8 of the Partnership Agreement shall be modified as follows:
Janus 85.0%
Elbe Properties 15.0%
3. Other than as provided above, the Partnership Agreement shall remain
unaltered, in full force and effect.
Signed with effect on the day and year first above written.
Janus Industries, Inc., a Delaware corporation
By: /s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx, President
Elbe Properties, an Ohio general partnership
By: /s/ XXXXX X. XXXX
-------------------------------------------
Xxxxx X. Xxxx, General Partner
2
MODIFICATION OF PARTNERSHIP AGREEMENT
AND CONSENT TO PAY FEES FOR PRIOR SERVICES
Agreement made with effect the first day of April, 1985 by and between
KINGS LODGE CORPORATION (formerly Kings Dominion Corporation), a Virginia
corporation (hereinafter called "Kings") and THE XXXX GROUP INCORPORATED, a
Virginia corporation (hereinafter called "Xxxx").
W I T N E S S E T H:
WHEREAS, Kings and Xxxx entered into a general partnership agreement dated
June 1, 1976 (the "Partnership Agreement"), wherein Kings and Xxxx formed a
Virginia general partnership called Kings Dominion Lodge (hereinafter called
"KDL"); and
WHEREAS, Xxxx and Kings desire to modify the Partnership Agreement; and
WHEREAS, The Xxxx Group Management Corporation (hereinafter called
"Corporation") and Xxxx have a unity of ownership; and
WHEREAS, Xxxx would like to have KDL pay certain sums to Corporation for
prior services rendered by Corporation to KDL and seeks the consent of Kings to
pay same.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto hereby agree as follows:
1. Kings and Xxxx hereby amend the first sentence of Paragraph 9 of the
Partnership Agreement to read as follows:
"9. The net earnings and losses of the Partnership for each fiscal
year shall be allocated seventy percent (70%) to Xxxx and thirty
percent (30%) to Kings; provided, however, that in the fiscal year
ending March 31, 1986, the net earnings and losses of the Partnership
shall be allocated one hundred percent (100%) to Xxxx and zero percent
(0%) to Kings."
2. Other than as provided above, the Partnership Agreement shall remain in
full force and effect, without modification.
3. Pursuant to the terms of Paragraph 10 of the Partnership Agreement,
Kings hereby gives its consent for Xxxx to cause KDL, during KDL's fiscal year
ending March 31, 1986, to pay to Corporation such sum or sums as Xxxx and
Corporation reasonably determine will compensate Corporation for prior services
rendered by Corporation to KDL.
Signed with effect on the day and year first above-written.
KINGS DOMINION LODGE
By: /s/ XXXXXX XXXXXX
-----------------------------
Xxxxxx Xxxxxx
THE XXXX GROUP INCORPORATED
By: /s/ XXXXX X. XXXX
-----------------------------
Xxxxx X. Xxxx
-2-
SECOND MODIFICATION OF PARTNERSHIP AGREEMENT
RESTATED PARTNERSHIP AGREEMENT
Agreement made with effect the 13th day of January, 1986, by and between
The Xxxx Group Incorporated, a Virginia corporation (hereinafter called "Xxxx
Group"); and Elbe Properties, an Ohio general partnership (hereinafter called
"Elbe").
WITNESSETH:
WHEREAS, Kings Lodge Corporation, formerly Kings Dominion Corporation, a
Virginia corporation (hereinafter called "Kings") and Xxxx Group entered into a
general partnership agreement dated June 1, 1976 (the "Agreement"), wherein
Kings and Xxxx Group formed a Virginia general partnership called Kings Dominion
Lodge (hereinafter called "KDL"); and
WHEREAS, Kings and Xxxx Group did modify the Agreement by Modification of
Partnership Agreement dated with effect April 1, 1985 (the "Modification"); and
WHEREAS, Elbe has effective this day purchased all the right, title and
interest of Kings in KDL; and
WHEREAS, the parties hereto desire to delete all of the terms and
provisions of the Agreement, as previously modified by the Modification
(collectively the "Partnership Agreement") and to entirely restate the same.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE
This Restated Partnership Agreement, entered into with effect this 13th day
of January, 1986, by and between The Xxxx Group Incorporated, a Virginia
corporation (hereinafter sometimes referred to as "Xxxx") and Elbe Properties,
an Ohio general partnership (hereinafter sometimes referred to as "Elbe").
WITNESSETH:
WHEREAS, the parties hereto do hereby agree to delete the terms and
provisions of the Partnership Agreement and to restate same; and
WHEREAS, the parties desire to enter into a Restated Partnership Agreement
for the ownership and operation of the real property described on the attached
Exhibit A (the "Real Property").
NOW, THEREFORE, the parties hereto agree as follows:
1. The parties hereto hereby form a General Partnership composed of the
parties hereto, as General Partners, pursuant to the General Partnership Act of
the Commonwealth of Virginia (the "Partnership").
2. The Partnership shall be conducted under the firm name and style of
"Kings Dominion Lodge". The principal place of business of the Partnership will
be Hanover County, Virginia or such other place as the General Partners may
decide.
3. The purpose and business of the Partnership shall be:
A. to erect, construct, operate, manage, maintain and repair
a lodge of approximately two hundred fifty (250) units and a
restaurant on the Real Property;
B. to buy, own, sell, convey, assign, mortgage or lease any
personal property necessary to the operation of the abovesaid
lodge and restaurant;
C. to borrow money and issue evidences of indebtedness in
furtherance of any or all of the objectives of its business; to
secure the same by mortgage, pledge or other lien; and
D. to enter into any kind of activity and to perform and
carry out contracts of any kind necessary to, or in connection
with, or incidental to the accomplishments of the purposes of
this Partnership.
4. The term of the Partnership shall begin as of the execution date of this
Agreement and shall continue thereafter indefinitely subject to termination
pursuant to the provisions of the Uniform Partnership Act of the Commonwealth of
Virginia and also pursuant to the termination provisions hereinafter set forth.
5. From time to time, Xxxx Group shall prepare for execution by the
partners a Certificate of Partnership or Amended Certificate of Partnership and
cause the same to be filed in accordance with applicable law.
6. The names and addresses of the General Partners are as follows:
The Xxxx Group Incorporated
0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
2
Elbe Properties
0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
7. A. Each of the partners shall have a capital account on the books of the
Partnership.
B. Additional contributions to the capital of the Partnership shall be
made as the partners shall mutually agree.
C. No withdrawals or distributions from the capital accounts shall be
made to the partners except upon termination of the Partnership.
8. The net earnings and losses of the Partnership for each fiscal year
shall be allocated seventy per cent (70%) to Xxxx Group and thirty per cent
(30%) to Elbe. Cash flow arising with respect to each fiscal year of the
Partnership shall be distributed to the partners on the basis of a seventy per
cent (70%) distribution to Xxxx Group and a thirty per cent (30%) distribution
to Elbe, provided no such distribution shall be made to the extent the
operations of the Partnership's business are impaired. Distribution shall be
made from time to time with respect to each fiscal year. For purposes of this
Agreement, "cash flow" shall mean the operating profits of the Partnership as
determined in accordance with generally accepted accounting principles
consistently applied.
9. Xxxx Group shall be the Managing Partner of the Partnership and shall be
vested with the following duties:
A. to account faithfully and fully to the partners with
respect to all property of the Partnership and to furnish to each
of the partners from time to time accounting and operating
reports;
B. to manage the affairs of the Partnership, including the
development and operation of the lodge, to employ, discharge and
fix the compensation for all personnel required in the conduct of
the Partnership business, and to enter into contracts for the
operating of the Partnership and including, without limitation,
contracts for the day-to-day operation of the lodge and leasing
of the lodge facilities;
C. to designate those agents of the Partnership who shall
have authority to bind the Partnership with reference to
extensions of credit, bank transactions, and agreements of any
nature;
D. to administer all labor relations matters relating to the
Partnership, to promulgate and make policy and other decisions
with respect to such labor relations,
3
and to be responsible for the determination of all issues,
matters and disputes which might arise between the Partnership
and any of its employees; and
E. to borrow funds for and on behalf of and in the name of
the Partnership, and in connection therewith to execute notes,
assignments, deeds of trusts/mortgages, affidavits, agreements
and other related documents.
Xxxx Group shall not: (i) assign Partnership property in trust for
creditors or on the assignee's promise to pay the debts of the Partnership, nor
confess any judgment against the Partnership; or (ii) commence construction of
any building on the Real Property without written approval of the plans and
specifications for such building from the other partners.
10. At such place as she partners may from time to time select, there shall
be kept books of account, in which shall be entered fully and accurately each
and every transaction of the Partnership, in accordance with generally accepted
accounting principles consistently applied. All partners shall have the right to
inspect and examine such books at all reasonable times. The books shall be
closed, balanced and audited at the end of each fiscal year. Annual statements
showing the Partnership profits and losses for the fiscal year and indicating
the share of profit or loss of each partner for income tax purposes shall be
prepared and distributed to all the partners within a reasonable time after the
close of each fiscal year.
11. The funds of the Partnership shall be deposited in a separate bank
account at a banking institution in the name of the Partnership and no funds not
belonging to the Partnership shall be commingled with funds of the Partnership.
The partners, or their duly authorized agents, shall be authorized to draw
checks upon said account and shall arrange for the appropriate conduct of such
Partnership bank account; provided, however, that no funds shall be withdrawn
from any such account except for a purpose provided for in this Agreement.
12. The Partnership shall be dissolved without breach of this Agreement
upon the happening of any one of the following events:
A. the decision of all of the partners to dissolve the
Partnership;
B. a sale of the Real Property with final cash payment
received.
13. Upon any event of dissolution of the Partnership specified above in
Paragraph 12, the Partnership business shall be terminated, its liabilities
discharged, and its property distributed as hereinafter described. A proper
accounting shall be made of the
4
accounts of the Partnership and of each Partner thereto, and of the Partnership
net income or Partnership net losses from the date of the last previous
accounting to the date of dissolution.
The partners shall proceed to wind-up and terminate the Partnership
affairs or may appoint a Liquidating Trustee and such Liquidating Trustee shall
have all the rights, powers and duties of the Partners in acting as the
Liquidating Trustee.
A reasonable period of time shall be allowed for the orderly
termination of the Partnership's business, discharge of its liabilities and
distribution of its remaining property so as to enable the Partnership to
minimize the normal losses of a liquidation process.
Upon the dissolution or termination of the Partnership, for any reason
and by any means, the proceeds of such liquidation shall be applied and
distributed in the following order of priority:
A. to the payment of debts and liabilities of the
Partnership (other than any loans or advances that may have been
made by any partner) and to the expenses of liquidation or of the
Liquidating Trustee;
B. to the setting up of any reserves which the partners or
Liquidating Trustee may deem reasonably necessary for any
contingent or unforeseen liabilities or obligations of the
Partnership or of the partners, arising out of or in connection
with the Partnership;
C. to the payment of loans made by any partner;
D. to the payment of the partners' positive capital accounts
on the books of the Partnership; and
E. any balance then remaining shall be distributed to the
partners in accordance with the amounts of their respective
percentage interests in the sharing of profits of the
Partnership.
14. This Partnership Agreement shall not be construed to prevent or in any
way limit the unrestricted rights of the parties to engage in and carry on any
form or manner of other similar enterprise to that of the Partnership.
15. Each partner may charge to the Partnership reasonable management
expenses, provided such expenses have been approved in advance by the other
partners. An affiliate of a partner may be hired for management duties, provided
the fees charged are commercially reasonable.
5
16. Any and all notices called for under this Partnership Agreement shall
be deemed adequately given only if in writing and sent by registered or
certified mail, postage prepaid, to the party or parties for whom such notices
are intended. All such notices, in order to be effective, shall be addressed to
the last address of record on the Partnership books.
17. Interests in this Partnership Agreement are not assignable by any
partner without the consent of all partners. All partnership decisions not made
by Xxxx Group under Paragraph 9 shall be voted upon by the partners based upon
their percentage sharing of profits and losses, with a majority vote required.
18. No amendment nor modification of this Agreement shall be made except by
instrument in writing duly signed by the parties hereto.
19. This Agreement shall be construed in accordance with the laws of the
Commonwealth of Virginia.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ELBE PROPERTIES
By: /s/ XXXXX X. XXXX
-----------------------
Xxxxx X. Xxxx, duly
authorized general partner
THE XXXX GROUP INCORPORATED
By: /s/ XXXXX X. XXXX
-----------------------
Xxxxx X. Xxxx, President
6
EXHIBIT "A"
ALL that piece or parcel of land lying and being in Beaverdam District, Hanover
County, Virginia, to the East of the right of way for Interstate 95 containing
10.5 acres as shown on the plat of Associated Engineers & Surveyors Ltd. dated
July 29, 1976, and revised August 6, 1976 and August 12, 1976, a copy which is
recorded herewith and made a part hereof and being more particularly described
as follows:
BEGINNING at a point at a rod(s) on the right-of-way line of Frontage Road
approximately 1,344 feet, more or less, from the south line of Route 30; thence
in an easterly direction north 90(degrees) 00' 00" east 597.09 feet to a rod(s);
thence in a southerly direction south 00(degrees) 00' 00" east 762.25 feet to a
rod(s); thence in a westerly direction south 84(degrees) 55' 21" west 542.75
feet to a rod(s); thence in northerly direction fronting on the right-of-way to
Frontage Road north 06(degrees) 03' 30" west 557.03 feet to a Virginia
Department of Highways right-of-way monument; thence in a northerly direction
along the arc of a curve with a radius of 1,115.12 feet fronting on the
right-of-way to Frontage Road 240.99 feet to a rod(s); thence in a northerly
direction north 6(degrees) 19' 26" est 15.95 feet to a rod(s) to the place and
point of beginning.
BEING the same real estate conveyed to Kings Dominion Lodge, a Virginia general
partnership, by Deed from Family Leisure Centers, Inc., an Ohio corporation,
dated August 5, 1976 and recorded in the Clerk's Office of the Circuit Court of
Hanover County, Virginia, in Deed Book 405. Page 330.
TOGETHER WITH a sixteen (16) foot sanitary sewer easement across the lands of
Family Leisure Centers, Inc., described as follows:
ALL that piece or parcel of land lying and being in Beaverdam District, Hanover
County, Virginia, to the East of the right-of-way for Interstate 95, containing
0.428 acres as shown on plat entitled "Plat Showing, a 16' Sanitary Sewer
Easement Across 'Kings Dominion' in Beaverdam Dist., Hanover County, Virginia"
prepared by Associated Engineers & Surveyors Ltd. and dated August 3, 1976, a
copy of which is recorded herewith and made a part hereof.
BEING the same easement conveyed to Kings Dominion Lodge by deed from Family
Leisure Centers, Inc. dated August 5, 1976 and recorded in the Clerk's Office of
the Circuit Court of Hanover County, Virginia, in Deed Book 405, Page 334.
SIXTH AMENDMENT TO
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE,
Effective: January 1, 1992
Sixth Amendment to Restated Partnership Agreement made with effect this 1st
day of January, 1992, by and between Xxxx Hospitality, Inc. ("Xxxx
Hospitality"), Xxxx Xxxx ("X. Xxxx") and Elbe Properties.
W I T N E S S E T H
WHEREAS, The Xxxx Group Incorporated and Elbe Properties entered into a
Restated General Partnership Agreement dated with effect January 13, 1986 (the
"Agreement"); and
WHEREAS, X. Xxxx was admitted as a partner and the Agreement was amended by
First Amendment To Restated Partnership Agreement dated with effect July 15,
1986 (the "First Amendment"); and
WHEREAS, the Agreement was amended by First Amendment dated January 13,
1986; Second Amendment dated December 31, 1986; Third Agreement dated December
31, 1988; Fourth Amendment dated December 31, 1988 and Fifth Amendment dated
June 1, 1990 (collectively the Agreement and all amendments shall be called the
"Partnership Agreement"); and
WHEREAS, Elbe Properties has purchased all of X. Xxxx'x interest in the
partnership and the parties hereto desire to amend the Partnership Agreement to
reflect said purchase by Elbe Properties.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. Paragraph 6 of the Partnership Agreement shall be modified to read as
follows
"6. The names and addresses of the General Partners are as follows:
Name Address
---- -------
Xxxx Hospitality, Inc. 0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Elbe Properties 0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
2. The allocation of profits, losses and cash flow provided in Paragraph
8 of the Partnership Agreement shall be modified as follows:
Xxxx Hospitality, Inc. 85.0%
Elbe Properties 15.0%
3. Other than as provided above, the Partnership Agreement shall remain
unaltered, in full force and effect.
Signed with effect on the day and year first above written.
Witnesses: XXXX HOSPITALITY, INC.
/s/ [ILLEGIBLE] /s/ XXXXX X. XXXX
-------------------- --------------------------------
/s/ [ILLEGIBLE] Xxxxx X. Xxxx, President
--------------------
/s/ [ILLEGIBLE] ELBE PROPERTIES, an Ohio
-------------------- General Partnership
/s/ [ILLEGIBLE]
-------------------- /s/ XXXXX X. XXXX
--------------------------------
Xxxxx x. Xxxx, General Partner
Withdrawing General Partner:
AGREED:
/s/ XXXX XXXX
---------------------
Xxxx Xxxx
This instrument was prepared by:
Xxxxxxx X. Xxxxxxxx, Esq.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
FIFTH AMENDMENT TO
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE
June 13, 1990
Fifth Amendment to Restated Partnership Agreement made with effect this
13th day of June, 1990 by and between Xxxx Hospitality, Inc. ("Xxxx
Hospitality"), formerly known as The Xxxx Group Management Corporation ("Xxxx
Management"), and Xxxx Xxxx ("X. Xxxx").
WITNESSETH:
WHEREAS, The Xxxx Group Incorporated and Elbe Properties entered into a
Restated General Partnership Agreement dated with effect January 13, 1986 (the
"Agreement"); and
WHEREAS, X. Xxxx was admitted as a partner and the Agreement was amended by
First Amendment To Restated Partnership Agreement dated with effect July 15,
1986 (the "First Amendment"); and
WHEREAS, the Agreement was amended by First Amendment dated January 13,
1986; Second Amendment dated December 31, 1986; Third Agreement dated December
31, 1988; and Fourth Amendment dated December 31, 1988 (collectively the
Agreement and all amendments shall be called the "Partnership Agreement"); and
WHEREAS, Xxxx Management has changed its name to Xxxx Hospitality, Inc.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. It is agreed that in all instances in the Partnership Agreement where
The Xxxx Group Management Corporation is referenced, hereinafter Xxxx
Hospitality, Inc. shall be substituted therefor.
2. Other than as provided above, the Partnership Agreement shall remain
unaltered, in full force and effect.
Signed with effect on the day and year first above written.
XXXX HOSPITALITY, INC.
By: /s/ XXXXX X. XXXX
-----------------------------
Xxxxx X. Xxxx, President
/s/ XXXX XXXX
--------------------------------
Xxxx Xxxx
FOURTH AMENDMENT
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE
December 31, 0000
Xxxxxx Xxxxxxxxx to Restated Partnership Agreement made with effect this
31st day of December, 1988 by and between Xxxx Xxxx ("X. Xxxx") and The Xxxx
Group Management Corporation ("Xxxx Management").
WITNESSETH:
WHEREAS, The Xxxx Group Incorporated and Elbe Properties entered into a
Restated General Partnership Agreement dated with effect January 13, 1986 (the
"Agreement"); and
WHEREAS, X. Xxxx was admitted as a partner and the Agreement was amended by
First Amendment To Restated Partnership Agreement dated with effect July 15,
1986 (the "First Amendment"); and
WHEREAS, Xxxx Management and The Xxxx Group Incorporated were merged and to
reflect that Xxxx Management was the successor to The Xxxx Group Incorporated,
X. Xxxx, Xxxx Management and Elbe Properties entered into a Second Amendment To
Restated Partnership Agreement dated with effect December 31, 1986 (the "Second
Amendment"); and
WHEREAS, Elbe Properties ("Elbe") distributed its partnership interests in
this Partnership to Xxxx Management, Xxxxx X. Xxxx ("X. Xxxx") and Xxxxx Xxxxxx
("Yeaggy") on December 31, 1988, and to reflect same, X. Xxxx, Xxxx Management,
X. Xxxx and Yeaggy entered into a Third Amendment to Restated Partnership
Agreement dated with effect December 31, 1988 (the "Third Amendment")
(collectively the Agreement, First Amendment, Second Agreement and Third
Amendment shall be called the "Partnership Agreement"); and
WHEREAS, effective this day, X. Xxxx and Yeaggy have contributed their
partnership interest in the Partnership to Xxxx Management; and
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. Paragraph 6 of the Partnership Agreement shall be modified to read as
follows:
"6. The names and addresses of the General Partners are as follows:
Name Address
---- -------
The Xxxx Group Management 0000 X. Xxxxxx Xxxx
Xxxxxxxxxxx Xxxxxxxxxx, Xxxx 00000
Xxxx Xxxx 0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
2. The allocation of profits, losses and cash flow provided in Paragraph 8
of the Partnership Agreement shall be modified as follows:
The Xxxx Group Management Corporation 85%
Xxxx Xxxx 15%
3. Other than as provided above, the Partnership Agreement shall remain
unaltered, in full force and effect.
Signed with effect on the day and year first above written.
THE XXXX GROUP MANAGEMENT
CORPORATION
By: /s/ XXXXX X. XXXX
-------------------------------
Xxxxx X. Xxxx, President
/s/ XXXX XXXX
----------------------------------
Xxxx Xxxx
Withdrawing General Partners:
AGREED:
/s/ XXXXX X. XXXX
---------------------------
Xxxxx X. Xxxx
/s/ XXXXX XXXXXX
---------------------------
Xxxxx Xxxxxx
2
THIRD AMENDMENT TO
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE
December 31, 1988
Third Amendment to Restated Partnership Agreement made with effect this
31st day of December, 1988 by and between Xxxx Xxxx ("X. Xxxx"), The Xxxx Group
Management Corporation ("Xxxx Management"), Xxxxx X. Xxxx ("X. Xxxx") and Xxxxx
Xxxxxx ("Yeaggy").
WITNESSETH:
WHEREAS, The Xxxx Group Incorporated and Elbe Properties entered into a
Restated General Partnership Agreement dated with effect January 13, 1986 (the
"Agreement"); and
WHEREAS, X. Xxxx was admitted as a partner and the Agreement was amended by
First Amendment To Restated Partnership Agreement dated with effect July 15,
1986 (the "First Amendment"); and
WHEREAS, Xxxx Management and The Xxxx Group Incorporated were merged and to
reflect that Xxxx Management was the successor to The Xxxx Group Incorporated,
X. Xxxx, Xxxx Management and Elbe Properties entered into a Second Amendment To
Restated Partnership Agreement dated with effect December 31, 1986 (the "Second
Amendment") (collectively the Agreement, First Amendment and Second Amendment
shall be called the "Partnership Agreement"); and
WHEREAS, Xxxx Management, X. Xxxx and Yeaggy have this day had distributed
to them from Elbe Properties ("Elbe") all of Elbe's right, title and interest in
the partnership.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. Paragraph 6 of the Partnership Agreement shall be modified to read as
follows:
"6. The names and addresses of the General Partners are as follows:
Name Address
---- -------
The Xxxx Group Management 0000 X. Xxxxxx Xxxx
Xxxxxxxxxxx Xxxxxxxxxx, Xxxx 00000
Xxxx Xxxx 0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxx Executive Court II
0000 Xxxxxxxxx Xxxx., X.X.
Xxxx Xxxxx, Xxxxxxx 00000
Xxxxx Xxxxxx 0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000".
2. The allocation of profits, losses and cash flow provided in Paragraph 8
of the Partnership Agreement shall be modified as follows:
The Xxxx Group Management Corporation 70.3%
Xxxx Xxxx 15%
Xxxxx X. Xxxx 11.025%
Xxxxx Xxxxxx 3.675%
3. Other than as provided above, the Partnership Agreement shall remain
unaltered, in full force and effect.
Signed with effect on the day and year first above written.
THE XXXX GROUP MANAGEMENT
CORPORATION
By: /s/ XXXXX X. XXXX
-------------------------------
Xxxxx X. Xxxx, President
/s/ XXXX XXXX
----------------------------------
Xxxx Xxxx
/s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx
/s/ XXXXX XXXXXX
----------------------------------
Xxxxx Xxxxxx
Withdrawing General Partner:
AGREED:
Elbe Properties
By: /s/ XXXXX X. XXXX
-------------------------------
Xxxxx X. Xxxx, duly authorized
general partner
2
SECOND AMENDMENT TO
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE
December 31, 1986
Second Amendment to Restated Partnership Agreement made with effect this
31st day of December, 1986 by and between The Xxxx Group Management Corporation
("Xxxx Management"), successor by merger to The Xxxx Group Incorporated ("Xxxx
Group"), Elbe Properties ("Elbe") and Xxxx Xxxx ("X. Xxxx").
WITNESSETH:
WHEREAS, Xxxx Group and Elbe entered into a Restated General Partnership
Agreement dated with effect June 13, 1986 (the "Agreement"); and
WHEREAS, X. Xxxx was admitted as a partner and the Agreement was amended by
First Amendment To Restated Partnership Agreement dated with effect July 15,
1986 (the "Amendment") (collectively the Agreement and Amendment shall be called
the "Partnership Agreement"); and
WHEREAS, Xxxx Group and Xxxx Management have been merged and the parties
hereto desire to amend the Partnership Agreement to reflect that Xxxx Management
is successor to Xxxx Group.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. It is agreed that in all instances in the Partnership Agreement where
The Xxxx Group Incorporated is referenced, hereinafter The Xxxx Group Management
Corporation shall be substituted therefor.
2. Other than as provided above, the Partnership Agreement shall remain
unaltered, in full force and effect.
Signed with effect on the day and year first above written.
THE XXXX GROUP MANAGEMENT
CORPORATION
By: /s/ XXXXX X. XXXX
------------------------
Xxxxx X. Xxxx, President
ELBE PROPERTIES
By: /s/ XXXXX X. XXXX
----------------------------
Xxxxx X. Xxxx, duly
authorized general partner
/s/ XXXX XXXX
--------------------------------
Xxxx Xxxx
2
ASSIGNMENT AND ASSUMPTION
December 31, 1988
WHEREAS, attached hereto as Exhibit A is a Purchase Agreement by and
between Xxxx Xxxx ("X. Xxxx") and Elbe Properties ("Elbe") (the "Purchase
Agreement"); and
WHEREAS, effective this day, Elbe did distribute to The Xxxx Group
Management Corporation ("Xxxx Management"), Xxxxx X. Xxxx ("Xxxx") and Xxxxx
Xxxxxx ("Yeaggy") all its right, title and interest in and to the partnership
known as Kings Dominion Lodge ("KDL"); and
WHEREAS, the Purchase Agreement contains certain obligations and rights of
Elbe as to X. Xxxx; and
WHEREAS, Xxxx Management, Xxxx and Yeaggy desire to assume such obligations
and obtain such rights from Elbe.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. Elbe hereby assigns and transfers to Xxxx Management, Xxxx and Yeaggy
all its rights and obligations set forth in the Purchase Agreement.
2. Xxxx Management, Xxxx and Yeaggy hereby accept such assignment and agree
to indemnify and hold Elbe harmless of and from any liability under the Purchase
Agreement.
Signed with effect the 31st day of December, 1988.
ELBE PROPERTIES
By: /s/ XXXXX X. XXXX
------------------------------
Xxxxx X. Xxxx, duly
authorized general partner
THE XXXX GROUP MANAGEMENT
CORPORATION
By: /s/ XXXXX X. XXXX
------------------------------
Xxxxx X. Xxxx, President
/s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx, Individually
/s/ XXXXX XXXXXX
----------------------------------
Xxxxx Xxxxxx, Individually
SECOND ASSIGNMENT AND ASSUMPTION
December 31, 1988
WHEREAS, Xxxx Xxxx ("X. Xxxx") and Elbe Properties ("Elbe") did enter into
a Purchase Agreement dated July 15, 1986 (the "Purchase Agreement"); and
WHEREAS, effective this day, Elbe did distribute to The Xxxx Group
Management Corporation ("Xxxx Management"), Xxxxx X. Xxxx ("Xxxx") and Xxxxx
Xxxxxx ("Yeaggy") all its right, title and interest in and to the partnership
known as Kings Dominion Lodge ("KDL"); and
WHEREAS, effective this day, Xxxx and Yeaggy did contribute to Xxxx
Management all of their right, title and interest in and to KDL; and
WHEREAS, the Purchase Agreement contains certain obligations and rights of
Xxxx and Yeaggy (as assigned from Elbe) as to X. Xxxx; and
WHEREAS, Xxxx Management desires to assume all such obligations and obtain
such rights from Xxxx and Yeaggy.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. Xxxx and Yeaggy hereby assign and transfer to Xxxx Management all their
rights and obligations set forth in the Purchase Agreement.
2. Xxxx Management hereby accepts such assignment and agrees to indemnify
and hold Xxxx and Yeaggy harmless of and from any liability under the Purchase
Agreement.
Signed with effect the 31st day of December, 1988.
THE XXXX GROUP MANAGEMENT
CORPORATION
By: /s/ XXXXX X. XXXX
------------------------------
Xxxxx X. Xxxx, President
/s/ XXXXX X. XXXX
----------------------------------
Xxxxx X. Xxxx, Individually
/s/ XXXXX XXXXXX
----------------------------------
Xxxxx Xxxxxx, Individually
FIRST AMENDMENT TO
RESTATED PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE
July 15, 1986
First Amendment to Restated Partnership Agreement made with effect this
15th day of July, 1986 by and between The Xxxx Group Incorporated ("Xxxx
Group"), Elbe Properties ("Elbe") and Xxxx Xxxx ("X. Xxxx").
WITNESSETH:
WHEREAS, Xxxx Group and Elbe entered into a Restated General Partnership
Agreement dated with effect January 13, 1986 (the "Partnership Agreement"); and
WHEREAS, Xxxx Group and Elbe desire to admit X. Xxxx as a partner in the
Partnership.
NOW, THEREFORE, in consideration of the mutual promises and premises
hereinafter set forth, the parties hereto agree as follows:
1. Paragraph 6 of the Partnership Agreement shall be modified to read as
follows:
"6. The names and addresses of the General Partners are as follows:
Name Address
---- -------
The Xxxx Group Incorporated 0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Elbe Properties 0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Xxxx Xxxx 0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000".
2. The allocation of profits, losses and cash flow provided in Paragraph 8
of the Partnership Agreement shall be modified as follows:
Xxxx Group 70%
Elbe Properties 15%
X. Xxxx 15%
3. Other than as provided above, the Partnership Agreement shall remain
unaltered, in full force and effect.
Signed with effect on the day and year first above written.
THE XXXX GROUP INCORPORATED
By: /s/ XXXXX X. XXXX
------------------------------
Xxxxx X. Xxxx, President
ELBE PROPERTIES
By: /s/ XXXXX X. XXXX
------------------------------
Xxxxx X. Xxxx, duly
authorized general partner
/s/ XXXX XXXX
---------------------------------
Xxxx Xxxx
2
PARTNERSHIP AGREEMENT
KINGS DOMINION LODGE
This Partnership Agreement, entered into this 1 day of June, 1976, by and
between KINGS DOMINION CORPORATION, a Virginia corporation (hereinafter
sometimes referred to as "Kings"), and THE XXXX GROUP INCORPORATED, a Virginia
corporation (hereinafter sometimes referred to as "Xxxx"),
W I T N E S S E T H:
WHEREAS, Kings is the owner of approximately ten (10) acres of land
adjacent to the Kings Dominion Amusement Park located north of Richmond,
Virginia (hereinafter sometimes referred to as "Real Property"); and
WHEREAS, the parties desire to enter into a Partnership Agreement for the
development and operation of a lodge on the aforesaid land;
NOW, THEREFORE, the parties hereto agree as follows:
1. The parties hereto hereby form a General Partnership composed of Kings
and Xxxx as General Partners pursuant to the General Partnership Act of the
Commonwealth of Virginia (the "Partnership").
2. The Partnership shall be conducted under the firm name and style of
"Kings Dominion Lodge." The principal place of business of the Partnership will
be Hanover County, Virginia or such other place as the General Partners may
decide.
3. The Purpose and business of the Partnership shall be:
A. to erect, construct, operate, manage, maintain and repair a lodge
of approximately two hundred fifty (250) units and a restaurant on the Real
Property in the general form and scope of the plans attached hereto as
Exhibit "A";
B. to buy, own, sell, convey, assign, mortgage or lease any personal
property necessary to the operation of the abovesaid lodge and restaurant;
C. to borrow money and issue evidences of indebtedness in furtherance
of any or all of the objectives of its business; to secure the same by
mortgage, pledge or other lien; and
D. to enter into any kind of activity and to perform and carry out
contracts of any kind necessary to, or in connection with, or incidental to
the accomplishments of the purposes of this Partnership.
4. A. The term of the Partnership shall begin as of the execution date of
this Agreement and shall continue thereafter indefinitely subject to termination
pursuant to the provisions of the Uniform Partnership Act of the Commonwealth of
Virginia and also pursuant to the termination provisions hereinafter set forth.
B. Either Partner may terminate this Agreement and this Partnership at any
time within one hundred twenty (120) days hereof upon written notice to the
other party if a written commitment for construction financing of the lodge and
restaurant has not been secured by such time by the Partnership.
-2-
5. Xxxx shall promptly prepare for execution by the two (2) Partners a
Certificate of Partnership and cause the same to be filed in accordance with
applicable law.
6. The names and addresses of the General Partners are as follows:
Name Address
---- -------
The Xxxx Group Incorporated X.X. Xxx X
Xxxxxxxxxx, Xxxx 00000
Kings Dominion Corporation X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000
7. A. Each of the Partners shall contribute to the capital of the
Partnership the following amounts:
Kings $300.00
Xxxx 700.00
---------
Total $1,000.00
The foregoing capital contributions shall be paid in cash to the Partnership by
each Partner within five (5) days after execution of this Agreement and shall be
credited to the respective capital accounts of the Partners in the amounts
shown.
B. In addition to the foregoing, Kings shall make a special contribution to
the capital of the Partnership of ten (10) acres of land, more or less, located
adjacent to the Kings Dominion Amusement Park, north of Richmond, Virginia, a
description of which is attached hereto as Exhibit "B" and made a part hereof
("Real Property"). Such special contribution to capital shall be made after a
written commitment for construction financing of the lodge and restaurant has
been obtained, as contemplated in Paragraph 4 B above, and upon such occasion as
an outside financial
-3-
source requires the placement of a first mortgage to secure such construction
financing. The conveyance as herein contemplated shall be of all of Kings rights
and interest in the Real Property. The Real Property shall be valued for
purposes of the capital account of Kings in the Partnership in the amount of
Four Hundred Twenty Thousand Dollars ($420,000).
C. The Real Property shall be transferred to the Partnership by Kings with
such title as shall be sufficient for the operations of the lodge as
contemplated herein and without material claim or material interference with
said operations by any third party. Kings represents that the Partnership may
utilize presently existing access roads now being utilized which are under the
control of the Kings Dominion Park, and further represents that the Partnership
may tap in to those water, electricity, telephone, sanitary sewer and storm
sewer facilities as presently exist in the areas abutting the Real Property,
except where prevented by governmental authority or by the particular utility
company.
D. The Partnership shall erect any and all extensions and connections
required for utilization of roads or tapping in to currently existing water,
electricity, telephone, sanitary sewer and storm sewer facilities. Any and all
fees and costs arising in connection with such utilization or tap ins shall be
an expense of the Partnership.
E. In the event that the written commitment for construction financing and
funds obtained pursuant to such commitment, as contemplated in Paragraph 4 B,
are insufficient for purposes of construction of the lodge and restaurant
contemplated in Exhibit "A", Xxxx shall loan to the Partnership
-4-
on the same interest basis and the same payment basis as the construction
financing obtained by the Partnership, sufficient funds for completion of
construction. In the event the Partnership at any time has inadequate funds
available to conduct its business operations, Xxxx shall make a non-interest
bearing loan to the Partnership of such amounts, if any, as are necessary to
insure the continued business operations of the Partnership. Loans provided in
this paragraph shall be repaid only after payment of all operating expenses,
including license fee payments provided herein to Family Leisure Centers, Inc.,
but before distribution of cash flow to the General Partners as provided in
Paragraph 9.
F. No withdrawals, or distributions, from the capital accounts (which are
those accounts arising from contribution made pursuant to Paragraphs 7 A and B
hereof) shall be made to the Partners except upon termination of the
Partnership. Until such time as the lodge is completed, any capital distribution
in the event of termination shall be in kind.
8. Contemporaneously herewith a License Agreement is being entered into
between the Partnership and Family Leisure Centers, Inc., pursuant to which the
Partnership shall obtain for the annual payment of Forty-six Thousand, Two
Hundred Dollars ($46,200) the right to utilized the name "Kings Dominion" in
connection with its lodge and restaurant operation and the referral of customers
for lodge and restaurant business.
9. The net earnings and losses of the Partnership for each fiscal year
shall be allocated seventy per cent (70%) to Xxxx and thirty per cent (30%) to
Kings. Cash flow arising with respect to each fiscal year of the Partnership
shall be distributed to the Partners on the basis of
-5-
a seventy per cent (70%) distribution to Xxxx and a thirty per cent (30%)
distribution to Kings, provided no such distributions shall be made to the
extent the operations of the Partnership's business are impaired. Distribution
shall be made from time to time with respect to each fiscal year, but not later
than one hundred twenty (120) days after the conclusion thereof. For purposes of
this Agreement, "cash flow" shall mean the operating profits of the Partnership
as determined in accordance with generally accepted accounting principles
consistently applied (and specifically including as an operating expense the
license fees contemplated in Paragraph 8) after deduction of the following to
the extent not considered operating expenses:
(1) first, all debt service charges other than service
charges to Xxxx pursuant to loans made under Paragraph 7 E;
(2) second, an amount equal to Twenty Thousand Dollars
($20,000) per year which shall be set aside as a reserve
fund each year for utilization for capital improvements; and
(3) thereafter, debt service charges to Xxxx pursuant
to loans made under Paragraph 7 E.
Operating expenses and thereafter those items described in Sections (1), (2) and
(3) above shall be paid or reserved by the Partnership in the priority set forth
with full satisfaction of operating expenses and thereafter each item in
Sections (1), (2) and (3) in the priority indicated (including unpaid accruals
from former years) before payment or reservation of the next item and before any
distribution of cash flow.
10. Xxxx shall be the Managing Partner of the Partnership and shall be
vested with the following duties:
A. to account faithfully and fully to the Partners with
respect to all property of the Partnership and to furnish to
each of the Partners from time to time accounting and
operating reports;
B. to manage the affairs of the Partnership, including
the development and operation of the
-6-
lodge, to employ, discharge and fix the compensation for all
personnel required in the conduct of the Partnership
business, and to enter into contracts for the operation of
the Partnership including, without limitation, contracts for
the day-to-day operation of the lodge and leasing of the
lodge facilities;
C. to designate those agents of the Partnership who
shall have authority to bind the Partnership with reference
to extensions of credit, bank transactions, and agreements
of any nature; and
D. to administer all labor relations matters relating
to the Partnership, to promulgate and make policy and other
decisions with respect to such labor relations, and to be
responsible for the determination of all issues, matters and
disputes which might arise between the Partnership and any
of its employees.
Xxxx'x rights as set forth in this Paragraph 10 are subject to the following
specific limitations and rights of Kings:
(1) Kings shall have the right to approve any and
all cash distributions or payments to any of the Partners;
(2) Kings shall have the right to approve any
contract or other agreement between the Partnership and any
member or any person affiliated with any Partner;
(3) Kings shall have the right to approve any
additional business purpose of the Partnership other than
that associated with operating the lodge and restaurant near
the Kings Dominion Amusement Park;
-7-
(4) Kings shall have the right to approve: (i)
general operating plans of the Partnership; (ii) quality
control standards of operation; (iii) the affiliation with
any national motel chain; (iv) general budgets for the
operations of the lodge; (v) the expenditures of any sums in
any fiscal year of the Partnership in excess of the general
budget for the year; (vi) any contracts or other instruments
for additional capital expenditures in excess of Ten
Thousand Dollars ($10,000); (vii) the sale or transfer of
any Partnership interest; (viii) the contribution of any
additional funds from any Partner to the Partnership; (ix)
all drawings, plans and specifications relating to the
construction of the lodge; and (x) any sale, transfer,
mortgage, assignment or refinancing of any Partnership
property of a value of more than Two Hundred Fifty Thousand
Dollars ($250,000);
(5) Xxxx shall not: (i) mortgage any Partnership
property that does not contain a provision requiring notice
of default to Kings and time to cure said default by Kings
after such notice; (ii) assign Partnership property in trust
for creditors or on the assignee's promise to pay the debts
of the Partnership, nor confess any judgment against the
Partnership; or (iii) commence construction of any building
on the Real Property without written approval of
-8-
the plans and specifications for such building from Kings.
11. At such place as the Partners may from time to time select there shall
be kept books of account, in which shall be entered fully and accurately each
and every transaction of the Partnership, in accordance with generally accepted
accounting principles consistently applied. All Partners shall have the right to
inspect and examine such books at all reasonable times. The books shall be
closed, balanced and audited at the end of each fiscal year. Annual audited
statements showing the Partnership profits and losses for the fiscal year and
indicating the share of profit or loss of each Partner for income tax purposes
shall be prepared and distributed to all the Partners within a reasonable time
after the close of each fiscal year.
12. The funds of the Partnership shall be deposited in a separate bank
account at a banking institution in the name of the Partnership and no funds
not belonging to the Partnership shall be commingled with funds of the
Partnership. The Partners, or their duly authorized agents, shall be authorized
to draw checks upon said account and shall arrange for the appropriate conduct
of such Partnership bank account; provided, however, that no funds shall be
withdrawn from any such account except for a purpose provided for in this
Agreement.
13. The Partnership shall be dissolved without breach of this Agreement
upon the happening of any one of the following events:
A. the decision of all of the Partners to dissolve the
Partnership;
-9-
B. a sale of the Real Property with final cash payment
received;
C. adjudication of bankruptcy or insolvency of either
Partner, an assignment by either Partner for the benefit of
creditors or attachment of a Partner's interest by a creditor,
which attachment remains unreleased for a period of thirty (30)
days.
14. Upon any event of dissolution of the Partnership specified in Paragraph
13, the Partnership business shall be terminated, its liabilities discharged,
and its property distributed as hereinafter described. A proper accounting shall
be made of the accounts of the Partnership and of each Partner thereto, and of
the Partnership net income or Partnership net losses from the date of the last
previous accounting to the date of dissolution.
In the event dissolution is a result of one of the reasons set forth in
Subparagraph 13 A or B, the Partners shall proceed to wind-up and terminate the
Partnership affairs. In the event that the termination of the Partnership is the
result of one of the reasons set forth in Subparagraph 13 C, a Liquidating
Trustee may be appointed and such Liquidating Trustee shall have all the rights,
powers and duties of the Partners in acting as the Liquidating Trustee.
A reasonable period of time shall be allowed for the orderly termination of
the Partnership's business, discharge of its liabilities and distribution of its
remaining property so as to enable the Partnership to minimize the normal losses
of the liquidation process.
-10-
Upon the dissolution or termination of the Partnership, for any reason and
by any means, the proceeds of such liquidation shall be applied and distributed
in the following order of priority:
A. the payment of debts and liabilities of the Partnership
(other than any loans or advances that may have been made by any
Partner) and to the expenses of liquidation or of the Liquidating
Trustee;
B. to the setting up of any reserves which the Partners or
Liquidating Trustee may deem reasonably necessary for any
contingent or unforeseen liabilities or obligations of the
Partnership or of the Partners, arising out of or in connection
with the Partnership;
C. to the payment of loans made by any Partner;
D. to the payment of Four Hundred Twenty Thousand Dollars
($420,000) to Kings, but which may be satisfied by a distribution
in kind of the special contribution to capital made by Kings
pursuant to Paragraph 7 B;
E. to the payment of the Partners' positive capital accounts
on the books of the Partnership (with a reduction of Kings'
capital account to reflect the distribution made pursuant to
Paragraph D above); and
F. any balance then remaining shall be distributed to the
Partners in accordance with the amounts of their respective
percentage interests in the sharing of profits of the
Partnership.
-11-
15. This Partnership Agreement shall not be construed to prevent or in any
way limit the unrestricted rights of the parties to engage in and carry on any
form or manner of other similar enterprise to that of the Partnership.
16. Each Partner may charge to the Partnership reasonable management
expenses, provided such expenses have been approved in advance by the other
Partner. Kings specifically approves management expenses to be incurred by Xxxx
to the extent and in the form attached hereto as Exhibit "C" and made a part
hereof.
17. Kings shall have the right to purchase all of Xxxx'x right, title and
interest in and to the Kings Dominion Lodge Partnership upon the occurrence of
any of the following events:
A. on or after twenty-five (25) years from the date hereof;
B. in the event a majority of the shares of Xxxx at any time
is not held by Xxxxxx X. Xxxx, Xxxxx X. Xxxx, and Xxxxx X.
Xxxxxxx, or members of their immediate family;
C. in the event the Partnership defaults on any material
obligation to a third party; or
D. in the event Xxxx defaults on any material obligation
under this Partnership Agreement.
On and after the occurrence of any event set forth above, Kings may notify Xxxx
of its desire and determination to purchase Xxxx'x interest in the Partnership.
Upon such
-12-
notification, Xxxx shall notify Kings within ninety (90) days after receipt
thereof of the price and terms of sale at which it is willing to sell its entire
Partnership interest. Within ninety (90) days after receipt of Xxxx'x offer,
Kings shall notify Xxxx of its acceptance of Xxxx'x price and terms of sale or
of a counter-proposal price and terms of sale at which Kings desires to
purchase. The parties thereafter shall engage in mutual negotiations to
determine the final purchase price and terms of sale of the Partnership
interest; provided that if they are unable to reach an agreement within ninety
(90) days after submittal of the counter-proposal by Kings, either party
thereafter may submit the questions of price and terms of sale to an independent
third arbitrator, whose determination as to price and terms of sale shall be
final and binding on all parties. The arbitrator's authority, however, shall be
limited to determining and awarding as the final price and terms of sale either
the last price and terms of sale offered by Kings or the last price and terms of
sale offered by Xxxx; the arbitrator's decision shall be determined on the basis
of which last price and terms of sale most closely approximates the fair market
value (taking into consideration the particular terms of sale) of Xxxx'x
Partnership interest. The arbitration, and proceedings relating thereto, shall
be held in accordance with the rules and regulations of the American Arbitration
Association.
In the event either Xxxx or Kings desires at any time to sell all or any
portion of its Partnership interest (but excepting from the provision hereof any
sale by Kings in connection with a sale of Kings Dominion Amusement Park by
Family Leisure Centers, Inc. or its
-13-
successors and assigns), then such party upon obtaining a prospective buyer
shall notify the other party of the name of the proposed buyer and the proposed
price and terms of sale. The second party within ninety (90) days after receipt
thereof may elect, by notice to the first party, to purchase the first party's
interest in the Partnership at the price and upon the terms of sale offered by
the outside prospective buyer. Upon such election, if any, by the second party,
the parties shall consummate the sale to the second party within ninety (90)
days after the date that notice of election to purchase is received by the first
party. If the second party does not elect to purchase the interest of the first
party, the first party may sell its interest to the prospective buyer at the
price and upon the terms of sale stipulated in the original notice to the second
party.
18. Any and all notices called for under this Partnership Agreement shall
be deemed adequately given only if in writing and sent by registered or
certified mail, postage prepaid, to the party or parties for whom such notices
are intended. All such notices, in order to be effective, shall be addressed to
the last address of record on the Partnership books.
19. This Partnership Agreement is not assignable by either party.
20. The Partnership shall be on an accrual method of accounting and its
fiscal year shall be for the period April 1st through March 31st.
21. No amendment nor modification of this Agreement shall be made except by
instrument in writing duly signed by the parties hereto.
-14-
22. As an inducement to Kings to enter into this Partnership Agreement, the
owners of Xxxx have contemporaneously herewith guaranteed the annual license fee
of Forty-six Thousand, Two Hundred Dollars ($46,200) to Family Leisure Centers,
Inc. as described in Paragraph 8 hereof. In the event any payments are made by
any of said owners in satisfaction of said guaranty and suretyship, such payment
shall be deemed a non-interest bearing loan from the particular owner or owners
to the Partnership and treated for all purposes hereof (except for identity of
the lender) as though it were a non-interest bearing loan from Xxxx to the
Partnership under Paragraph 7 E.
23. This Agreement will be construed in accordance with the laws of the
Commonwealth of Virginia.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
KINGS DOMINION CORPORATION
By /s/ XXXXXX X. XXXX
--------------------------
THE XXXX GROUP INCORPORATED
By /s/ XXXXX X. XXXX
--------------------------
As an inducement to Kings to enter into the aforesaid Agreement, the
undersigned, jointly and severally agree to the provisions of Paragraph 22
thereof.
IN WITNESS WHEREOF, the undersigned have executed this special agreement on
the day and year first above written in the aforesaid Partnership Agreement.
/s/ XXXXXX X. XXXX
------------------------------
Xxxxxx X. Xxxx
/s/ XXXXX X. XXXX
------------------------------
Xxxxx X. Xxxx
/s/ XXXXX X. XXXXXXX
------------------------------
Xxxxx X. Xxxxxxx
-15-
EXHIBIT "A"
Plans and specifications are to be agreed upon by the Partners with the
applicable documents to be initialed by appropriate representatives.
EXHIBIT B
The following is the approximate description:
All that certain lot, piece or parcel of land, together with all
improvements thereon and appurtenances thereunto belonging, lying and being
in Beaverdam District, Hanover County, Virginia, containing 10.50 acres and
more particularly described as follows:
Beginning at a point on the Eastern right of way line of Interstate Route
I-95, said point being located North 5 (degrees) 35' 38" West, 160 feet
from an iron rod on the same right of way line; thence along the Eastern
right of way line of Interstate Route I-95 North 5 (degrees) 35' 38" West,
552.15 feet to a point; thence continuing along said right of way on an arc
to the right having a length fo 241.14 feet, a radius of 1,202.34 feet and
a cord North 0 (degrees) 10' 28" West, 240.73 feet to a point; thence
continuing along said right of way North 5 (degrees) 34' 13" East; 20.79
feet to a point; thence continuing along said right of way on an arc to the
right having a length of 5.07 feet, a radius of 532.96 feet and a cord
North 5 (degrees) 50' 36: East, 5.07 feet to a point; thence along a line
due East 595.00 feet to a point; thence along a line due South 745.00 feet
to a point; thence along a line south 84 (degrees) 55'21" West, 541.45 feet
to the point of beginning.
Reference is hereby made to a plat of the property described, prepared by
Associated Engineers & Surveyors, Ltd., dated May 21, 1976 for a more
particular description.
EXHIBIT "C"
Management expenses are to be included in the operating plan to be approved
by the Partners.