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EXHIBIT 99(i)
AMENDMENT effective as of January 1, 1997, to the Joint Venture
Agreement dated as of March 10, 1988 (the "Agreement") between ML/EQ Real
Estate Portfolio, L.P. (the "Managing Venturer") and EREIM LP Associates (the
"Equitable Venturer").
WHEREAS, the Managing Venturer and the Equitable Venturer (together,
the "Venturers") entered into the Agreement forming a joint venture (the
"Joint Venture") under the laws of the State of New York for the purposes
specified therein and to define the respective rights, interests and
obligations of the Venturers; and
WHEREAS, the Venturers now desire to amend certain provisions of the
Agreement as set forth herein;
NOW, THEREFORE, the Venturers agree as follows:
1. Terms defined in the Agreement and not defined herein shall have
the meanings assigned to them in the Agreement.
2. Defined Terms. The following defined terms shall be added to
Article One of the Agreement:
a. "Accrual Date" means, for purposes of the distribution of Sale or
Financing Proceeds to the Managing Venturer pursuant to Section 4.2A(vii), each
closing date of a purchase of BACs by BAC Holders or limited partners in the
Managing Venturer.
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b. "Adjusted Capital Contributions" means for each Fiscal Period, an
amount equal to the aggregate capital contributions made to the Managing
Venturer by the BAC Holders or limited partners in the Managing Venturer, as
reduced (but not below zero) by an amount equal to all distributions made by the
Managing Venturer to the BAC Holders and limited partners therein as a class out
of Sale or Financing Proceeds; provided, however, that capital contributions
shall not be reduced by the portion of Sale or Financing Proceeds from a Zero
Note in an amount equal to the lesser of (A) the accreted amount of the Zero
Note (in excess of the price at which the Zero Note was acquired by the Venture)
through the date of the Sale or Financing less 10% of the accreted amount on the
date the Zero Note was acquired by the Venture or (B) the unpaid Minimum Return
(as defined in the Guaranty Agreement) on the date of Sale or Financing.
c. "Guaranty Proceeds" means all cash receipts of the Managing
Venturer attributable to the Guaranty Agreement, including, without limitation,
payments received under paragraph 3 of the Guaranty Agreement.
d. "Minimum Rate" means 9-3/4%.
3. Distributions of Sale or Financing Proceeds; Distributions on
Liquidation. Section 4.2 of the Agreement is hereby amended as follows:
a. Section 4.2 (A)(vii) of the Agreement is hereby amended and
restated in its entirety as follows:
"(vii) Seventh, the balance of Sale or Financing
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Proceeds remaining after such loans are repaid in full shall be distributed to
the Venturers in accordance with their respective Percentage Interests in the
Venture; provided, however, that distributions to the Equitable Venturer under
this Section 4.2A(vii) shall be deferred, without interest, in any Fiscal
Six-Month Period to the extent necessary to enable the Managing Venturer to
receive (x) distributions of Sale or Financing Proceeds in a cumulative amount
(taking into account all prior distributions of Sale or Financing Proceeds)
equal to the capital contributions made to the Managing Venturer by the BAC
Holders or limited partners therein reduced (but not below zero) by all
Guaranty Proceeds, and (y) a further amount which, when added to all Guaranty
Proceeds (excluding Guaranty Proceeds taken into account under the preceding
clause (x)) and all amounts distributed (taking into account all prior
distributions) to the Managing Venturer pursuant to Sections 4.1(vii),
4.2A(vii) (other than clause (x) hereof) and 4.2B(vii), equals a simple annual
return at the Minimum Rate multiplied by the Adjusted Capital Contributions
from each Accrual Date through the earlier of the close of the Fiscal Period in
respect of which the distribution is being made or the sale, retirement or other
disposition of all the Mortgage Loans and Properties or the Liquidation of the
Venture other than pursuant to Section 708(b)(1)(B) of the Code. Any
distributions so deferred shall be paid to the Equitable Venturer, prior to any
further distributions of Sale or Financing Proceeds to the Managing Venturer,
in each subsequent Fiscal Six-Month Period (if any) in which there are Sale or
Financing
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Proceeds remaining for distribution under this Section 4.2A(vii) after the
Managing Venturer has received the amounts determined under the preceding
clauses (x) and (y)."
b. Section 4.2B(vii) shall be renumber as (viii), the word "Seventh"
in said subparagraph shall be deleted and replaced with the word "Eighth", and a
new subparagraph (vii) shall be inserted after subparagraph (vi), as follows:
"(vii) Seventh, to the Equitable Venturer to the extent of any Sale or
Financing Proceeds that have been deferred under Section 4.2A(vii) and remain
unpaid; and"
4. Taxable Income and Tax Loss. Section 4.3 of the Agreement is hereby
amended as follows:
a. The first sentence of Section 4.3B shall be revised to read as
follows:
"Except as provided in Sections 4.3F, 4.3G and 4.3H, all Taxable
Income for a fiscal year not arising from a Sale or Financing shall be
allocated to each Venturer, to the extent of and in proportion to the amounts of
Net Distributable Cash distributed to them for such year, including amounts
distributed under Section 4.2B(vii)."
b. Section 4.3D of the Agreement is hereby amended as follows:
(1) A new subparagraph (ii) shall be inserted after subparagraph (i),
as follows:
"(ii) Second, to each Venturer which either received or
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is to receive, under Sections 3.2A(vii) or 4.2B(vii), a distribution of the
related Sale or Financing Proceeds (if any), in proportion to and up to the
amount of such distribution:"
(2) Subparagraphs (ii) and (iii) shall be renumbered as (iii) and (iv),
respectively, and the words "Second" and "Third", respectively, in said
subparagraphs shall be revised to be "Third" and "Fourth", respectively.
Except as herein provided, the Agreement shall continue in full force
and effect.
IN WITNESS WHEREOF, the Venturers have executed this Amendment this
31st day of December, 1996, effective as of the date first above written.
ML/EQ REAL ESTATE PORTFOLIO, L.P.
By: EREIM MANAGERS CORP.,
the Managing General Partner
By:
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EREIM LP ASSOCIATES
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
a Partner
By:
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By: EREIM LP CORP., a Partner
By:
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