EXHIBIT 10.8a
FIRST AMENDMENT
TO
CONTRIBUTION AGREEMENT
This First Amendment (the "First Amendment") to that certain Contribution
Agreement relating to the capitalization of Mar Mar Realty Trust by and among
Mar Mar Realty Trust, Mar Mar Realty L.P. and various contributors identified
therein dated as of July 9, 1998 (the "Contribution Agreement") is made and
entered into as of October 23, 1998 by and among Mar Mar Realty Trust (the
"Company"), Mar Mar Realty L.P. (the "Partnership"), O. Xxxxxx Xxxxx and Sonic
Financial Corporation ("Sonic"). Capitalized terms not defined in this First
Amendment are used as defined in the Contribution Agreement.
WHEREAS, Xx. Xxxxx and Sonic are in the process of restructuring ownership
of the Title Holding Partnerships which hold the Real Property being contributed
by each of them pursuant to the Contribution Agreement;
WHEREAS, Town and Country Ford, Inc. no longer holds any interests in the
Title Holding Partnership previously being contributed by it pursuant to the
Contribution Agreement;
WHEREAS, pursuant to the authority contained in Section 14.5 of the
Contribution Agreement, the Company, the Partnership, Xx. Xxxxx and Sonic desire
to amend the Contribution Agreement as set forth in this First Amendment as it
relates to them;
WHEREAS, the Company is in the process of reorganizing its capital
structure;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree that the Contribution Agreement is hereby amended as follows:
1. The definition of Permitted Exceptions contained in Section 1.1 of the
Contribution Agreement is amended and restated as follows:
"Permitted Exceptions" means (a) those exceptions contained on
Schedule "B" of the title policy currently held by the applicable
Contributor or Title Holding Partnership, a list of which title policies
is set forth on Schedule 1.3 (excluding Liens securing or evidencing
indebtedness other than Assumed Mortgage Debt), (b) such additional
encumbrances as do not adversely affect the use, value or marketability of
the Property affected thereby, (c) those additional matters that may be
specifically approved in writing by the Company (which approval shall not
be unreasonably withheld), (d) the Leases, (e) Liens for taxes which are
not yet due and payable and (f) Liens evidencing or securing Assumed
Mortgage Debt to the extent and in the manner such Liens are in existence
on the date hereof or for which consent is given by the Company and the
Partnership pursuant to Section 3.6 of this Agreement and which, upon such
consent, is added to Schedule 1.2.
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2. The definition of Title Holding Partnership contained in Section 1.1 of
the Contribution Agreement is amended and restated as follows:
"Title Holding Partnership" means an entity holding title to a
property which is organized under state law as a general or limited
partnership or limited liability company and is treated as a partnership
for U.S. federal income tax purposes and not as an association taxable as
a corporation.
3. Paragraphs (a) and (b) of Section 4.11 of the Contribution Agreement
are amended and restated as follows:
(a) The outstanding partnership, or other ownership, interests in each
Title Holding Partnership listed on Schedule 2.4 are owned by the Contributors
thereof as shown on Schedule 2.4, free and clear of all Liens. Each Partnership
Interest Contributor owns the partnership, or other ownership, interest in the
Title Holding Partnership shown as owned by it on Schedule 2.4, free and clear
of all Liens. Each Contributor and Title Holding Partnership has good and
marketable or indefeasible title to each Real Property shown as owned by it on
Exhibit A, free and clear of all Liens other than Permitted Exceptions.
(b) The partnership, or other ownership, interest owned by each
Partnership Interest Contributor in each Title Holding Partnership shown as
owned by it on Schedule 2.4 were validly issued, fully paid and non-assessable,
and, together with the partnership, or other ownership, interest of any other
Partnership Interest Contributor shown on Schedule 2.4 as owning a partnership,
or other ownership, interest in such Title Holding Partnership, constitutes all
of the issued and outstanding partnership, or other ownership, interests of such
Title Holding Partnership; all such partnership, or other ownership, interests
were not issued in violation of any preemptive rights. The partnership, or other
ownership, interests owned by each Partnership Interest Contributor in such
Title Holding Partnership were issued in compliance with applicable law and the
relevant organizational documents (as then in effect). There are no enforceable
rights, subscriptions, warrants, options, conversion rights, preemptive rights
or agreements of any kind outstanding to purchase or to otherwise acquire any of
the interests in any Title Holding Partnership or any securities or obligations
of any kind convertible into any interests in any Title Holding Partnership or
other equity interests or profit participations of any kind.
4. Paragraph (a)(vi) of Section 4.16 of the Contribution Agreement is
amended and restated as follows:
(vi) The general partner, or other manager, of each Title Holding
Partnership shall be responsible for filing the final Tax Return for 1998
for each of the respective Title Holding Partnerships;
5. Town and Country Ford, Inc. is hereby deleted as a party to the
Contribution Agreement since it is no longer holds any interests in a Title
Holding Partnership and thereby is
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deleted from the definition of Contributor contained in the preamble to the
Contribution Agreement.
6. Attached hereto are the following amended and restated exhibits and
schedules to the Contribution Agreement:
EXHIBITS
N - Title Holding Partnerships Tax Returns
SCHEDULES
A - Properties, Descriptions and Contribution Amounts per
Contributor
1.2 - Assumed Mortgage Debt
1.3 - Current Title Policies
2.4 - Partnership Interest Contributors and Title Holding
Partnerships
4.5 - Service Contracts, TI Contracts and Repair Contracts
4.9 - Environmental Reports
10.1 - Contributor Maintenance Obligations
11.3 - Leasing Commissions
X - Disclosures
7. References in the form of Amended and Restated Agreement of Limited
Partnership of Mar Mar Realty L.P. to Class B Units shall be amended to refer to
Class C Units.
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IN WITNESS WHEREOF, the parties hereto have caused this Contribution
Agreement to be duly executed on their behalf as of the date first above
written.
MAR MAR REALTY TRUST
By:
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Name: Xxxxxxxx X. Xxxxx
Title: President
MAR MAR REALTY L.P.
By: MAR MAR REALTY TRUST, its general partner
By:
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Name: Xxxxxxxx X. Xxxxx
Title: President
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CONTRIBUTORS:
SONIC FINANCIAL CORPORATION
address:
Attention:
Facsimile No.:
By:
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Name:
Title:
O. XXXXXX XXXXX
address:
Facsimile No.:
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