EXHIBIT 10.27
EIGHTH AMENDMENT TO
SECURITY LAND AND DEVELOPMENT COMPANY
LIMITED PARTNERSHIP AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
AND AMENDED AND RESTATED CERTIFICATE OF LIMITED PARTNERSHIP
THIS EIGHTH AMENDMENT TO THE AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT AND AMENDED AND RESTATED CERTIFICATE OF LIMITED
PARTNERSHIP OF SECURITY LAND AND DEVELOPMENT COMPANY LIMITED PARTNERSHIP
("Amendment") is made and entered into as of the 7th day of April, 2003, by and
among 1500 Woodlawn Limited Partnership ("Woodlawn"), a Delaware limited
partnership qualified to do business in the State of Maryland, as General
Partner, and Xxxxxxx X. Xxxxxxx ("X. Xxxxxxx"), an individual resident of the
State of Maryland, Xxxxx X. Xxxxxxx, III ("X. Xxxxxxx"), an individual resident
of the State of Maryland, W. Xxxx Xxxx ("Xxxx"), an individual resident of the
State of Florida and Regency Affiliates, Inc., a Delaware corporation
("Regency"), as Limited Partners.
WITNESSETH THAT:
WHEREAS, Security Investment Company (the "Partnership"), a Maryland
limited partnership, was formed pursuant to (i) that certain Certificate of
Limited Partnership dated November 8, 1967 and recorded on December 29, 1967
among the co-partnership records of Baltimore County, Maryland in Liber O.T.G.
No. 2, folio 45, as amended by that certain Amendment to Certificate dated March
10, 1972 and recorded March 16, 1972 among the aforesaid co-partnership records
in Liber O.T.G. No. 3, folio 471, which Amendment to Certificate provided for
the change of the name of the Partnership to Security Land and Development
Company Limited Partnership (as so amended, the "Original Certificate"), and
(ii) that certain Limited Partnership Agreement dated November 8, 1967, as
amended by amendments thereto dated November 8, 1967, July 28, 1968, December 1,
1971 and December 28, 1973 (as so amended, the "Original Partnership
Agreement");
WHEREAS, the Original Certificate and the Original Partnership
Agreement have been amended and restated pursuant to that certain Amended and
Restated Limited Partnership Agreement and Amended and Restated Certificate of
Limited Partnership dated as of November 25, 1986, and further amended by seven
(7) amendments thereto dated as of March 12, 1987, as of November 22, 1988, as
of January 1, 1989, as of August 20, 1990, as of November 17, 1994, as of
November 17, 1994 and as of June 24, 1998, respectively (as so amended and
restated and further amended, the "Partnership Agreement"); and
WHEREAS, the parties hereto desire to amend the Partnership
Agreement, among other things, to provide for the agreement of the parties in
the event that the Partnership obtains a loan meeting the Minimum Conditions (as
hereinafter defined) (such loan meeting the Minimum Conditions being hereinafter
referred to as the "New Loan").
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The Capital Account of each Partner as of December 31, 2001, as
reflected in the Partnership Federal tax return for the period then ended, is as
shown on Exhibit C hereto and the Partners agree that such Capital Account
balances shall be controlling as to the application of Section 10.01(a), subject
only to such adjustments to such Capital Accounts as are made to reflect the
allocations and distributions provided for by the terms of the Partnership
Agreement for periods from and after January 1, 2002. Exhibit C to the
Partnership Agreement is hereby deleted in its entirety, and Exhibit C hereto is
hereby substituted therefor. The debts and liabilities of the Partnership as of
the date hereof to any Partner or any Affiliate are as shown on Exhibit D
hereto. Woodlawn agrees that any new agreement for services with any Partner or
Affiliate will be at market rates.
2. Effective immediately upon consummation of the New Loan (the date
of consummation of the New Loan being hereinafter referred to as the "Effective
Date"), the first two sentences of Section 9.01 of the Partnership Agreement are
hereby amended and restated in their entirety to read as follows:
"All operating profits and losses of the Partnership for the period
from the Effective Date to the last day of the first calendar month as of which
the aggregate Net Cash Flow distributions made and to be made (by not later than
90 days thereafter) to Regency under Section 9.01(d) shall equal the sum of Two
Million Dollars ($2,000,000), shall be allocated ninety-five percent (95%) to
Regency and five percent (5%) to the other Partners (the "Class A Partners").
Thereafter, all operating profits and losses of the Partnership shall be
allocated forty eight and 969/1000 percent (48.969%) to Regency and fifty one
and 31/1000 percent (51.031%) to the Class A Partners as a group."
3. The Partnership Agreement is hereby amended to delete Sections
9.01(c) and 9.05 in their entirety.
4. Effective immediately upon consummation of the New Loan, Section
9.01(d) of the Partnership Agreement is hereby amended and restated in its
entirety to read as follows:
"(d) All Net Cash Flow of the Partnership for the period from and
after the Effective Date shall be distributed ninety-five percent (95%) to
Regency and five percent (5%) to the Class A Partners as a group until Regency
shall have received from such distributions the aggregate sum of Two Million
Dollars ($2,000,000). Thereafter, all Net Cash Flow of the
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Partnership shall be distributed forty eight and 969/1000 percent (48.969%) to
Regency and fifty one and 31/1000 percent (51.031%) to the Class A Partners as a
group. Net Cash Flow available for distribution to the Class A Partners in
accordance with this Section 9.01(d) shall be made first to repay any loans made
by the Class A Partners to the Partnership and second according to their
respective Interests as indicated in Exhibit A. Woodlawn shall timely provide
Regency such information as Regency may reasonably request with respect to the
timing of receipt, calculation and distribution of Net Cash Flow of the
Partnership.
5. Effective immediately upon consummation of the New Loan, the
first sentence of Section 10.01(a) of the Partnership Agreement up to clause (i)
thereof is hereby amended and restated in its entirety to read as follows:
"10.01(a) The net proceeds resulting from the liquidation of the
Partnership's assets pursuant to Article XVII, and the net proceeds resulting
from any sale of a capital asset of the Partnership (collectively, the "Sale
Proceeds"), shall be distributed and applied in the following order of
priority:"
6. Effective immediately upon consummation of the New Loan, the
Partnership Agreement is hereby amended to add a new Section 10.01(b) thereto,
to read in its entirety as follows:
"10.01(b) The net proceeds resulting from the refinancing of the
Property (after deducting therefrom the costs and expenses of such refinancing,
including without limitation all prepayment penalties and financing fees) (the
"Refinancing Proceeds") shall be distributed and applied in the following order
of priority:
(i) First, to the payment of debts and liabilities of the
Partnership (other than any loans or other debts and liabilities of the
Partnership to the Partners or any Affiliates);
(ii) Second, to the setting up of any reserves that the
Managing General Partner deems reasonably necessary for contingent, unmatured or
unforeseen liabilities or obligations of the Partnership (including without
limitation reserves for tenant improvements);
(iii) Third, to the payment of debts and liabilities of the
Partnership to any Partner or any Affiliate; and
(iv) Fourth, forty eight and 969/1000 percent (48.969%) to
Regency and fifty one and 31/1000 percent (51.031%) to the Class A Partners pro
rata in accordance with their respective Interests as indicated in Exhibit A."
7. Effective immediately upon consummation of the New Loan, Section
10.02 of the Partnership Agreement is hereby amended and restated in its
entirety to read as follows:
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"10.02 Gains and losses recognized by the Partnership upon the sale,
exchange, liquidation or other disposition of any capital asset of the
Partnership shall be allocated in the following manner:
(a) All gains (including gains treated as ordinary income for
federal income tax purposes), but not losses, shall be allocated as follows:
(i) First, to the Partners who have negative Capital
Account balances in proportion to such balances, provided that no gains shall be
allocated to a Partner under this Section 10.02(a)(i) once such Partner's
Capital Account balance is brought to zero;
(ii) Second, to the Partners so as to cause (as nearly
as possible) their Capital Accounts to be in the same ratios as the percentages
set forth in Section 10.01(b)(iv); and
(iii) Thereafter, forty eight and 969/1000 percent
(48.969%) to Regency and fifty one and 31/1000 percent (51.031%) to the Class A
Partners pro rata in accordance with their respective Interests as indicated in
Exhibit A.
(b) All losses shall be allocated as follows:
(i) First, to the Partners in proportion to, and to the
extent of, their positive Capital Accounts; and
(ii) Thereafter, forty eight and 969/1000 percent
(48.969%) to Regency and fifty one and 31/1000 percent (51.031%) to the Class A
Partners pro rata in accordance with their respective Interests as indicated in
Exhibit A.
(c) No Limited Partner shall be required to make any
contributions to the Partnership of any negative Capital Account balance, nor
shall any General Partner be so required, except as otherwise provided by law."
8. Each Partner hereby represents and warrants to the other Partners
as follows:
(a) Such Partner (if an entity) is an entity of the type
described in the first paragraph of this Amendment, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, as stated in the first paragraph of this Amendment. Such Partner
has the full and unrestricted power and authority to enter into and perform the
terms of this Amendment.
(b) The execution, delivery and performance of this Amendment
have been duly and validly authorized by all necessary action of the board of
directors (or comparable governing entity) of such Partner (if an entity) and by
any other necessary actions, corporate, partnership, shareholder, partner or
otherwise, of such Partner (none of which actions has been
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modified or rescinded and all of which actions are in full force and effect).
This Amendment constitutes a valid and binding agreement and obligation of such
Partner, enforceable in accordance with its terms. Assuming payoff of the KBC
Loan, the execution, delivery and performance by such Partner of this Amendment
will not require the consent, approval or authorization of any person, entity or
Governmental Authority (as hereinafter defined), including without limitation
any shareholders or partners, as the case may be, of such Partner. For purposes
of this Amendment, the term "Governmental Authority" means any agency, board,
bureau, court, commission, department, instrumentality, or administration of the
United States government, any state government or any local or other
governmental body in a state, territory or possession of the United States or
the District of Columbia.
(c) There is no action, suit, investigation, claim,
arbitration or litigation pending or, so far as such Partner knows, threatened
against, affecting or involving such Partner, or the transactions contemplated
by this Amendment, at law or in equity, or before or by any court, arbitrator or
Governmental Authority, and such Partner is not operating under or subject to
any order, award, judgment, decree or injunction of any court, arbitrator or
Governmental Authority.
(d) The execution and delivery of this Amendment, the
fulfillment of and the compliance with the terms and provisions of this
Amendment, do not and will not conflict with, violate or require any consent,
permit, authorization, approval, waiver, notice or filing under any law,
ordinance, regulation, order, award, judgment, injunction or decree applicable
to such Partner, or conflict with, violate, or result in a breach of,
termination of, or constitute a default under any of the terms, conditions or
provisions of such Partner's charter, bylaws, partnership agreement or
comparable organizational documents, or, assuming payoff of the KBC Loan, any
contract, agreement, mortgage, note, bond, indenture, lease, commitment,
arrangement or understanding to which such Partner is a party or by which such
Partner is bound.
Each Class A Partner acknowledges that Regency and certain of its
Affiliates are defendants in the action styled Xxxx, xx.xx. x. Xxxxxxxx, xx.xx.,
Case No. 4:02-cv-03113 currently pending in the United States District Court for
the District of Nebraska (the "Nebraska Action"), and each such Partner agrees
that the sole and exclusive remedy of the Class A Partners and the Partnership
with respect to any breach by Regency of the representations and warranties in
this Section 7, or the inability of Regency to perform or be bound by this
Amendment, that arises out of or results from or in connection with the Nebraska
Action, shall be to terminate this Amendment.
Subject to the foregoing, the representations and warranties in this
Section 7 shall survive execution and delivery of this Amendment and shall not
be limited or qualified by any investigation or inquiry performed by any
Partner.
9. "Minimum Conditions" means a loan, the net proceeds of which are
available to be distributed by the Partnership to the Partners pursuant to the
provisions of Section
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10.01(b) of the Partnership Agreement (as amended hereby) on or prior to August
5, 2003 and which, when so distributed, will result in a distribution to Regency
of not less than Thirty Nine Million Dollars ($39,000,000) (inclusive of amounts
which would be required to be paid by the Partnership on Regency's behalf in
respect of the KBC Loan). For the avoidance of doubt, the net proceeds of the
New Loan shall be distributed in accordance with the provisions of Section
10.01(b) of the Partnership Agreement (as amended hereby) promptly following
consummation of the New Loan. In the event that the Partnership does not obtain
the New Loan on or prior to August 5, 2003, this Amendment shall be deemed null,
void and of no further force or effect and the terms of the Partnership
Agreement (without giving effect to this Amendment) shall continue in full force
and effect.
Woodlawn shall timely provide Regency such information as Regency
may reasonably request with respect to the timing, structure, negotiations and
terms of any new loan to the Partnership, including any new loan intended to
qualify as the New Loan.
10. Provided that the New Loan is consummated, commencing on the
fifteenth (15th) day of the second calendar month following the receipt by
Regency of the $2,000,000 referred to in Section 9.01(d) of the Partnership
Agreement, and on the fifteenth (15th) day of each calendar month thereafter
until the earlier of (a) October 31, 2018 and (b) the sale by the Partnership of
the Property, the Partnership shall pay Regency an asset management fee of
$15,000 (the "Asset Management Fee"), provided, however, that to the extent, as
of the date any payment of the Asset Management Fee is due, the Partnership had
Net Cash Flow in the immediately preceding calendar month (without making any
deduction therefrom for any Asset Management Fee paid in such month) less than
the Asset Management Fee then payable, the amount of any shortfall shall not be
payable, but shall accrue and be payable together with interest thereon at a
rate of 8% per annum, in any subsequent month to the extent that the Partnership
had Net Cash Flow for the immediately preceding calendar month in excess of the
Asset Management Fee then payable. In the event of a sale of the Property prior
to October 31, 2018, any unpaid Asset Management Fee for the period from the
date of sale of the Property through October 31, 2018 will be accelerated and
paid by the Partnership at closing of the sale, discounted at the rate of 8% per
annum.
For purposes of calculating the Net Cash Flow available for
distribution under Section 9.01(d) of the Agreement, all Asset Management Fee
payments shall be deemed expenses of the Partnership.
11. The Partners hereby ratify and/or approve, as applicable, the
receipt by the parties indicated on Schedule A attached hereto of the fees and
other compensation described on Exhibit E attached hereto in connection with the
Partnership entering into any New Loan.
12. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original copy and all of which together shall
constitute one original agreement binding on all parties hereto, notwithstanding
that all the parties shall not have signed the said counterpart.
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13. This Amendment shall be governed in all respects by the laws of
the State of Maryland (but not including the choice of law rules thereof).
14. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to them in the Partnership Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed this
Amendment, or has caused this Amendment to be duly executed on its behalf, as of
the day and year first above written.
GENERAL PARTNER:
1500 WOODLAWN LIMITED
PARTNERSHIP
WITNESS: By: Woodlawn Investment Group, Inc.,
its managing general partner
By:
---------------------------- -----------------------------
Name: Xxxxxx Xxxxxxx
Title: President
WITNESS: LIMITED PARTNERS:
---------------------------- -------------------------------------
XXXXX X. XXXXXXX, III
WITNESS:
---------------------------- -------------------------------------
XXXXXXX X. XXXXXXX
WITNESS:
---------------------------- -------------------------------------
W. XXXX XXXX
WITNESS: REGENCY AFFILIATES, INC.
By:
---------------------------- ---------------------------------
Name:
-------------------------------
Title:
------------------------------
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Exhibit E
Approved Fees Related to a New Loan
Xxxxx Peer Management Fee $2,936,994
Fee previously approved by the
Partnership and dated September 15, 1998
to be paid to Peer at closing of a New
Loan for services provided by Peer to
manage the leasing/financing process.
Cafritz Leasing Fee $3,826,069
Fee to be paid at closing of a New Loan
to a Cafritz Affiliate in the amount of
2% of the gross rent over the term of
the lease.
Cafritz Financing Fee
Fee to be paid at closing of a New Loan
to a Cafritz Affiliate in the amount of
.5% of the gross amount of the New Loan.
Project Controller
Compensation
Fee to be paid at closing of a New Loan
to Xxxx Fives as project controller in
the amount of .4% of the gross amount of
the New Loan.
Project Manager
Compensation
Fee to be paid at closing of a New Loan
to Xxxx Xxxxxx as project manager in the
amount of .4% of the gross amount of the
New Loan.
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EXHIBIT A
SCHEDULE OF PARTNERS, ALLOCATIONS AND DISTRIBUTIONS
CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
ALLOCATIONS AND DISTRIBUTIONS OF PROFITS
AND LOSSES*
------------------------------------------
PERCENTAGE
After After INTEREST OF
Eighth Priority CLASS A CAPITAL
Distribution
NAME AND ADDRESS 12/31/2002 Amendment of $2M PARTNERS CONTRIBUTIONS
------------------------------------ ---------- ---------- ------------- ----------- --------------
Regency Affiliates, Inc. 95.00000% 95.00000% 48.96900% N/A $ 350,000.00
000 X.X Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx, XX 00000
1500 Woodlawn Limited Partnership 4.04040% 4.04040% 41.23716% 80.80808% $ 1,500,080.00
c/o Woodlawn Investment Group, Inc.
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Peer
Xxxxxxx X Xxxxxxx 0.35895% 0.35895% 3.67269% 7.19697% $ 7.50
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxx, III 0.35895% 0.35895% 3.67269% 7.19697% $ 7.50
0000 Xxxxxxxxxx Xxxx, #000
Xxxxxxxxx, XX 00000
W. Xxxx Xxxx 0.23990% 0.23990% 2.44846% 4.79798% $ 5.00
0 Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
---------- ---------- ----------- ----------- --------------
100.00% 100.00% 100.00% 100.00% $ 1,850,100.00
=========== ========== =========== =========== ==============
* These percentages apply to Section 9.01 and 9.01(d).
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EXHIBIT C
CAPITAL ACCOUNTS AS OF
December 31, 2001
Regency Affiliates, Inc. 37,847,856
1500 Woodlawn Limited Partnership (2,467,113)
Xxxxxxx X Xxxxxxx (1,789,637)
Xxxxx X. Xxxxxxx, III (1,789,638)
W. Xxxx Xxxx (848,199)
Note - a number in parentheses indicates a negative capital account amount.
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EXHIBIT D
DEBTS AND LIABILITIES OF THE PARTNERSHIP TO ANY PARTNER OR ANY AFFILIATE
TCG Management Corporation Maximum of two months Management Fee at
$25,806.00 per month if not previously
paid.
Woodlawn Service Corporation Maximum of two months March Janitorial
Fee and SLDC Payroll at approximately
$150,000 per month if not previously
paid.
Cafritz Interests, Inc. Maximum of two months Project Manager
Reimbursement at $8,235.86 per month if
not previously paid.
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