EXHIBIT 10(W)
TO
FORM 10-K
OF
XXXXX REAL ESTATE FUND X, L.P.
FOR THE
FISCAL YEAR ENDED DECEMBER 31, 1998
FIRST AMENDMENT TO JOINT VENTURE AGREEMENT
OF
XXXXX/FREMONT ASSOCIATES
THIS FIRST AMENDMENT TO JOINT VENTURE AGREEMENT OF XXXXX/FREMONT ASSOCIATES
(the "First Amendment") is made and entered into as of the 8th day of October,
1998, by and among XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership having Xxxxx Real Estate Investment Trust, Inc. as general partner
("Xxxxx OP"), as Venturer, XXXXX DEVELOPMENT CORPORATION, a Georgia corporation
("Xxxxx Development"), as withdrawing Venturer, and FUND X AND FUND XI
ASSOCIATES, a Georgia joint venture comprised of Xxxxx Real Estate Fund X, L.P.
and Xxxxx Real Estate Fund XI, L.P. (the "Fund X-XI Joint Venture"), as a newly
admitted Venturer to XXXXX/FREMONT ASSOCIATES (the "Venture").
W I T N E S S E T H :
WHEREAS, Xxxxx OP and Xxxxx Development have previously formed the Venture
pursuant to the terms and provisions of that certain Joint Venture Agreement of
Xxxxx/Fremont Associates dated July 15, 1998 (the "Joint Venture Agreement");
and
WHEREAS, Xxxxx Development has, simultaneously herewith, transferred and
assigned all of its right, title and interest in and to its interest in the
Joint Venture to the Fund X-XI Joint Venture; and
WHEREAS, the parties hereto desire to amend the Joint Venture Agreement to
reflect the transfer and assignment by Xxxxx Development of its interest in the
Venture to the Fund X-XI Joint Venture and to implement and effect the admission
of the Fund X-XI Joint Venture to the Venture as a Venturer in the place of
Xxxxx Development and the withdrawal of Xxxxx Development from the Venture.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree, and the Joint Venture Agreement is hereby amended, as follows:
Admission and Withdrawal
------------------------
Fund X and Fund XI Associates, a Georgia joint venture comprised of Xxxxx
Real Estate Fund X, L.P. and Xxxxx Real Estate Fund XI, L.P. (the "Fund X-XI
Joint Venture") is hereby admitted to the Venture in the place of Xxxxx
Development. By its execution hereof, the Fund X-XI Joint Venture hereby adopts
and agrees to be bound by the terms of the Joint Venture Agreement. The Fund X-
XI Joint Venture hereby further, without limitation of the foregoing,
adopts, ratifies and confirms the provisions of Sections 6.4(d) and 6.5(e) of
the Joint Venture Agreement and the appointment of the Accepting Venturer, as
defined in the Joint Venture Agreement, as its attorney-in-fact for the purposes
and to the extent therein set forth.
By its execution hereof, Xxxxx OP hereby consents to the transfer of by
Xxxxx Development of its interest in the Venture to the Fund X-XI Joint Venture
and the admission of the Fund X-XI Joint Venture to the Venture pursuant to the
terms and provisions of this First Amendment.
Xxxxx Development Corporation hereby withdraws from the Venture and agrees
that, subsequent to the date hereof, it shall have no further right, title or
interest in or to any profits, losses, income, gain, Net Cash Flow,
Extraordinary Receipts or capital of the Venture, and no further rights, powers
or authority as a Venturer in the Venture.
Amendment to Section 3.1
------------------------
Section 3.1 of the Joint Venture Agreement is hereby amended and restated
in its entirety as follows:
"3.1 Capital Contributions. It is hereby acknowledged and agreed that
---------------------
the Venturers have made the following Capital Contributions to the Venture
and own the following Distribution Percentage Interests in the Venture,
effective October 8, 1998:
Distribution
Capital Percentage
Venturer Contribution Interest
-------- ------------ -----------
Xxxxx OP $6,978,071 78%
Fund X-XI Joint Venture $2,000,000 22%
---------- ----
Total $8,978,071 100%
The Venturers shall, from time to time, make such further Capital
Contributions to the Venture in such amounts as are mutually agreed to by
the Venturers."
Amendment to Section 8.1
------------------------
Section 8.1 of the Joint Venture Agreement is hereby amended by deleting
reference to "Xxxxx Development Corporation" and inserting in lieu thereof the
following address of the Fund X-XI Joint Venture:
Fund X and Fund XI Associates
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
RECERTIFICATION
---------------
Xxxxx OP and the Fund X-XI Joint Venture hereby adopt, ratify and recertify
the Joint Venture Agreement, except as specifically amended hereby, and the
Joint Venture Agreement shall continue and remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this First Amendment to
Joint Venture Agreement of Xxxxx/Fremont Associates under seal as of the day and
year first above written.
XXXXX OP:
--------
XXXXX OPERATING PARTNERSHIP, L.P.
A Delaware Limited Partnership
By: Xxxxx Real Estate Investment Trust, Inc.
Signed, sealed and delivered A Maryland Corporation
in the presence of: (As General Partner)
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxx X. Xxxxx, III
-------------------- ------------------------
Unofficial Witness Xxx X. Xxxxx, III
President
/s/ Xxxxxx Xxxx Xxxx
--------------------
Notary Public
[Notarial Seal]
WITHDRAWING VENTURER:
--------------------
Signed, sealed and delivered XXXXX DEVELOPMENT CORPORATION
in the presence of: A Georgia Corporation
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxx X. Xxxxx, III
-------------------- ------------------------
Unofficial Witness Xxx X. Xxxxx, III
President
/s/ Xxxxxx Xxxx Xxxx
--------------------
Notary Public
[Notarial Seal]
NEWLY ADMITTED VENTURER:
-----------------------
FUND X AND FUND XI ASSOCIATES
A Georgia Joint Venture
By: Xxxxx Real Estate Fund X, L.P.
A Georgia Limited Partnership
By: Xxxxx Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: Xxxxx Capital, Inc.
Signed, sealed and delivered A Georgia Corporation
in the presence of: (As General Partner)
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxx X. Xxxxx, III
-------------------- ---------------------
Unofficial Witness Xxx X. Xxxxx, III
President
/s/ Xxxxxx Xxxx Xxxx
--------------------
Notary Public
[Notarial Seal]
Signed, sealed and delivered
in the presence of:
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxx X. Xxxxx, III
-------------------- ---------------------
Unofficial Witness Xxx X. Xxxxx, III
(As General Partner)
/s/ Xxxxxx Xxxx Xxxx
--------------------
Notary Public
[Notarial Seal]
By: Xxxxx Real Estate Fund XI, L.P.
A Georgia Limited Partnership
By: Xxxxx Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: Xxxxx Capital, Inc.
Signed, sealed and delivered A Georgia Corporation
in the presence of: (As General Partner)
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxx X. Xxxxx, III
-------------------- ---------------------
Unofficial Witness Xxx X. Xxxxx, III
President
/s/ Xxxxxx Xxxx Xxxx
--------------------
Notary Public
[Notarial Seal]
Signed, sealed and delivered
in the presence of:
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxx X. Xxxxx, III
-------------------- ---------------------
Unofficial Witness Xxx X. Xxxxx, III
(As General Partner)
/s/ Xxxxxx Xxxx Xxxx
--------------------
Notary Public
[Notarial Seal]
