Exhibit 10(g)
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FIFTH AMENDMENT TO AGREEMENT
OF LIMITED PARTNERSHIP OF BT ORLANDO LIMITED PARTNERSHIP
This Fifth Amendment to Agreement ("Amendment") is made and entered
into as of August 11, 1999 by and between BEF, Inc., a Tennessee corporation
("BEF"), Xxxxxxxx-Xxxxx Industries, a Delaware corporation ("Xxxxxxxx"), BT
Partnership, a Tennessee general partnership ("BT") and EST Orlando Ltd., a
Florida limited partnership ("EST").
R E C I T A L S
X. XXXX, Xxxxxxxx, XX and EST, as of May 20, 1996, entered into that
certain Agreement of Limited Partnership of BT Orlando Limited Partnership (the
"Original Partnership Agreement"). BEFI, Brennand, BT and EST, as of July __,
1996, entered into that certain First Amendment to Agreement of Limited
Partnership of BT Orlando Limited Partnership (the "First Amendment"); as of May
20, 1998, entered into that certain Second Amendment to Agreement of Limited
Partnership of BT Orlando Limited Partnership (the "Second Amendment"); as of
December 31, 1998 entered into that certain Third Amendment to Agreement of
Limited Partnership of BT Orlando Limited Partnership (the "Third Amendment");
and as of June 30, 1999 entered into that certain Fourth Amendment to Agreement
of Limited Partnership of BT Orlando Limited Partnership (the "Fourth
Amendment"). The Original Partnership Agreement, First Amendment, Second
Amendment, Third Amendment and Fourth Amendment are hereafter referred to as the
"Partnership Agreement".
B. The Partnership has entered into a construction loan commitment
letter with Bank of America dated July 14, 1999 (the "Commitment Letter"). The
Commitment Letter provides for two loans denominated as "Loan A" (for
$18,000,000.00) and "Loan B" (for $22,000,000). These loans are sometimes
referred to herein as the "Construction Loan". Under the Commitment Letter, the
Project is effectively divided in two parts; "Phase I-A" (which is the
approximately 261,000 square feet of retail and entertainment space to be
anchored by Bass Pro Shops, Cinemark Cinemas and Sea Life Restaurant) and "Phase
I-B" (which is the remaining retail and entertainment space to be contained
within the planned Festival Bay Shopping Center, containing not less than
340,000 square feet, also known as the "Project"). The Commitment Letter
provides for the property securing the Construction Loan to include the
approximately 78 acres of land which is not governed by the terms of the
Partnership Agreement and not a part thereof; rather, such 78 acres were
intended to be the subject of a second partnership agreement known as the "Phase
II Partnership".
X. XXXX, Xxxxxxxx, XX and EST desire to amend certain provisions of the
Partnership Agreement in order to accurately provide for the intent of the
parties in light of the Construction Loan and the Commitment Letter.
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements hereinafter set forth, the parties hereto agree as follows:
A G R E E M E N T
1. Section 2.2. Section 2.2 ("Place of Business") is amended in its
entirety as follows:
The principal office of the Partnership shall be located at
000 Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxx 00000, or at such other
substituted or additional places of business in the State of Tennessee or
elsewhere as may be designated by the General Partners.
2. Section 3.5. Section 3.5 ("Capital Contributions") is amended to add
the following sentence at the end of such section:
Xxxxxxxx shall cause Thackeray Corporation ("Thackeray"),
simultaneous with closing of the Construction Loan, to mortgage the
approximately 78 acres of "Phase II" land in favor of the lenders as set forth
under the Commitment Letter. Such mortgage shall not constitute a Capital
Contribution by either Xxxxxxxx or Xxxxxxxxx for purposes of the Partnership
Agreement.
3. Section 3.7. Section 3.7 is amended by adding the following language
to the end of such section:
From the date of Construction Loan closing (as envisioned by
the Commitment Letter) until March 31, 2000, the Preferred Partnership Capital
of Xxxxxxxx shall (solely for the purpose of computing Xxxxxxxx'x Cumulative
Preferred Return) be an amount equal to eighteen (18%) percent of the amount
otherwise defined under the Partnership Agreement.
From March 31, 2000 forward, if a "take out" loan for Phase
I-B referenced above is not closed, the Preferred Partnership Capital for
Xxxxxxxx shall (solely for the purpose of computing Xxxxxxxx'x Cumulative
Preferred Return) be an amount equal to forty (40%) percent of the amount
otherwise defined under the Partnership Agreement.
If, at any time before or after March 31, 2000, the "take out"
loan for Phase I-B is closed, then at such time, the Preferred Partnership
Capital for Xxxxxxxx shall (solely for the purpose of computing Xxxxxxxx'x
Cumulative Preferred Return) be an amount equal to one hundred (100%) percent of
the amount otherwise defined under the Partnership Agreement.
The foregoing provisions of this Section 3.7 shall apply
exclusively to the determination and computation of the amount of Xxxxxxxx'x
Cumulative Preferred Return under the Partnership Agreement; the amount of
Xxxxxxxx'x Preferred Partnership Capital shall (for all other purposes under the
Partnership Agreement) be defined as provided under the Partnership Agreement
disregarding the foregoing provisions of this Section 3.7.
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4. Section 4.3(a). Section 4.3(a) is amended by adding the following
language at the end of such section:
In the event payments are made by or on behalf of any Partner
in order to satisfy the outstanding principal indebtedness of (or any portion or
portions thereof) Loan A or B upon maturity, payment of such amounts shall be
governed by Section 4.3(a) of the Partnership Agreement, as amended hereby, as
though such payments were made pursuant to guarantees of such indebtedness. For
purposes of the foregoing, in the event all or any portion of the approximately
78 acres of "Phase II" land is taken by the lender in full or partial
satisfaction of Loan A or B (either by foreclosure, deed in lieu of foreclosure
or otherwise), such event shall constitute a payment made by or on behalf of
Xxxxxxxx in the amount of the fair market value of the Phase II acreage so
taken. In such event, the fair market value of such 78 acres (or portion
thereof) shall be determined in the same manner as set forth below in this
Section 4.3(a) pertaining to determination of fair market value (that is, as
agreed between BEFI and Xxxxxxxx, or if they do not agree, by real estate
appraisers as set forth below).
In the event Section 4.3(a) becomes operative due to payments
being made attributable to guarantees of Partnership indebtedness, the
indemnification/contribution obligations set forth herein shall not become
operative if each Partner pays it pro rata share of the amounts referenced
therein.
In the event the indemnification/contribution obligation set
forth herein become operative, then with respect to the "Excess Share" of any
Partner, such Excess Share shall be treated (for purposes of computing the
amount repayable hereunder) as a loan by such Partner, bearing interest
(cumulative but not compounded) at the rate of 9% per annum.
The parties agree that the obligation of Xxxxxxxx and
Thackeray (Thackeray's obligation as set forth in that certain Agreement dated
as of May 20, 1996 by and between Xxxx Investco L.P. and Thackeray) to pay cash
under Section 4.3(a) is limited to an amount which, after such payment, leaves
Thackeray with $1,500,000.00 of cash (the "$1.5 million Limit"). In the event
Xxxxxxxx and Xxxxxxxxx do not fully satisfy their indemnification/contribution
obligation under Section 4.3(a) with a cash payment due to the foregoing limit,
then the parties agree as follows:
(i) The parties shall have the right, on mutually agreeable
terms, for a period of one year commencing with payment giving rise to the
indemnification/contribution obligation of Xxxxxxxx and Thackeray, to attempt to
sell the property comprised of Phase I-A and I-B. In the event of such sale, the
first proceeds therefrom shall be distributed to the Partners in such manner so
as to satisfy the indemnification/contribution obligations of the Partners under
Section 4.3(a). Thereafter, any remaining proceeds from such sale shall be
distributed as set forth in the Partnership Agreement.
(ii) If, after the expiration of the one year period
referenced above, the parties cannot agree on mutually agreeable terms on which
to sell the above-referenced property, BEFI shall have the right, for a period
of one year commencing after expiration of the one year period
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referenced in (a) above, to attempt to sell the property comprised of Phase I-A
and I-B for an amount not less than ninety (90%) percent of such property's fair
market value.
The term "fair market value" shall mean the highest and best
use of the property, as improved to the date of determination of such value,
with neither buyer or seller being under any compulsion to either purchase or
sell the property, with such value determined as though the property was clear
of all liens and encumbrances.
The fair market value of the above-referenced property shall
be determined as follows. First, BEFI and Xxxxxxxx may agree as to the fair
market value of the property. If BEFI and Xxxxxxxx do not so agree, then each
shall engage the services of a certified real property appraiser familiar with
the Orlando, Florida real estate market ("Appraiser") to determine the fair
market value of the property. If the appraised fair market values as determined
by the two Appraisers are within ten (10%) percent, then the average of such two
values shall be the fair market value of the property. If the appraised fair
market values of the two Appraisers are not within ten (10%) percent of each
other, then the two Appraisers shall engage the services of a third Appraiser to
determine the fair market value of the property. If the value of the property as
determined by the third Appraiser is between the determinations of value as set
forth by the first two Appraiser, then the determination of value by the third
Appraiser shall be conclusive; if the determination of value by the third
Appraiser is not between the values as determined by the first two Appraisers,
then the average of the values determined by the three Appraisers shall
conclusively be the fair market value of the property.
(iii) If, after the expiration of the one-year periods
referenced above in (i) and (ii), the parties are unable to sell the property
comprised of Phases I-A and I-B, the parties shall then (and only then) be
entitled to fully enforce their indemnity rights under Section 4.3(a) of the
Partnership Agreement. In such instance, the $1.5 million Limit shall not be
applicable. In enforcing such rights, the parties agree that the restrictions
imposed by the Partnership Agreement applicable to sales or other transfers of
interests in the Partnership shall not operate so as to restrict the rights of
enforcement hereunder. To the extent legally permissible, the parties agree that
enforcement of indemnity or contribution rights hereunder shall include the
right to proceed directly against interests in the Partnership held by the
parties, and to the maximum extent permissible under applicable law, include the
right to foreclose upon and acquire the interest of a party in the Partnership.
(iv) If, at the end of either of the one-year periods
referenced above, a binding contract (subject to normal closing conditions and
providing for closing within a reasonable period of time) to sell the property
referenced above is in place, then the one-year period referenced in (i) or (ii)
above shall be extended until the date of closing under such binding contract.
Xxxxxxxx agrees that, until such time as it fully satisfies
its indemnification/contribution obligation referenced herein, that neither
Xxxxxxxx nor Xxxxxxxxx shall permit the sale or encumbrance (except as
contemplated in the Commitment Letter) of any portion of the 78 acres comprising
the Phase II property, unless as part of such transaction the
indemnification/contribution obligation of Xxxxxxxx hereunder is fully
satisfied.
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Upon maturity of Loan B (as such loan may be extended with the
consent of the lender), if the Partnership has not secured replacement financing
for such loan (either to renew such loan as a land loan, or to repay such loan
as part of a construction loan for development of Phase I- B), Xxxxxxxx may (in
its sole discretion) require either of (i) or (ii) below to occur:
(i) At Xxxxxxxx'x request, each of the parties shall cause to
be paid to the lender, in full satisfaction of Loan B, its proportionate share
of the outstanding balance thereof determined by reference to the number of
Units owned by each party in the Partnership. In such instance, the $1.5 million
Limit shall not be applicable.
(ii) If the loan documents evidencing Loan B provide for a
release mechanism and price and pursuant to which a payment of less than the
full outstanding balance of Loan B is required in order to release the 78 acres
of "Phase II" property from the mortgage securing the repayment of Loan B, then
upon Xxxxxxxx'x request, each of the parties shall cause to be paid to the
lender its proportionate share of such release price, determined by reference to
the number of Units owned by each party in the Partnership. In such instance,
the $1.5 million Limit shall not be applicable.
(iii) The parties acknowledge and agree that neither BEF, BT
nor EST shall unilaterally repay or satisfy the outstanding balance of Loan B
prior to its maturity without first affording Xxxxxxxx the opportunity to
exercise its rights under (i) and (ii) above.
5. Section 11.1(e). Section 11.1(e) is amended to add the following
language at the end of such section:
Closing of the Construction Loan described in the Commitment
Letter shall constitute "securing and closing construction financing" as set
forth in Section 11.1(e) herein.
6. Section 16.1(a). Section 16.1(a) is amended by adding the following
language to the end of such section:
For purposes of this Section 16.1(a), completion of the
Project shall not be deemed to occur (and the "buy-sell" mechanism described in
Section 16.1(a) may not be activated) until one year following completion (as
defined herein) of both Phase I-A and Phase I-B.
7. Ratification. By their execution hereof, the parties hereby ratify
the Commitment Letter, the Original Partnership Agreement, and all amendments
thereto (including this Fifth Amendment) as though such Partnership Agreement
and all amendments thereto were re-executed by the parties hereto as of the date
hereof.
8. Phase II Mortgage. By their execution hereof, the parties hereby
agree that all closing costs incurred in connection with the Construction Loan
attributable to the mortgage of the "Phase II" land shall constitute Partnership
expenses, payable by the Partnership.
9. Execution. This Amendment may be executed in several counterparts,
and as so executed shall constitute one agreement, binding on all parties
hereto, notwithstanding that all the
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parties are not signatories to the original or the same counterpart. This
Amendment may be executed by facsimile signature, provided that an executed
original counterpart shall be provided to all other parties as soon as
reasonably possible after delivery of such facsimile execution.
IN WITNESS WHEREOF, the parties hereto have executed this
Fifth Amendment to Agreement of Limited Partnership as of the day and year first
above written.
BEF, INC, a Tennessee corporation,
as general partner
By:
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XXXXXXXX-XXXXX INDUSTRIES, INC.,
a Delaware corporation, as general partner
By:
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BT PARTNERSHIP, a Tennessee general
partnership, as limited partner
By:
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EST ORLANDO., a Florida limited
partnership, as limited partner
By:
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