RESTATED THIRD AMENDMENT TO PARTNERSHIP AGREEMENT
This Restated Third Amendment is entered into effective as of January 1,
1995 by and among DevelopMed Associates, Inc., an Ohio corporation
("DevelopMed"), and JMAC Properties, Inc., an Ohio corporation ("JMAC
Properties").
WHEREAS, DevelopMed and JMAC Properties are general partners in DevelopMed
Operating Company, an Ohio general partnership (the "Partnership") organized
pursuant to a Partnership Agreement made on October 18, 1991, to be effective as
of October 1, 1991 (the "Partnership Agreement"), as previously amended pursuant
to: (i) an Amendment to Partnership Agreement made effective as of April 2, 1992
(the "Amendment"); and (ii) a Memorandum of Agreement made effective as of
January 1, 1995 (the "Memorandum Agreement");
WHEREAS, the parties previously executed a Third Amendment to Partnership
Agreement (the "Third Amendment") pursuant to which the economic arrangements
described herein initially were agreed to, and the parties desire to simplify
the documentation of such previously agreed to economic arrangements; and
WHEREAS, the parties desire to restate the Third Amendment in its entirety
and to thereby amend the Partnership Agreement in certain respects.
NOW, THEREFORE, the parties hereby agree as follows:
1. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Partnership Agreement, the Amendment and the Loan Agreement.
2. The following amendments shall be made to section 1.2 of the
Agreement:
(a) The definition of "Net Capital Contribution" shall be amended and
restated as follows:
"Net Capital Contribution" shall at any time mean, with respect to any
Interest of any Partner, (i) the Aggregate Capital Contribution made by
such Partner to such time less (ii) all prior distributions made to such
Partner pursuant to sections 5.1(b)(2), 5.1(b)(3), 5.2(b)(2), 5.2(b)(3),
5.2(b)(4) and 5.3(b)(2). Each Partner's Net Capital Contribution shall be
allocated equally among all Units held by such Partner.
3. Section 3.3 of the Agreement shall be deleted in its entirety, and the
following shall be inserted in its place:
The Interests shall be divided into 120 Units. The Units shall be
allocated among the Partners as follows:
DevelopMed 40 Units
JMAC Properties 80 Units
4. The existing provision of section 4.3 shall be designated as section
4.3(a), and the following shall be added as section 4.3(b):
(b) During calendar year 1995, JMAC Properties shall be required to
make additional Required Equity Contributions of cash with respect to its
Interest in the aggregate amount of $5,000,000, which shall be payable in
U.S. dollars at such times and in such amounts as the Managing Partner
shall reasonably determine.
5. Section 5.1(b)(3) of the Agreement shall be deleted in its entirety
and the following shall be inserted in its place:
(3) Third, to make a distribution to the Partners to the extent of;
and in proportion to, each Partner's Net Capital Contribution; and
(4) Finally, with any remainder among the Partners in proportion to
their Units.
6. Section 6.1(b) shall be deleted in its entirety and the following
shall be inserted in its place:
(b) Any Profit for each period shall be allocated among the Partners
in the following order of priority:
First, if the Net Capital Contribution of any Partner is in excess of
the balance of the Capital Account of such Partner, then to all such Partners to
the extent of; and in proportion to, such excess of each such Partner; and
Finally, to all of the Partners in proportion to their Units.
7. As set forth in the Memorandum Agreement, the parties agree as
follows:
(a) The parties acknowledge and agree that, as of December 31, 1994,
JMAC has effected Funding Loans to the Partnership in the aggregate
principal amount of $4,209,595, at such times and in such amounts as set
forth on Schedule A attached hereto. The proceeds of the Funding Loans have
been applied by the Partnership principally for development of the Original
Properties and Additional Projects, directly or through affiliated
entities. Accrued and unpaid interest on the Funding Loans was $607,180.75
as of December 31, 1994, as set forth on Schedule A attached hereto. The
aggregate amount of principal and interest outstanding under the Funding
Loans as of December 31, 1994 was $4,816,775.75 (the "Conversion Amount").
Effective as of January 1, 1995, the Conversion Amount shall be
converted to a Capital Contribution and credited to the Capital Account of
JMAC Properties. All instruments evidencing the Partnership's obligations
as borrower with respect to the Funding Loans, including without limitation
the 12% Subordinated Debenture dated October 18, 1991 in the principal
amount of $2,500,000 and the 12% Supplemental
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Subordinated Debenture dated March 11, 1993 in the principal amount of
$250,000, are hereby deemed paid in full, discharged and canceled as a
result of such conversion.
(b) The parties acknowledge and agree that the DMA Operating Loan
evidenced by two (2)12% Subordinated Debentures in the amount of $62,500
each and payable to Richard R. Slager and Alan B. Satterwhite,
respectively, principals of DevelopMed, as of December 31, 1994 had an
outstanding principal balance in the aggregate amount of $106,666 ($53,333
each), with accrued but unpaid interest of $14,031.78 ($7,015.89 each)
through such date. The 12% Subordinated Debenture originally payable to
Richard R. Slager previously had been purchased by and assigned to JMAC.
Effective as of January 1, 1995, the $120,697.78 of principal and accrued
but unpaid interest thereon of the DMA Operating Loan shall be converted to
a Capital Contribution, with $60,348.89 credited to the Capital Account of
DevelopMed, and $60,348.89 credited to the Capital Account of JMAC
Properties. The 12% Subordinated Debentures dated October 18, 1991 are
hereby deemed paid in full, discharged and canceled as a result of such
conversions. As evidenced by his signature in the Memorandum Agreement,
Alan B. Satterwhite has consented to such conversion for the benefit of
DevelopMed of $60,348.89 otherwise payable to him.
(c) The parties acknowledge and agree that the DMA Debenture Loan
evidenced by a Debenture dated October 18, 1991 in the original principal
amount of $400,000, as of December 31, 1994 had an outstanding principal
balance of $400,000, with all interest paid through such date. Effective as
of January 1, 1995, the $400,000 principal balance of the DMA Debenture
Loan shall be converted to a Capital Contribution and credited to the
Capital Account of DevelopMed. The Debenture dated October 18, 1991 is
hereby deemed paid in fill, discharged and canceled as a result of such
conversion.
8. The Third Amendment is hereby restated in its entirety.
9. Except as otherwise expressly provided herein, the provisions of the
Partnership Agreement shall remain in full force and effect.
10. This agreement may be signed in counterparts, each of which when
considered together shall be considered one and the same original.
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IN WITNESS WHEREOF, the parties hereto have caused this Restated Third
Amendment to be executed effective as of the date first set forth above.
DevelopMed Associates, Inc.
By:
----------------------------
Richard R. Slager, President
JMAC Properties, Inc.
By:
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Michael H. Thomas, Vice President
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