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Exhibit 10.3
SEVENTH AMENDMENT TO
SECURITY LAND AND DEVELOPMENT COMPANY
LIMITED PARTNERSHIP AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT AND AMENDED
AND RESTATED CERTIFICATE OF LIMITED PARTNERSHIP
THIS SEVENTH AMENDMENT TO SECURITY LAND AND DEVELOPMENT
COMPANY LIMITED PARTNERSHIP AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
AND AMENDED AND RESTATED CERTIFICATE OF LIMITED PARTNERSHIP (this "Amendment")
is made and entered into as of the 24th day of June, 1998, by and among (i) 1500
Woodlawn Limited Partnership ("Woodlawn"), a Delaware limited partnership
qualified to do business in the State of Maryland, as general partner, and (ii)
(a) William A. Rodgers, an individual resident of the State of Maryland, (b)
Harry W. Rodgers, III, an individual resident of the State of Maryland, (c) W.
Dale Hess, an individual resident of the State of Maryland, and (d) Regency
Affiliates, Inc., a Delaware corporation, as limited partners (the parties set
forth in clauses (i) and (ii) are collectively referred to as the "Partners").
W I T N E S E T H:
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, amended by that certain Amendment to
Certificate dated March 10, 1972, and recorded March 16, 1972, among the
aforesaid co-partnership records in Liber I.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 a
First Amendment dated as of March 12, 1987, a Second Amendment dated as of
November 22, 1988, a Third Amendment dated as of January 1, 1989, a Fourth
Amendment dated as of August 20, 1990, a Fifth Amendment dated as of November
17, 1994, and a Sixth Amendment dated as of November 17, 1994 (as so amended and
restated and further amended, the "Partnership Agreement"); and
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WHEREAS, the parties hereto desire to further amend the
Partnership Agreement (i) to delete the provision allowing Partners to solicit
third-party offers for the Security West Building and requiring objecting
Partners to purchase the soliciting Partner's interest if the objecting Partners
do not accept such third-party offers, and (ii) to add certain new provisions
relating to financing for one of the Partners.
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 hereby agree as follows:
1. Article XIV of the Partnership Agreement is hereby deleted
and a new Article XIV is added to state as follows:
ARTICLE XIV
RIGHTS AND OBLIGATIONS OF THE PARTNERS
WITH REGARD TO THE PROPERTY
14.01 Under the terms of the Escrow Agreement dated June 24,
1998 (the "Escrow Agreement"), simultaneous with the execution of this
Amendment, and with the consent of the Partners, which is evidenced
hereby, the General Partner has delivered to State Street Bank and
Trust Company, as Escrow Agent (the "Escrow Agent"), (i) a duly
executed special warranty deed to transfer fee simple title to the
Property to R.V.I. America Insurance Company ("RVI") or its designee,
(ii) a Bill of Sale to convey to RVI or its designee all personal
property included in the Property, (iii) an Assignment and Assumption
of Leases to assign to RVI or its designee all leases of the Property
and rents and deposits thereunder, (iv) a State of Maryland Land
Instrument Intake Sheet, and (v) an Application for Lien Certificate,
and may hereafter deliver additional documents to the Escrow Agent
pursuant to an undertaking of further assurances set forth in a
separate letter agreement dated on or about the date of the Escrow
Agreement (items (i) through (v) above and such other delivered
documents being referred to collectively as the "Escrowed Documents').
Each Partner acknowledges and agrees that, under the Escrow Agreement,
if the Escrow Agent receives written notice (a "Transfer Notice") from
KBC Bank N.V. ("KBC Bank") that a Notice of Final Claim under Policy
Number 01-01-200220 of RVI (the "Policy"), relating to the Property and
issued in support of that certain loan by KBC Bank to Regency (the "KBC
Loan"), has been delivered by KBC Bank to RVI and is in effect, that
the KBC Loan and accrued interest thereon has not been paid in full,
and that the Escrow Forbearance Period (as defined in the Escrow
Agreement), has expired or been terminated, and if the Escrow Agent
receives confirmation from the Trustee under the Project Loan Agreement
that all amounts due and payable under the Project Loan Agreement have
been paid and that the lien secured by the Trust Agreement shall have
been released (the "Trustee Confirmation"), then the Escrowed Documents
shall be released from escrow and the Escrow Agent, under the terms of
the Escrow Agreement, shall deliver the Escrowed Documents to
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RVI or its designee as specified in the Transfer Notice or any written
amendment thereto not later than ten (10) days after the Escrow Agent
receives the Trustee Confirmation (but not earlier than two (2)
business days after the general partner of the Partnership (the
"General Partner") receives a copy of the Transfer Notice as provided
in the next succeeding sentence). The Escrow Agent shall send to the
General Partner a copy of the Transfer Notice contemporaneously with
the receipt thereof by the Escrow Agent. Each Partner acknowledges and
agrees that under the Escrow Agreement, the Escrow Agent has no
obligation to obtain the consent or approval of the General Partner or
the Partnership in order to effectuate the delivery of the Escrowed
Documents in accordance with the Escrow Agreement.
14.02 Each of the Partners hereby consents to the pledge of
and security interest in the Limited Partnership Interest of Regency
granted by Regency to KBC Bank to secure the KBC Loan. If the General
Partner receives (i) written notice from KBC Bank that the KBC Loan is
outstanding and that an Event of Default has occurred and continues
under the letter agreement dated June 24, 1998 pursuant to which KBC
Bank made the KBC Loan (the "KBC Loan Agreement") and that the General
Forbearance Period (as defined below), if any, has expired or been
terminated; and (ii) written instruction from KBC Bank to assign
Regency's Limited Partnership Interest (the "Pledged Interest") to KBC
Bank, a subsidiary or affiliate of KBC Bank, or any other designee, as
specified in the notice, the Partners hereby consent to, and the
General Partner shall cause, such assignment of the Pledged Interest on
the books of the Partnership and further consent and agree that, to the
extent of the transfer requested in KBC Bank's written instructions,
such transferee shall become a substitute Limited Partner and shall
succeed to all of Regency's rights in the Partnership. The foregoing
consents shall be effective for all purposes of Article XI hereof,
provided, that a transferee under this Section shall be required to
satisfy the requirements of subsections (a), (c), and (d) of Section
12.02 hereof. Each Limited Partner hereby authorizes and directs the
General Partner to execute and deliver such agreements, instruments and
documents, in the name of and on behalf of the Partnership and each
Limited Partner, as may be necessary or appropriate to effectuate an
assignment and substitution of the Pledged Interest pursuant to this
Section, and confirms and agrees, without limiting the generality of
the foregoing, that the power of attorney granted in Section 21.01 of
the Partnership Agreement extends to and includes such agreements,
instruments, and documents. For the purposes of the Partnership
Agreement, "General Forbearance Period" means the period commencing on
November 30, 2003 and ending on the earliest to occur of: (i) April 30,
2005; (ii) the closing of a Qualifying Financing (as defined below) or
a Qualifying Sale (as defined below); or (iii) the earlier termination
of the General Forbearance Period as provided in the next succeeding
sentence. KB may terminate the General Forbearance Period at any time
that either of the following events or circumstances shall exist or
occur: (i) any Event of Default, as defined in the KBC Loan Agreement
as in effect on the date hereof (other than Regency's failure to pay
the Obligations (as defined in the KBC Loan Agreement) on November 30,
2003) shall occur and be
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continuing; or (ii) after the repayment in full of the Partnership's
obligations pursuant to the Project Loan Agreement, any of the
following conditions are not satisfied: (A) the United States
Government is the tenant of the Property and is paying rent for the use
and occupancy of the Property; Regency is receiving distributions of
its share of such rent under the Partnership Agreement (as "Net Cash
Flow" or otherwise) within thirty days after each rental payment is
received; each of such distributions is in an amount which on an
annualized basis is not less than $6,000,000 per annum; and such
distributions are being remitted by the Partnership directly to KB
without reduction for application to the Obligations; and (B) either
(1) the Partnership is engaged in and is diligently pursuing good faith
negotiation for (a) a new lease for the Property, or an extension of
the existing lease, providing for a rent and on other terms that will
enable the Partnership to obtain financing in an amount such that the
proceeds thereof that are to be distributed to Regency under the
Partnership Agreement will be sufficient to repay the KBC Loan and all
accrued interest thereon (such financing being referred to hereinafter
as a "Qualifying Financing") and (b) a Qualifying Financing; or (2) the
Partnership is engaged in and is diligently pursuing good faith
negotiations for the sale of the Property at a price and on terms such
that the amount of cash to be distributed to Regency under the
Partnership Agreement from the proceeds of such sale will be sufficient
to repay the KBC Loan and all accrued interest thereon (such sale being
referred to as a "Qualifying Sale").
14.03 After the expiration or earlier termination of the
Escrow Forbearance Period, if a Notice of Preliminary Claim has been
made under the Policy and the KBC Loan is outstanding, KBC Bank, the
subsidiary, affiliate or designee to which the Pledged Interest has
been transferred pursuant to Section 14.02 hereof, or RVI, shall have
the right to solicit bona fide, third party offers for the Property,
and shall have the right to accept such an offer and bind the
Partnership; provided that such offer and the proposed terms of the
transaction comply with the terms of the Project Loan Agreement.
14.04 The Partnership shall not enter into any refinancing
transaction with respect to the Property while the KBC Loan is
outstanding without the consent of KBC Bank and RVI (which each may
grant in its sole discretion), unless the amount of the proceeds from
such financing distributable by the Partnership to Regency under the
Partnership Agreement is at least equal to all of the obligations then
due and payable under the KBC Loan, and unless there are no
restrictions on the immediate distribution to Regency of such amount of
proceeds from such financing. While the KBC Loan is outstanding, all
amounts which, under applicable law or the Partnership Agreement, are
distributable to Regency as a Limited Partner, up to an amount equal to
the obligations that are then due and payable under the KBC Loan, shall
be paid directly by the Partnership to KBC Bank or its designee. Such
distributions paid to KBC Bank shall be deemed for purposes of the
Partnership Agreement to have been made to Regency.
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2. Article XXII of the Partnership Agreement is hereby amended
by adding a new Section 22.07 to read as follows:
22.07 Anything to the contrary in the Partnership Agreement
notwithstanding, until the Obligations under the KBC Loan have been
paid in full, without the prior written consent of KBC Bank and RVI,
which each may grant in its sole discretion: (a) no additional Limited
Partner shall be admitted to the Partnership, except pursuant to
Section 14.02 hereof or as a transferee of any portion of the Limited
Partner interests existing on June 24, 1998; (b) no transferee of
Regency's interest in the Partnership, other than pursuant to Section
14.02 hereof, shall be admitted to the Partnership; (c) Article VII,
Article IX, Article X, Section 12.02, Article XIII, Article XIV,
Section 15.01, Section 22.06, and Section 22.07 of the Partnership
Agreement shall not be amended or modified in any respect, and no other
provision of the Partnership Agreement shall be amended in any manner
which has or could reasonably be expected to have a material adverse
effect on KBC Bank's rights and remedies with respect to the KBC Loan
or the Pledged Interest, on Regency's ability to repay the KBC Loan
with interest when due, or on the performance of the terms of the
Escrow Agreement; and (d) neither the Partnership nor any of its
Partners shall create or permit to exist any lien, security interest,
or encumbrance on or to the Property except the lien of the Trustee
created pursuant to the Project Loan Agreement and except for liens,
security interests, and encumbrances which would constitute "Permitted
Encumbrances", as defined in the Project Loan Agreement, whether or not
the Project Loan Agreement is then in effect. The provisions of this
Section 22.07 and Article XIV shall inure to the benefit of, and are
enforceable directly by, KBC Bank and RVI.
3. Section 9.01(d) of the Partnership Agreement is hereby
amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing provisions of this
Subsection to the contrary, until the Obligations under the KBC Loan
(as defined in Article XIV) have been paid in full, all distributions
of all Net Cash Flow of the Partnership shall be distributed
ninety-five percent (95%) to Regency and five percent (5%) to the Class
A Partners as a group. After repayment in full of all Obligations under
the KBC Loan, distributions of Net Cash Flow shall be made in
accordance with the first three sentences of this subsection.
4. Woodlawn hereby represents and warrants that attached
hereto as Exhibit A is a complete and correct copy of the Partnership's
information return filed with the Internal Revenue Service (including all Forms
K-1 filed therewith) with respect to the tax years ended December 31, 1996 and
December 31, 1997.
5. Except as amended hereby, the Partnership Agreement is
ratified and affirmed in all respects.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Amendment 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:
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Name: Conrad Cafritz
Title: President
LIMITED PARTNERS:
WITNESS:
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HARRY W. RODGERS, III
WITNESS:
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WILLIAM A. RODGERS
WITNESS:
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W. DALE HESS
WITNESS: REGENCY AFFILIATES, INC.
By:
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William R. Ponsoldt, Sr.
President
[SEVENTH AMENDMENT]