EXHIBIT 10-D
------------
(Carlyle-XV)
AMENDMENT NO. 2 TO
AMENDED AND RESTATED
AGREEMENT OF GENERAL PARTNERSHIP
FOR PROGRESS PARTNERS
--------------------------------
AMENDMENT NO. 2 ("Amendment"), dated as of this 17th day of March,
1999, to the Amended and Restated Agreement of General Partnership dated as
of August 20, 1984, as amended pursuant to Amendment No. 1, dated as of
February 26, 1986 ("Partnership Agreement") is made by and among PROGRESS
PROPERTIES, INC. ("PPI"), J.R.A. REALTY CORPORATION ("JRA"), P-C 900 THIRD
ASSOCIATES ("P-C 900," and collectively with PPI and JRA, the "Progress
Group"), 900 REALTY, LLC ("900 Realty" and collectively with PPI, JRA and
P-C 900, the "Progress Parties"), ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ASSOCIATES ("Associates"),
and PROGRESS PARTNERS (the "Partnership").
W I T N E S S E T H:
-------------------
WHEREAS, each of the entities constituting the Progress Group and
Associates are (or were) partners in the Partnership pursuant to, among
other things, that certain Amended and Restated Agreement of General
Partnership for Progress Partners dated as of August 20, 1984, as amended
pursuant to Amendment No. 1, dated as of February 26, 1986 ("Partnership
Agreement");
WHEREAS, the Federal Deposit Insurance Corporation has filed
various claims against, among others, Associates, the Progress Group and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, individually, arising from ▇▇▇▇▇▇▇▇'▇ acquisition of
certain interests in the Progress Group, entitled FDIC V. PROGRESS
PROPERTIES, et al., Case No. 91 Civ. 3761 (S.D.N.Y.) and FDIC V. FIRST
MARYLAND, et al., Case No. 96 Civ. 3792 (S.D.N.Y.) both of which are
presently pending in the United States District Court for the Southern
District of New York, and FDIC V. FIRST MARYLAND, et al., presently pending
in Circuit Court of Maryland for Baltimore City, Case No.
96141932/CL212356;
WHEREAS, Associates filed a cross-complaint against, among others,
the Progress Group, arising from its prior management of the Property, in
the action entitled FDIC V. PROGRESS PROPERTIES, et al., Case No. 91 Civ.
3761 (S.D.N.Y.) presently pending in the United States District Court for
the Southern District of New York;
WHEREAS, in or about January, 1996, the Maryland Deposit Insurance
Fund Corporation obtained a judgment against PPI and JRA to foreclose its
lien on the partnership interests in the Partnership and P-C 900 held by
PPI and JRA (collectively, "PPI/JRA Partnership Interests");
WHEREAS, 900 Realty has represented that in or about January, 1998,
MDIF assigned to 900 Realty, for good and valuable consideration, all of
MDIF's right, title and interest in its judgment and the PPI/JRA
Partnership Interests;
WHEREAS, 900 Realty conducted a foreclosure sale of the PPI/JRA
Partnership Interests at which sale 900 Realty was the successful purchaser
and now maintains that is the holder of the PPI/JRA Partnership Interests,
as evidenced by a certificate of sale, dated as of September 14, 1998, a
copy of which has been delivered to Associates;
WHEREAS, Associates maintains that it holds a lien on (and the
Progress Parties contest that Associates holds a lien on) the PPI/JRA
Partnership Interests as well as the partnership interest of P-C 900 in the
Partnership to secure that certain promissory note, dated as of August 20,
1984 in the original principal amount of $20 million, together with
interest accrued thereon ("Associates' Note") made by PPI and delivered to
Associates, which lien Associates claims (and the Progress Parties contest)
is superior to MDIF's lien;
WHEREAS, PPI, JRA and 900 Realty have asserted various claims against
the Partnership and Associates (and Associates and the Partnership have
contested such claims), including, without limitation, (i) the
mismanagement of the Property by JMB and/or ▇▇▇▇▇▇▇ (ii) claims arising
from Associates' negotiations and agreement with MDIF after MDIF obtained
its judgment, (iii) claims under the Partnership Agreement by the Progress
Group against the Partnership for certain Guaranteed Payments (as defined
therein) and other claims asserted by or on behalf of the Partnership
against Associates for certain capital contributions allegedly due from
Associates to the Partnership and (iv) claims arising from distributions
taken by Associates for the repayment of certain funds loaned to the
Partnership in connection with the refinancing of the Partnership's debt
and other distributions;
WHEREAS, Associates, the Progress Parties and the Partnership have
agreed to settle and compromise some of the various claims between them by
means of this Amendment; and
NOW, THEREFORE, in consideration of the premises aforesaid, the
mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. 900 Realty shall be admitted and substituted as general partner
in lieu of PPI and JRA. 900 Realty agrees to be bound by all of the terms
and provisions of the Partnership Agreement, as amended by this Amendment,
as fully as if 900 Realty were a signatory thereto.
2. Paragraph D of Section 1.7 of the Partnership Agreement is hereby
amended to read in its entirety as follows:
"D. "PROGRESS GROUP" means, individually and
collectively, 900 Realty LLC, a Delaware limited liability company and P-C
900 Third Associates, a New York limited partnership, and their respective
successors and assigns."
3. The Progress Group Relative Shares shall be seventy-five percent
(75%) to 900 Realty and twenty-five percent (25%) to P-C 900.
Notwithstanding anything in Section 1.7N or any other provision of the
Partnership Agreement to the contrary, the Progress Group Relative Shares
cannot be modified without the written consent of Associates.
4. Notwithstanding any contrary term contained in the Partnership
Agreement, that certain Consent Agreement dated as of October 27, 1990 by
and among the PPI and JRA, Associates and First Maryland Savings and Loan
("MDIF Agreement"), or any other written or oral agreement or understanding
between any of the parties hereto, the provisions of this Agreement shall
govern and, with respect to the distribution of or payment of any monies to
any of the partners of the Partnership, this Agreement supersedes all
provisions in the Partnership Agreement or MDIF Agreement relating to such
payments or distributions. Without limitation of the foregoing, Associates
shall have no obligation whatsoever hereafter to make contributions
pursuant to Sections 2.1.B and 2.2 of the Partnership Agreement and the
Progress Group shall have no right whatsoever hereafter to any Guaranteed
Payments pursuant to Article III of the Partnership Agreement or otherwise.
5. Section 3.2 of the Partnership is hereby amended to read in its
entirety as follows:
"Net Cash Receipts (if any) for such calendar year or portion
of such calendar year shall be distributed seventy percent (70%) to
Associates and thirty percent (30%) to the Progress Group."
6. Paragraph A of Section 3.3 of the Partnership is hereby amended
to read in its entirety as follows:
"A. FIRST LEVEL. There shall be distributed to Associates
such Net Sale Proceeds or Net Financing Proceedings until Associates shall
have received under this subsection A an aggregate of $36,000,000."
7. Paragraph D of Section 3.3 is hereby deleted in its entirety.
8. Paragraph E of Section 3.3 of the Partnership is renumbered as
Paragraph D and is hereby amended to substitute the words "subsections A
through C" in lieu of "subsections A through D".
9. Notwithstanding the provisions of Article IV of the Partnership
Agreement, taxable profits and taxable losses, profits and losses, and gain
or loss, shall be allocated among the partners by applying the rules of
Treas. Reg. Section 1.704-1(b).
10. For any taxable year in which a partner disposes of his entire
interest, in order to avoid an interim closing of the partnership books,
such partner's distributive share of items described in Section 702(a)
shall be estimated and allocated to such partner by estimating the pro rata
part of the items which would have been included if such partner remained a
partner until the end of the partnership year. The proration shall be
determined in a reasonable manner, as provided in Section 1.706-
1(C)(2)(ii), which will allocate income to a partner on a pro rata basis
only for the period in which such partner was a partner (which in the case
of 900 Realty shall be deemed to end on March 22, 1999). A transferee of
such partner's interest shall be allocated his pro rata share of the items
described in Section 702(a) determined by the method used by the transferor
partner.
11. This Agreement shall constitute a written amendment to the
Partnership Agreement, as required by Section 10.2 thereof.
12. The Partnership Agreement shall remain in full force and effect
except as amended hereby.
13. This Amendment may be signed in any number of counterparts with
the same effect as if the signatures thereto were upon the same instrument.
IN WITNESS HEREOF, the parties have executed this Agreement the day
and year first above written.
PROGRESS PROPERTIES, INC.
By:
------------------------------
Its:
------------------------------
J.R.A. REALTY CORPORATION
By:
------------------------------
Its:
------------------------------
P-C 900 THIRD ASSOCIATES
By: 900 Realty LLC, General Partner
By:
------------------------------
Its:
------------------------------
PROGRESS PARTNERS
By: Progress Properties, Inc., General
Partner
By:
------------------------------
Its:
------------------------------
By: J.R.A. Realty Corporation, General
Partner
By:
------------------------------
Its:
------------------------------
By: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Associates,
General Partner
By: Carlyle Real Estate Limited
Partnership-XIV, a General
Partner
By: JMB Realty Corporation, a
General Partner
By:
-------------------------
Its:
-------------------------
900 REALTY, LLC
By:
------------------------------
Its:
------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ASSOCIATES
By: Carlyle Real Estate Limited
Partnership-XIV, a General Partner
By: JMB Realty Corporation, a
General Partner
By:
------------------------
Its:
------------------------