EXHIBIT 3.6
Third Amendment
To
First Amended and Restated Agreement of
Limited Partnership of
NATIONAL REALTY, L.P.,
a Delaware Limited Partnership
SYNTEK ASSET MANAGEMENT, L.P., a Delaware limited partnership
(hereinafter "Syntek"), the sole general partner of NATIONAL REALTY, L.P., a
Delaware limited partnership (hereinafter the "Partnership"), pursuant to the
authority granted to Syntek by Paragraph 15.2.19(i) of the First Amended and
Restated Agreement of Limited Partnership, dated as of January 29, 1987, as
amended as of May 14, 1990 (the "First Amendment") and December 18, 1998 (the
"Second Amendment") (hereinafter the "Partnership Agreement"), by this Third
Amendment hereby amends the Partnership Agreement in the following respects:
(i) A new definition to Paragraph 2 is added to read as
follows:
"ART Group" means (a) Syntek, (b) Syntek Asset
Management, Inc., a Texas corporation, (c) American Realty Trust, Inc., a
Georgia corporation, (d) Basic Capital Management, Inc., a Nevada corporation,
(e) BCM Holdings, Inc., a Nevada corporation, (f) ART Holdings, Inc., a Nevada
corporation, (g) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (h) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and (i) any other
person or persons listed, or required to be listed, on Schedule 13D filings made
by American Realty Trust, Inc. related to ownership in the Partnership.
(ii) A new Paragraph 9.17 shall be added to the Partnership
Agreement to read as follows:
9.17 Adjustment in Fee Calculations for Fees Paid to
Prior General Partners. Notwithstanding anything else in this
Paragraph 9 or this Agreement, no General Partner shall be
entitled to a fee if a prior General Partner already received
such fee or had its general partner interest under Paragraphs
17.9 and 17.10 repurchased based on the inclusion of such
fee. In such case, the General Partner shall only be entitled
to fees based on the amount of the increase over the amount
for which fees were already paid to the prior General
Partner. For purposes of determining the amount owed under
Paragraph 17.10 of this Agreement, prior to the set-off
required by Paragraph 17.9.6 of this Agreement, this
Paragraph 9.17 shall be ignored. An example of this Paragraph
9.17 is set forth below
A prior General Partner is involuntarily removed as
General Partner. Upon such removal, such General Partner's
interest is
purchased by the Partnership for $25,000,000 under the
calculations made in Paragraph 17.10. The components included
in such calculation were as follows:
Paragraph 9.4 fees $ 7,000,000
Paragraph 9.8.1 fees 12,000,000
Repurchase of 1.99% interest 6,000,000
-----------
in the Partnership and
and National Operating, L.P.
Total $25,000,000
===========
Provided that the successor General Partner upon taking
office has purchased its 1.99% interest in the Partnership
and National Operating, L.P. from the Partnership and
National Operating, L.P., then, the successor General
Partner shall not receive any fees under either Paragraphs
9.4 and 9.8.1 until the Partnership's activities have
resulted (through actual sales or actual distributions and
not through deemed sales or deemed distributions) in
$19,000,000 of fees that would have been paid to the General
Partner under Paragraphs 9.4 and 9.8.1, but for this
Paragraph 9.17. Once the $19,000,000 threshold (the
"Threshold Amount") has been met, the successor General
Partner shall be entitled to receive fees under Paragraphs
9.4 and 9.8.1 on a current basis based on actual sales and
actual distributions for amounts above the Threshold Amount.
Assume further that at the time of the General
Partner's removal above, the General Partner owed the
Partnership $30,000,000, such that at the time of removal,
the General Partner was required to repay the Partnership
$5,000,000 ($25,000,000 owed by the Partnership to the
General Partner under Paragraph 17.10 minus $30,000,000 owed
by the General Partner to the Partnership). The fact that the
General Partner owed the Partnership $5,000,000 shall not
reduce the Threshold Amount.
(iii) Paragraph 17.9 of the Partnership Agreement shall be
amended in its entirety to read as follows:
17.9 Purchase of General Partner's Interest
17.9.1 Upon Syntek's ceasing to be General Partner,
Syntek shall not have its interest in the Partnership repurchased.
17.9.2 If, after Syntek ceases to be General Partner, a
General Partner of the Partnership voluntarily ceases to be General Partner
(e.g., by resignation or through the merger of the Partnership into another
entity in which the ART Group, or the ART Group's affiliates, are the
beneficial owners, as defined in Rule 13d-3 of the Securities Exchange Act of
1934, of more than 10% of such entity prior to such merger or 25% or more of the
entity immediately after such merger ["Voluntary Merger"]), such General Partner
shall not have its interest in the Partnership repurchased.
17.9.3 If, after Syntek ceases to be General Partner, a General
Partner of the Partnership involuntarily ceases to be General Partner (e.g., by
court order, by removal by the limited partners or by merger, other than a
Voluntary Merger), such General Partner shall have its interest in the
Partnership repurchased. In such a case, such General Partner's interest in (i)
the Partnership, as set forth in Paragraph 11 of this Agreement; and (ii) the
fees and other compensation to be paid under Paragraph 9 of this Agreement,
shall both be purchased by the Partnership for a purchase price equal to the
aggregate fair market value of such General Partner's interest in such items
determined according to the provisions of Paragraph 17.10 of this Agreement. The
purchase price of such interest, after the offsets required by Paragraph 17.9.5
(the "Net Amount"), shall be paid by the Partnership to such General Partner in
the form of an unsecured promissory note in the principal amount of the Net
Amount, with interest at 10 percent per annum payable monthly and principal and
interest amortized over a period of 36 months in equal consecutive installments.
17.9.4 For the purposes of this Paragraph 17.9, if the General
Partner is an affiliate of Syntek or the ART Group and Syntek or the ART Group
control the vote on the removal of the General Partner, the removal of the
General Partner by the limited partners of the Partnership shall be considered
"voluntary" rather than "involuntary" and therefore, upon such removal, such
affiliate General Partner shall not have its interest in the Partnership
repurchased.
17.9.5 Nothing in this Paragraph 17.9 shall remove the General
Partner's obligations, either under (i) Paragraph 5.1.2 of this Agreement or
(ii) to repay any other loans to the Partnership, including, but not limited to
the promissory note to be assumed by the successor General Partner to Syntek
related to repayment of the amounts set forth in paragraph 10 of that Agreement
for Cash Distribution and Election of Successor General Partner, dated as of
July 15, 1998, among Syntek, the Partnership and the National Realty L.P.
Oversight Committee (finally approved by the Court on October 23, 1998).
17.9.6 A successor General Partner that succeeds to the office of
General Partner after one or more prior General Partner(s) have had such General
Partner(s)' interest in the Partnership purchased under this Paragraph 17.9,
shall be entitled to
have such successor General Partner's interest purchased on the terms set forth
in Paragraphs 17.9.1 through 17.9.5 above; however, the amount owed to any
successor General Partner shall be set-off by any amounts paid by the
Partnership to any prior General Partner(s). An example is set forth below:
A prior General Partner unaffiliated with Syntek or the ART Group is
removed by the limited partners. Upon such removal, such General Partner's
interest is purchased by the Partnership for $25,000,000 under the calculations
made in Paragraph 17.10. However, the General Partner owed the Partnership
$13,000,000 pursuant to Paragraph 5.1.2 of this Agreement and $12,000,000
pursuant to the amounts set forth in Paragraph 17.9.5(ii) above, for a total of
$25,000,000. Accordingly, upon such removal, such amounts were netted, resulting
in neither a payment from the Partnership nor the General Partner. Two years
later, a new General Partner is involuntarily removed and under the new
calculations in Paragraph 17.10, the payment for the purchase of the new General
Partner's interest is calculated to be $30,000,000, prior to the set-off in
Paragraph 17.9.6. Therefore, upon the new General Partner involuntarily ceasing
to be the General Partner, the new General Partner's interest shall be
repurchased by the Partnership for a payment of $5,000,000 ($30,000,000
Paragraph 17. 10 calculation minus a $25,000,000 set off for the amounts
previously paid to the prior General Partner) minus the amount of any
outstanding loans from the Partnership to the General Partner.
[The rest of this page left intentionally blank.]
IN WITNESS WHEREOF, Syntek has executed this Third Amendment to
the First Amended and Restated Agreement of Limited Partnership as of the
__________ day of December, 1998.
SYNTEK ASSET MANAGEMENT, L.P., a
Delaware limited partnership
By: SYNTEK ASSET MANAGEMENT, INC.
a Texas corporation, as managing
general partner
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Partner
STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
On this 18 day of December, 1998, before me, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a
-- ---------------
Notary Public in and for the State of Texas, personally appeared ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, personally known to me, or proved to me on the basis of satisfactory
evidence, to be the person whose name is subscribed to the within instrument on
behalf of Syntek Asset Management, L.P., and acknowledged to me that said
partnership executed it.
[SEAL APPEARS HERE] /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Notary Public, State of Texas
My Commission Expires:
February 4, ▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (S)
(S)
COUNTY OF DALLAS (S)
On this 18 day of December, 1998, before me, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a
-- ---------------
Notary Public in and for the State of Texas, personally appeared ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, personally known to me, or proved to me on the basis of satisfactory
evidence, to be the person whose name is subscribed to the within instrument on
behalf of Syntek Asset Management, L.P., and acknowledged to me that said
partnership executed it.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[SEAL APPEARS HERE] ---------------------------------
Notary Public, State of Texas
My Commission Expires:
February 4, 2002
------------------------