THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
OF
XXXXXX XXXXX ASSOCIATES L.P.
This Third Amendment to the Second Amended and Restated Agreement of
Limited Partnership ("Second Amendment") of XXXXXX XXXXX ASSOCIATES L.P. is made
and entered into as of the 18th day of April, 1997, by and among the undersigned
parties.
WHEREAS, as of June 1, 1990, THE XXXXX GROUP, INC., a New York
corporation with an office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("Xxxxx"), THE XXXXXXX GROUP, INC., a Delaware corporation with an office at 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxxx") and TWIN CASTLE
GROUP INC., a New York corporation with an office at 000 Xxxxx Xxxxxx, Xxxxx,
Xxx Xxxx 00000 ("Twin Castle") (Xxxxx, Xxxxxxx and Twin Castle sometimes
hereinafter being referred to collectively as the "Original General Partners")
and AMERICAN TAX CREDIT PROPERTIES III L.P., a Delaware limited partnership with
an office c/x Xxxxxxx (the "Limited Partner") entered into the Second Amended
and Restated Agreement of Limited Partnership (the "Agreement") of Xxxxxx Xxxxx
Associates L.P. (the "Partnership"); and
WHEREAS, as of March 24, 1997, the Original General Partners and the
Limited Partner entered into a First Amendment of the Agreement, which inter
alia, authorized the execution of a Certificate of Adoption of the Revised
Limited Partnership Act (Article 8-A of the Partnership Law of the State of New
York) (the "Revised Act") and an Amendment thereto changing the name of the
Partnership to Xxxxxx Xxxxx Associates L.P.
WHEREAS, as of today's date, and immediately prior to the execution of
this Agreement, the Original General Partners and the Limited Partner entered
into a Second Amendment of the Agreement, which, inter alia, effectuated the
withdrawal of Twin Castle as a General Partner and the acquisition of its
interest by the Partnership ;
WHEREAS, the parties now desire to enter into this Third Amendment to
(i) continue the Partnership, (ii) effect the withdrawal of Twin Castle as a
General Partner and the transfer of its interest to the Partnership, (iii)
reassign the interests of the Partners, and (iv) authorize the filing of a
Certificate with the New York State Department of State reflecting the interest
of Xxxxx as the sole General Partner.
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of
the parties hereto and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to continue the
Partnership pursuant to the Revised Act, as set forth in this Third Amendment,
as follows:
1. All initially capitalized terms shall have the meanings ascribed to
them in the Agreement, unless otherwise provided herein. This Agreement may be
signed in counterparts.
2. Upon the execution of the Third Amendment by the parties hereto, the
Managing General Partner (i.e., Xxxxx) shall take all actions necessary and
appropriate to assure the prompt filing of a Certificate of Amendment pursuant
to Section 121-202 of the Revised Act reflecting the withdrawal of Twin Castle
and Xxxxxxx as General Partners. (This obviates the need for filing the
Certificate contemplated in the Second Amendment.) All fees for the filing shall
be paid out of the Partnership's assets.
3. Selected definitions in Article II ("DEFINED TERMS") of the
Agreement are hereby amended,
as follows:
"Act" means the Uniform Limited Partnership Act of the State, except
that, as of March 27, 1997, with the filing of the Certificate of Adoption with
the New York State Department of State, the Revised Limited Partnership Act
shall control.
"Final Closing" means the occurrence of the following: (i)
Substantial Completion and (ii) the
conversion of the Construction Loans to Mortgage Loans as of the date hereof.
"General Partners" or "General Partner" means The Xxxxx Group, Inc. and
any other Person admitted as a general partner pursuant to this Agreement, and
their respective successors pursuant to this Agreement, including the provisions
of Sections 6.03, 8.01 and 8.13.
"Partnership" means Xxxxxx Xxxxx Associates L.P.
"Special Limited Partner" [new] means "The Xxxxxxx Group, Inc."
formerly, a General Partner), which may be considered to be a Limited Partner,
except as may be specifically provided in the Agreement.
4. (a) Schedule A of the Agreement as referred to in Section 5.01
thereof, is amended to reflect the withdrawal of Twin Castle and Xxxxxxx as
General Partners and the addition of Xxxxxxx as Special Limited Partner:
General Partner Partnership Interest
The Xxxxx Group, Inc. 2/3%
Limited Partner
American Tax Credit Properties III L.P. 99%
Special Limited Partner
The Xxxxxxx Group 1/3%
(b) The execution of this Third Amendment by the Limited Partner
constitutes its consent to the conversion described herein and to the amendment
of the Agreement pursuant to Article XIV thereof.
5. The withdrawal of Xxxxxxx as a General Partner from the Partnership
does not constitute its disclaimer and renunciation of any further fees, profits
or other payments arising out of or pertaining to the Partnership and/or the
Project, including but not limited to fees, profits or other payments arising
out of the Partnership Administration Services Agreement by and among Xxxxx,
Xxxxxxx and Twin Castle and the Development Agreement by and among Xxxxxx Xxxxx,
Xxxxxxx X. Xxxxxxx and Xxxxxxx Xxxxxxxx, both dated June 1, 1990. The parties
hereto acknowledge and agree that Xxxxxxx shall continue to enjoy the benefits
and assume the burdens under such Agreements, as if it were still a General
Partner. Similarly, Xxxxxxx may not obtain any of the aforesaid payments
otherwise due to General Partners if fees are withheld pursuant to Section 8.12.
6. Section 11.01(a) provides that , "to the extent that the Partnership
does not distribute at least $5,000 to the Investment Partnership (from Net Cash
Flow or otherwise) in any year, the General Partners... hereby covenant that
they (sic) will pay to the Investment Partnership in any year an amount equal to
such shortfall..." It is agreed between the Xxxxx and Xxxxxxx, that if Xxxxx is
obligated to make such payment that Xxxxxxx will pay one-third of such amount
due.
7 Section 11.03(a)(iii) is amended to read: "... third, gain
in excess of the amount allocated under (i) and (ii) shall be allocated
50.50% to the General Partner and the Special Limited Partner in accordance
with their respective Partnership Interests and 49.50% to the Investment
Partnership."
8 (a) Section 11.04(e) is amended to reflect that the sum remaining from
the sale and liquidation of Partnership Property shall be distributed to the
General Partners and the Special Limited Partner (in accordance with their
respective Partnership Interests) until they have received an amount equal to
their Capital Contributions, reduced by all cash previously distributed to them
pursuant to Section 11.04.
8 (b) Section 11.04(g) is amended and clarified to provide that the
residual proceeds from the sale and liquidation of Partnership Property and the
net proceeds from the sale of Partnership Property or refinancing of the
Apartment Complex or a Capital Transaction shall be made 50.50% to the General
Partner and the Special Limited Partner in accordance with their respective
Partnership Interests and 49.50% to the Investment Partnership.
9 Section 16.08 of the Agreement is amended to provide for notices to be
sent to Xxxxx, Xxxxxxx and the Investment Partnership to the addresses set forth
on the first page of this Agreement.
Copies of Notices to the Limited Partners shall be sent to:
Peabody & Xxxxx
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Copies of Notices to Xxxxx shall be sent to:
Hirschen & Singer
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
IN WITNESS WHEREOF, the parties have affixed their signatures to this
Third Amendment to the Second Amended and Restated Agreement of Limited
Partnership of Xxxxxx Xxxxx Associates L.P. as of the date first above written.
GENERAL PARTNER:
ATTEST/WITNESS: THE XXXXX GROUP, INC.
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, President
WITHDRAWING GENERAL PARTNER &
SPECIAL LIMITED PARTNER:
ATTEST/WITNESS: THE XXXXXXX GROUP, INC.
/s/ Xxx X. XxXxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
LIMITED PARTNER:
AMERICAN TAX CREDIT PROPERTIES III L.P.
By: Xxxxxxx Tax Credit Properties III L.P., its
general partner
ATTEST/WITNESS: By: Xxxxxxx Housing Credits Inc., its general partner
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Vice President
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this day of April, 1997, before me personally came Xxxxxx Xxxxx, to
me known, who being by me duly sworn, did depose and say that he resides at ,
New York; that he is the President of THE XXXXX GROUP, INC., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by order of the board of directors of said corporation.
Notary Public
STATE OF CONNECTICUT )
) SS.: Greenwich
COUNTY OF FAIRFIELD )
On this 18th day of April, 1997, before me personally came Xxxxxxx X.
Xxxxxxx to me known, who being by me duly sworn, did depose and say that he
resides at 0 Xxxxxx Xxxx, Xxxxxxxxx, XX, 00000, that he is the President of THE
XXXXXXX GROUP, INC., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of said corporation.
/s/ Xxxx X. Xxxxxx
Notary Public
STATE OF CONN. )
) SS.: Greenwich
COUNTY OF FAIRFIELD )
On this 18th day of April, 1997, before me personally came XXXXX
XXXXXXX, to me known, who being by me duly sworn, did depose and say that he
resides at 00 Xxxxxx Xxxx, Xxxxxxxxx, XX, 00000; that he is the Vice-President
of XXXXXXX HOUSING CREDITS INC., the corporation described in and which executed
the foregoing instrument; which corporation is the general partner of Xxxxxxx
Tax Credit Properties III L.P., the general partner of AMERICAN TAX CREDIT
PROPERTIES III L.P., the limited partnership which executed the foregoing
instrument; that the execution of the instrument by AMERICAN TAX CREDIT
PROPERTIES III L.P. was duly authorized according to the Limited Partnership
Agreement; that XXXXXXX HOUSING CREDITS INC., the general partner of its general
partner, executed the instrument on behalf of the limited partnership pursuant
to said authorization and that he signed his name thereto by order of the board
of directors of said corporation.
/s/ Xxx X. XxXxxxx
Notary Public