SECOND AMENDMENT TO THE LIMITED PARTNERSHIP AGREEMENT OF CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES
EXHIBIT
3.5
SECOND AMENDMENT
TO THE
OF
THIS SECOND AMENDMENT TO THE LIMITED PARTNERSHIP AGREEMENT OF CONSOLIDATED CAPITAL
INSTITUTIONAL PROPERTIES (the “Amendment”) is entered into as of the 23rd day of October, 1990, by
and among Consolidated Capital Equities Corporation, a Colorado corporation (“CCEC”), ConCap
Equities, Inc., a Delaware corporation (“ConCap”), and the Limited Partners (herein so called).
WHEREAS, CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES, a California limited partnership (the
“Partnership”), exists pursuant to that certain LIMITED PARTNERSHIP AGREEMENT dated as of April
28, 1981, as amended by that certain First Amendment to the Limited Partnership Agreement dated as
of July 11, 1985 (as amended, the “Partnership Agreement”); unless otherwise defined herein, terms
used herein with their initial letters capitalized shall have the same meanings given such terms
in the Partnership Agreement;
WHEREAS, pursuant to an Information Statement and Solicitation of Limited Partners dated
August 10, 1990, CCEC has obtained consents of the requisite percentage-in-interest of the Limited
Partners (i.e., Limited Partners holding greater than fifty percent (50%) of the Units) necessary
for CCEC to assume the Partnership Agreement pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bankruptcy Code and to assign its partnership interest to ConCap, to elect ConCap as a successor
General Partner to continue the Partnership business, and to amend the Partnership Agreement, as
set forth herein; and
WHEREAS, the parties desire to amend the Partnership Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises, the
agreements of the parties herein contained, and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged and confessed, the parties hereby agree as
follows:
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1.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ are hereby removed as individual General Partners
of the Partnership.
2. The interest of CCEC as a General Partner of the Partnership has been assigned and
transferred to ConCap. ConCap has been elected as a General Partner of the Partnership by Limited
Partners holding a majority of the Units to continue the Partnership business. ConCap has
succeeded to all rights, titles and interests in the Partnership formerly held by CCEC, and from
and after the date hereof, ConCap shall be the sole Corporate General Partner and the sole
managing General Partner of the Partnership.
3. All references contained in the Partnership Agreement
to CCEC as a General Partner of the Partnership are hereby
amended to reflect the assignment and transfer to ConCap and the
election by the Limited Partners of ConCap as the sole managing
General Partner of the Partnership. To the extent not
inconsistent with the foregoing, ConCap shall also be the sole
Corporate General Partner of the Partnership.
4. The address of ConCap, the sole managing General
Partner of the Partnership, is as follows: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
5. The principal place of business of the Partnership has
been changed to the following address:
c/o ConCap Equities, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
6. The following Section 8.06 is hereby added to the
Partnership Agreement:
“8.06 Change of Control of Corporate General Partner. Prior to October 23, 1995
(the “Restriction Period”), no change of control of the Corporate General Partner may
occur unless approved in advance by Limited Partners holding at least fifty-one
percent (51%) of the Units. For purposes hereof, a change of control of the Corporate
General Partner shall mean the transfer, sale, assignment, pledge or other disposition
in any transaction or transactions, whether directly or indirectly (including, but not
limited to, any of the foregoing indirectly occurring as the result of any transfer,
sale, assignment, pledge or other disposition of the capital stock or other ownership
interest in any
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entity
owning capital stock of the Corporate General Partner), considered cumulatively during the Restriction Period, of more than
fifty-one percent (51%) of the outstanding capital stock of the Corporate General
Partner; provided, however, that the foregoing shall not prohibit or require approval
for the transfer, sale, assignment, pledge or other disposition at any time of any
capital stock of the Corporate General Partner to (i) any corporation or partnership
acquiring all the assets of the Corporate General Partner having substantially the
same beneficial owners as the Corporate General Partner as of October 23, 1990, (ii)
any affiliate of the Corporate General Partner as of October 23, 1990, (iii) any
shareholder of the Corporate General Partner as of October 23, 1990, or (iv) any
member of the immediate family of any person who was a shareholder of the Corporate
General Partner as of October 23, 1990, or any trust formed for the benefit of such
immediate family member.”
7. The Partnership Agreement is hereby amended in all
other respects, if any, necessary to conform with the amendments
set forth in this Amendment. In the event any conflict or
apparent conflict between any of the provisions of the
Partnership Agreement as amended by this Amendment, such
conflicting provisions shall be reconciled and construed to give
effect to the terms and intent of this Amendment. Except as
amended hereby, the Partnership Agreement shall continue,
unmodified, and in full force and effect.
8. This Amendment shall be governed in accordance with the
laws of the State of California.
9. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original and all
of which shall constitute one document.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth
above.
| “CCEC”: | ||||
| CONSOLIDATED CAPITAL EQUITIES CORPORATION, a Colorado corporation | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇, President | ||||
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| “CONCAP”: | ||||
| CONCAP EQUITIES, INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ C. ▇▇▇ ▇▇▇▇▇▇ | |||
| C. ▇▇▇ ▇▇▇▇▇▇, Vice President | ||||
| “THE LIMITED PARTNERS”: | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇, the President of Consolidated Capital Equities Corporation, agent and attorney-in-fact for each Limited Partner of the Partnership | ||||
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