AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF UNITED DEVELOPMENT CO., L.P. - 97.2
As of this 30th day of April, 1998, the parties, having previously
formed a limited partnership under the Tennessee Limited Partnership Act (the
"Act") have agreed to amend and restate the Partnership Agreement as follows:
RECITALS
WHEREAS, on August 28, 1997, a Certificate of Limited Partnership (the
"Certificate") was recorded with the Secretary of State naming United
Development Corporation as the general partner (the "General Partner").
WHEREAS, United Development Co., L.P. - 97.2 (the "Partnership") was
formed as a Tennessee limited partnership pursuant to an Agreement of Limited
Partnership dated November 25, 1997 (the "Original Agreement") by and between
Xxxxxx X. Xxxxxxx, Xx., and Jo Xxxxx Xxxxxxx, as the original general partners
(collectively the "Original General Partner") and United Development
Corporation, as the limited partner (the "Original Limited Partner").
WHEREAS, the Parties desire to amend and restate the Original Agreement
to provide for (i) the withdrawal from the Partnership of the Original Limited
Partner, (ii) the admission of WNC Housing Tax Credit Fund VI, L.P., Series 5, a
California limited partnership, as the Investment Limited Partner, (iii) the
revisal of the Original Agreement to reflect the certified General Partner as
stated in the Certificate, and (iv) more fully set forth the rights and
obligations of the Partners.
In consideration of the mutual agreements set forth herein, it is
agreed and certified, and the Original Agreement is hereby amended and restated
in its entirety as follows:
1. Name. The name of the Partnership is United Development Co., L.P. -
97.2 (the "Partnership").
2. Business. The Partnership has been organized for the following
purposes:
(a) To acquire the land for and develop 20 new single family housing
units located in Memphis, Tennessee, and to finance, hold, own, maintain,
improve, lease, operate and if appropriate, sell or dispose of such (the
"Project");
(b) To perform any act necessary or convenient to accomplish, or in
connection with, the foregoing purpose; and
(c) To engage in any lawful act or activity for which a limited
partnership may be organized under the laws of the State of Tennessee.
3. Principal Place of Business. The Partnership's principal place of
business is at: 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000.
4. Withdrawal of Original Limited Partner and Admission of Investment
Limited Partner. United Development Corporation hereby withdraws from the
Partnership as a limited partner. WNC Housing Tax Credit Fund VI, L.P.,
Series 5, hereby is admitted as the investment limited partner (the "Investment
Limited Partner") of the Partnership.
5. Name, Address and Limited Partnership's Interest of Each Partner:
The names, addresses and Partnership interests of the partners of the
Partnership (the "Partners") as set forth on Exhibit "A" attached
hereto.
6. Term. The term of the Partnership shall be from the date hereof,
until dissolution, which shall be the earliest to occur of:
(a) December 31, 2055; or
(b) Upon the written consent or affirmative vote of the limited
partners of the Partnership (the "Limited Partners") to dissolve and
terminate the Partnership; or
(c) Upon the disposition of all interests in all Partnership
assets; or
(d) Upon the dissolution, bankruptcy, or insolvency of the
General Partner or substitute General Partner.
7. Capital Contributions. The Partners have contributed the amounts
described on Exhibit "A" to the capital of the Partnership.
8. Limitation on Liability of Investment Limited Partner. The liability
of the Investment Limited Partner shall be limited to its capital contribution
stated on Exhibit "A". The Investment Limited Partner shall have no other
liability to contribute money to, or in respect of the liabilities or
obligations of the Partnership, nor shall the Investment Limited Partner be
personally liable for any obligations of the Partnership. The Investment
Limited Partner shall not be obligated to make any loans to the Partnership.
9. Capital Account Maintenance. For all purposes of this Partnership
Agreement and throughout the entire term of the Partnership, (i) capital
account balances shall be maintained in accordance with the rules of Section
1.704-1(b)(2)(iv) of the Treasury Regulations, (ii) liquidating distributions
shall be made in accordance with the requirements of Section 1.804-1(b)
(2)(ii)(b)(2) of the Treasury Regulations and (iii) the Partnership shall
comply with the qualified income offset requirements of Section 1.704-1(b)
(2)(ii)(d) of the Treasury Regulations.
10. Profits, Losses and Distributions. Partnership profits and losses shall
be allocated and Partnership distributions shall be made to the Partners
in accordance with their Partnership interests as set forth on
Exhibit "A".
11. Power and Authority of General Partner. The General Partner of the
Partnership shall have complete and exclusive control over the day-to-day
management of the Partnership's business and affairs, and the Investment Limited
Partner shall have no right to participate in the management or conduct of the
Partnership's business or affairs nor any power or authority to act for or on
behalf of the Partnership in any respect whatsoever.
12. Limitation on General Partner's Power and Authority. The General
Partner shall not do any of the following:
(a) Act in contravention of this Agreement or the Act;
(b) Act in any manner which would make it impossible to carry
on the ordinary business of the Partnership;
(c) Confess a judgment against the Partnership;
(d) Possess Partnership property, or assign rights in specific
Partnership property, for other than the exclusive benefit of the Partnership,
or commingle the funds of the Partnership with the funds of any other person or
entity;
(e) Admit a person or entity as a General Partner or as a
Limited Partner of the Partnership without the written consent or affirmative
vote of the Investment Limited Partner;
(f) Except in connection with the winding up of the Partnership,
sell, transfer, encumber, or exchange in a single transaction or a series of
transactions substantially all of the assets acquired by the Partnership without
the written consent or affirmative vote of the Investment Limited Partner; or
(g) Obligate the Partnership to any extraordinary or to any
transaction not in normal course of the day-to-day management and operation
of the Partnership's business as set forth in Section 2 hereof without the
written consent or affirmative vote of the Investment Limited Partner.
13. Obligation of the General Partner. The General Partner shall be
obligated to provide to the Investment Limited Partner on or before July 31,
1998: (i) all due diligence materials with respect to the Project and the
Partnership required by the Investment Limited Partner and its investors and
satisfactory in form and substance to the Investment Limited Partner in its sole
discretion.
14. Removal of Investment Limited Partner. The Interest of the Investment
Limited Partner shall be liquidated upon the General Partner's payment to the
Investment Limited Partner of an amount equal to the capital contribution stated
on Exhibit "A" if, on or before August 31, 1998, the Investment Limited Partner
has not (i) executed a First Amended and Restated Agreement of Limited
Partnership of the Partnership (the "First Amended Agreement") in a form
satisfactory to the Investment Limited Partner and (ii) paid to the Partnership
an initial Capital Contribution in such amount as shall be agreed to by the
General Partner and the Investment Limited Partnership. Notwithstanding the
foregoing, the General Partner shall not have the right to purchase the
Investment Limited Partner's Interest if the delay in executing the First
Amended Agreement and making an initial Capital Contribution was caused by the
General Partner's failure to timely deliver the due diligence documents required
by the Investment Limited Partner.
15. Amendments. This Agreement may be amended at any time by the written
consent or affirmative vote of the General Partner and the Investment Limited
Partner.
16. Time of Admission. For all purposes of this Agreement, including but
not limited to Section 8, a Partner shall be deemed to have been admitted to
the Partnership as of the first day of the month in which it becomes a
Partner; provided, however, that an amendment to the Internal Revenue Code
of 1986, as amended (the "Code") is adopted or if Treasury Regulations are
issued which would require, in the opinion of the tax counsel to the
Partnership, that a Partner be deemed admitted on a date other than as of
the first day of such month, then the General Partner shall select a permitted
admission date which is most favorable to a majority-in interest of the Limited
Partners.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original copy and all of which together
shall constitute one agreement binding on all parties hereto, notwithstanding
that all parties shall not have signed the same counterpart.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date and year written above.
GENERAL PARTNER
United Development Corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx, Xx.,
President
ORIGINAL LIMITED PARTNER
United Development Corporation
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx, Xx.,
President
ORIGINAL GENERAL PARTNER
/s/ Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxxx, Xx.
/s/ Jo Xxxxx Xxxxxxx
Jo Xxxxx Xxxxxxx
INVESTMENT LIMITED PARTNER
WNC Housing Tax Credit Fund VI, L.P., Series 5
By: WNC & Associates, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx,
Senior Vice President
EXHIBIT "A"
TO THE AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP
OF UNITED DEVELOPMENT CO., L.P. - 97.2
General Partners Partnership Capital Contribution
Interest
Xxxxxx X. Xxxxxxx, Xx. .01% $100
Jo Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Investment Limited Partner
WNC Housing Tax Credit 99.99% $100
Fund VI, L.P., Series 5
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
