SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3
Exhibit 3.5
SECOND AMENDMENT
TO THE
SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3
TO THE
SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3
THIS SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3 (this “Amendment”) is entered into effective as of
the 23rd day of October, 1990, by and between ConCap Equities, Inc., a Delaware corporation
(“ConCap”), and the Limited Partners (herein so called).
WHEREAS, CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3, a California limited partnership
(the “Partnership”), exits pursuant to that certain SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT dated as of July l5, 1985 (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 (the “Proxy Statement”), Consolidated Capital Equities Corporation, a Colorado
corporation (“CCEC”), 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 Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
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;
WHEREAS, the Partnership Agreement has previously been amended by that certain FIRST AMENDMENT
TO THE SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF CONSOLIDATED CAPITAL
INSTITUTIONAL PROPERTIES/3 dated as of October 23, 1990 (the “First Amendment”), pursuant to which,
among other things, ConCap was admitted to the Partnership as the sole managing General Partner of
the Partnership and CCEC ceased to be a Partner in the Partnership;
WHEREAS, CCEC and ConCap, in connection with the assignment of CCEC’s interest in the
Partnership to ConCap (the “Assigned Interest”) executed that certain ASSIGNMENT AND ASSUMPTION
AGREEMENT (CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3) as of October 23, 1990 (the “Assignment
Agreement”), pursuant to which (i) the Assigned Interest was received by ConCap free and clear of
all liens, pledges, mortgages, security interests, charges, adverse claims, interests, or other
encumbrances
of any kind, nature or description whatsoever (collectively, “Liabilities”), and (ii)
CCEC agreed
1
to remain liable for all liabilities and obligations that arose or were incurred prior
to October 23, 1990 (“Past Obligations”);
WHEREAS, to clarify that the Assigned Interest was received by ConCap free and clear of all
Liabilities and that CCEC remained liable for all Past Obligations following its transfer of the
Assigned Interest to ConCap, it is necessary to amend the Partnership Agreement, as heretofore
amended, in the manner provided herein.
NOW, THEREFORE, in consideration of the premises set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the
parties hereby agree as follows:
1. Section 9.02 of the Partnership Agreement is hereby amended by adding a new subsection (f),
which shall provide as follows:
“(f) For purposes of determining the obligation of ConCap Equities, Inc.
(‘ConCap’), as the General Partner, to make any contribution to the Partnership
required pursuant to Section 9.02(d) above, it is hereby acknowledged and agreed
that ConCap shall not have any liability whatsoever to make capital contributions to
the Partnership under Section 9.02(d) except to the extent that the deficit balance
in the capital account of the General Partner (as determined pursuant to Articles IV
and IX) upon the liquidation of the Partnership exceeds the sum of (1) the negative
balance that existed in the capital account of CCEC as of the date (the ‘Effective
Date’) on which CCEC assigned its interest in the Partnership to ConCap (the
‘Existing Negative Balance’) plus (2) the General Partner’s share (as determined
pursuant to subparagraph (ii) below) of the organization and syndication costs
(‘Section 709 Costs’) incurred by the Partnership prior to the Effective Date, but
only to the extent that the General Partner’s capital account was not decreased by
its share of such costs prior to the Effective Date (the amount in (2) being herein
called the ‘Section 709 Amount’ and the sum of (1) and (2) being herein called the
‘CCEC Maximum Amount’). In connection with and to give effect to the foregoing, it
is hereby agreed that, as of the Effective Date, the following accounting entries
shall be made to give effect to the foregoing provisions of this Section 9.02(f),
the provisions of that certain Assignment and Assumption Agreement (Consolidated
Capital Institutional Properties/3) entered into as of October 23, 1990, between
CCEC and ConCap, and that certain Information Statement and Solicitation of Limited
Partners dated August 10, 1990:
(i) As of the Effective Date, CCEC shall be deemed to have a continuing
obligation to pay to the Partnership, upon the liquidation of the Partnership, an
amount of cash equal to the lesser of (A) the CCEC Maximum Amount or (B)
the deficit balance that exists in the capital account of the General Partner
upon the liquidation of the Partnership (determined from the
2
inception of the Partnership as though there were a single General Partner
throughout the term of the Partnership).
(ii) To determine the CCEC Maximum Amount, ConCap has determined, in good
faith, that the Section 709 Amount equals $112,985.00. Such determination was
made on the assumption that, as of the Effective Date, the Partnership had
$11,298,469.00 of Section 709 Costs that had not yet been amortized or deducted
and that the General Partner’s (and thus CCEC’s) share thereof was $112,985.00.
(iii) ConCap’s obligation pursuant to Section 9.02(d) above shall be limited
to the negative balance in its capital account, as determined pursuant to this
Section 9.02(f)(iii). The purpose of this Section 9.02(f)(iii) is to ensure that
(A) ConCap’s capital account is not decreased by (and does not in any way
reflect) any Section 709 Costs incurred prior to the Effective Date and (B)
ConCap’s obligation to make a capital contribution under Section 9.02(d) is
limited to its share of losses incurred after the Effective Date. Therefore,
without limiting the foregoing provisions of this Section 9.02(f) and without
limiting CCEC’s obligation to make a payment to the Partnership pursuant to
Section 9.02(f)(i) above, and notwithstanding any provision herein to the
contrary regarding the measurement of capital accounts, as of the Effective Date,
ConCap’s capital account shall be zero. ConCap’s capital account shall, from and
after the Effective Date, be increased by all capital contributions made by it to
the Partnership and by all amounts of Net Profits (and other items of income)
allocated to it under Article III above (or elsewhere in this Agreement in its
capacity as a Partner) and shall be decreased by all amounts of Net Losses (and
other items of loss and deduction) allocated to ConCap under Article III above
(except to the extent such losses are attributable to Section 709 Costs which
were incurred prior to the Effective Date) and by all amounts of Distributable
Cash from Operations and Surplus Funds that are distributed to ConCap pursuant to
Article III above (except to the extent any such distribution is deemed received
by ConCap in a capacity other than as a Partner). The capital account adjustments
made by this Section 9.02(f)(iii) are not intended to have any effect on the
manner in which the Partnership allocates Net Profits or Net Losses or the manner
in which Distributable Cash from Operations or Surplus Funds are to be
distributed to the Partners; rather, the sole effect of these adjustments is upon
the manner in which ConCap’s obligation to make capital contributions pursuant to
Section 9.02(d) upon the liquidation of the Partnership is to be measured and
determined. To the extent necessary to give effect to this Section 9.02(f)(iii),
all deductions and losses of the Partnership that are attributable to Section 709
Costs shall be separately allocated to the Partners, such allocations to be made
99% to the Limited Partners and 1% to the General Partner, with CCEC having the
liability to pay to the Partnership that portion of the deficit balance in the
General Partner’s
3
capital account that is attributable to such costs, as described in Section
9.02(f)(i) above.”
2. 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, as amended by the
First Amendment, shall continue, unmodified, and in full force and effect.
3. THIS AMENDMENT SHALL BE GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
4. This Amendment may be executed in multiple counter parts, 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.
| “CONCAP”: CONCAP EQUITIES, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Vice President | ||||
| “THE LIMITED PARTNERS”: |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Vice President, of ConCap | ||||
| Equities, Inc., agent and attorney-in-fact for each Limited Partner of the Partnership | ||||
4
