FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
XXXXXX PLACE, L.P.
This First Amendment to the Amended and Restated Agreement of Limited
Partnership of Xxxxxx Place, L.P., a Georgia limited partnership (the "First
Amendment") is being entered into as of the date written below by and between BC
Holdings, LLC, as the general partner (the "General Partner"), WNC Holding, LLC,
a California limited liability company, as the limited partner (the "Limited
Partner") and WNC Housing, L.P., a California limited partnership as the special
limited partner (the "Special Limited Partner"). The General Partner, Limited
Partner and Special Limited Partner may collectively be referred to as the
Partners or may individually be referred to as a Partner.
RECITALS
WHEREAS, on April 12, 0000, Xxxxxx Xxxxx, L.P., a Georgia Limited
Partnership (the "Partnership") recorded a certificate of limited partnership
with the Georgia Secretary of State.
WHEREAS, on April 11, 2001, a partnership agreement was entered into by
and between the General Partner and Xxxxx. X. Xxxxxx as the original limited
partner (the "Original Partnership Agreement").
WHEREAS, on October 25, 2001, the Original Partnership Agreement was
amended and restated to provide, in part, for the withdrawal of the original
limited partners and for the admission of the Limited Partner and the Special
Limited Partner (the "Amended and Restated Partnership Agreement"). Any
capitalized terms not defined in this First Amendment shall have the meaning
ascribed in the Amended and Restated Partnership Agreement.
NOW THEREFORE, in consideration of the foregoing Recitals, which are a
part of this Amendment, and the mutual promises, covenants and undertakings
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Partners do hereby agree to
amend, in part, the Amended and Restated Partnership Agreement as follows:
Sections 1.29, 1.30 and 1.31 are amended in their entirety to provide as
follows:
Section 1.29 "Construction Inspector" shall mean EMG and/or
Construction Analysis Systems, Inc., or any successor thereto with the Consent
of the Special Limited Partner. The Construction Inspector shall make regular
inspections of the construction site, but in no event less than once a month, to
confirm that construction of the Improvements is in conformance with the Plans
and Specifications. The Construction Inspector will sign-off on all draw
requests made by the Contractor and provide the documents specified in Section
14.3(a) of this Agreement. The Partnership shall budget for, and pay the cost
of, the Construction Inspector. If there is, at any time, an identity of
interest between the Partnership and the Construction Inspector, or between the
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Contractor and the Construction Inspector, then the General Partner will
immediately relieve the Construction Inspector of any inspecting duties. The
General Partner shall dismiss the Construction Inspector for cause if the
Construction Inspector fails to detect, or fails to notify the General Partner
and Special Limited Partner within five business days of a draw request, that:
(a) the Construction Budget is not In-Balance; (b) a change order; (c) any
modification to the Plans and Specifications; or (d) any modification to a
construction line item from the approved Construction Budget as specified in the
Development, Construction and Operating Budget Agreement entered into as of even
date herewith.
Section 1.30 "Construction Lender" shall mean; (a) Georgia Housing and
Finance Authority ("GHFA") or any successor thereto (b) Unity National Bank or
any successor thereto.
Section 1.31 "Construction Loan" shall mean (a) the construction phase
of the loan obtained from GHFA in the principal amount of $2,000,000 at an
interest rate equal to zero percent (0%) for a term of 24 months to provide
funds for the acquisition, renovation and/or construction and development of the
Apartment Housing and at the conclusion of GHFA's construction loan term, the
construction loan will convert to a Mortgage Loan (b) the loan from Unity
National Bank in the amount of $400,000 at an interest rate of prime plus 1 1/2
% for a term of 24 months to provide funds for the acquisition, renovation
and/or construction and development of the Apartment Housing. Where the context
admits, the term "Construction Loan" shall include any deed, deed of trust,
note, security agreement, assumption agreement or other instrument executed by,
or on behalf of, the Partnership or General Partner in connection with the
Construction Loan.
Section 1.36 is amended in its entirety to provide as follows:
Section 1.36 "Developer" shall mean Xxxxx X. Xxxxxx.
Sections 1.62 and 1.63 are amended in their entirety to provide as follows:
Section 1.62 "Mortgage" or "Mortgage Loan" shall mean the permanent
nonrecourse financing wherein the Partnership promises to pay: (a) Georgia
Housing and Finance Authority ("GHFA"), or its successor or assignee, the
principal sum of $2,000,000, which loan amount shall convert to a Mortgage Loan
from the Construction Loan, plus interest on the principal at 1% per annum over
a term of 30 years with fixed debt service payments according to the schedule
attached hereto as Exhibit "J"; (b) Rural Development, or it's successor or
assignee the principal sum of $400,000, plus interest on the principal at 1% per
annum over a term of 30 years. Where the context admits, the term "Mortgage" or
"Mortgage Loan" shall include any mortgage, deed, deed of trust, note,
regulatory agreement, security agreement, assumption agreement or other
instrument executed in connection with the Mortgage which is binding on the
Partnership; and in case any Mortgage is replaced or supplemented by any
subsequent mortgage or mortgages, the Mortgage shall refer to any such
subsequent mortgage or mortgages. Prior to closing the Mortgage, the General
Partner shall provide to the Special Limited Partner a draft of the Mortgage
documents for review and approval. The Mortgage funds shall be used to retire
the Unity National construction loan and if there are any funds remaining the
Mortgage funds shall be used to retire any outstanding hard construction costs
including labor and materials.
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Section 1.63 "Mortgage Lender" shall mean the Georgia Housing and
Finance Authority ("GHFA") and Rural Development.
Sections 1.81, 1.82 and 1.83 are amended in their entirety to provide as
follows:
Section 1.81 "Projected Annual Georgia Credits" shall mean Georgia Credits
in the amount of $73,996 for 2003, $217,898 for 2004, $223,895 for each of the
years 2005 through 2012, and $155,897 for 2013, which the General Partner has
projected to be the total amount of Georgia Credits which will be allocated to
the Limited Partner by the Partnership, constituting 99.98% of the aggregate
amount of Georgia Credits of $2,239,400 to be available to the Partnership.
Section 1.82 "Projected Annual LIHTC" shall mean LIHTC in the amount of
$73,996 for 2003, $217,898 for 2004, $223,895 for each of the years 2005 through
2012, and $155,897 for 2013, which the General Partner has projected to be the
total amount of LIHTC which will be allocated to the Limited Partner by the
Partnership, constituting 99.98% of the aggregate amount of LIHTC of $2,239,400
to be available to the Partnership.
Section 1.83 "Projected Annual Tax Credits" shall mean LIHTC and Georgia
Credits in the amount of $147,992 ($73,996 each of LIHTC and Georgia Credits)
for 2003, $435,796 ($217,898 each of LIHTC and Georgia Credits) for 2004,
$447,790 ($223,895 each of LIHTC and Georgia Credits) for each of the years 2005
through 2012, and $311,794 ($155,897 each of LIHTC and Georgia Credits) for
2013, which the General Partner has projected to be the total amount of LIHTC
and Georgia Credits which will be allocated to the Limited Partner by the
Partnership, constituting 99.98% of the aggregate amount of Tax Credits of
$4,478,800 ($2,239,400 each of LIHTC Amount and Georgia Credits) to be available
to the Partnership.
Section 6.2 (a) is amended in its entirety to provide as follows:
Section 6.2 Construction Obligations.
(a) The General Partner hereby guarantees lien free Completion of
Construction of the Apartment Housing on or before May 1, 2003 ("Completion
Date") at a total development cost of not more than $4,550,000 ("Development
Budget"), which includes all hard and soft costs incident to the acquisition,
development and construction of the Apartment Housing in accordance with the
Construction Budget, the Construction Contract, and the Project Documents. At
any time during construction and prior to Permanent Mortgage Commencement, if
the Special Limited Partner ascertains that the Development Budget exceeds the
sum of the Capital Contributions and the Mortgage amount then the General
Partner shall be responsible for and shall be obligated to pay the difference
thereof within thirty days of receiving written notice from the Special Limited
Partner except as otherwise provided for in this Agreement. Any advances by the
General Partner pursuant to the previous sentence shall not be repayable, shall
not change the Interest of any Partner in the Partnership and shall be
considered a guaranteed payment to the Partnership for cost overruns. Upon such
notice from the Special Limited Partner, the General Partner shall advance the
requested funds into the Construction Lender's construction account.
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Section 7.2 is amended in its entirety to provide as follows:
Section 7.2 Capital Contribution of Limited Partner.
The Limited Partner shall make a Capital Contribution in the amount of
$2,127,049 (representing $1,679,214 for the LIHTC and $447,835 for the Georgia
Credits), as may be adjusted in accordance with Section 7.4 of this Agreement,
in cash on the dates and subject to the conditions hereinafter set forth.
(a) $301,312 (representing $237,873 for the LIHTC and $63,439 for the
Georgia Credits) shall be payable upon the Limited Partner's receipt and
approval of the following documents:
(1) a legal opinion in a form substantially similar to the form
of opinion attached hereto as Exhibit "B" and incorporated herein by this
reference;
(2) a fully executed Certification and Agreement in the form
attached hereto as Exhibit "C" and incorporated herein by this reference;
(3) a copy of a title commitment, (in a form and substance
satisfactory to the Special Limited Partner) constituting an agreement by such
title company to issue the Title Policy within fifteen working days. The title
commitment will show the Apartment Housing to be free from liens except the
Construction Loan and free from other exceptions not previously approved by the
Special Limited Partner.
(b) $185,001 (representing $146,058 for the LIHTC and $38,943 for the
Georgia Credits), less an amount equal to the Bridge Fee, if applicable, and the
Limited Partner's receipt and approval of the following documents:
(1) a copy of the recorded grant deed (warranty deed);
(2) fully executed Construction Loan documents;
(3) the construction draw disbursement procedure;
(4) Insurance required during construction;
(5) A legal opinion is form acceptable to the Special Limited
Partner stating that, with the exception of the construction phase of the
Mortgage Loan described at section 1.62(a) (which phase is described at Section
1.31 as the Construction Loan), neither the General Partner(s) of the
Partnership nor the Limited Partner nor the Special Limited Partner will have
any liability for the Mortgage represented thereby, and the Mortgage Lender will
look only to its security in the Apartment Housing for repayment of the Mortgage
Loan;
(6) all additional documents identified in the list attached
hereto as Exhibit "I"; and
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(7) any documents previously not provided to the Limited Partner
but required pursuant to this Section 7.2 and 14.3(a) and (b).
(c) $300,000 (representing $236,850 for the LIHTC and $63,150 for the
Georgia Credits) shall be payable on or after June 1, 2002 in monthly
installments upon the Special Limited Partner's receipt and approval of the
construction draws pursuant to the Partnership's construction draw disbursement
procedure:
(1) the construction documents required pursuant to Section
14.3(a) of this Agreement, if not previously provided to the Limited Partner;
(2) any documents previously not provided to the Limited Partner
but required pursuant to this Section 7.2 and 14.3(a) and (b); and
(3) a determination by the Special Limited Partner that
construction financing is In-Balance;
(d) $493,654 (representing $389,740 for the LIHTC and $103,914 for the
Georgia Credits) shall be payable on or after July 1, 2002 in monthly
installments upon the Special Limited Partner's receipt and approval of the
construction draws pursuant to the Partnership's construction draw disbursement
procedure:
(1) the Construction Inspector's certification of twenty-five
percent completion of the total construction, but not payable before
July 1, 2002;
(2) the construction documents required pursuant to
Section 14.3(a) of this Agreement, if not previously provided to the Limited
Partner;
(3) any documents previously not provided to the Limited Partner
but required pursuant to this Section 7.2 and Sections 14.3(a) and (b); and
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(4) a determination by the Special Limited Partner that
construction financing is In-Balance;
(e) $403,463 (representing $318,534 for the LIHTC and $84,929 for the
Georgia Credits) shall be payable in monthly installments upon the Special
Limited Partner's receipt and approval of the construction draws pursuant to the
Partnership's construction draw disbursement procedure:
(1) the Construction Inspector's certification of ninety percent completion of
the total construction;
(2) the construction documents required pursuant to
Section 14.3(a) of this Agreement, if not previously provided to the Limited
Partner;
(3) any documents previously not provided to the Limited Partner
but required pursuant to this Section 7.2 and Sections 14.3(a) and (b); and
(4) a determination by the Special Limited Partner that
construction financing is In-Balance;
(f) $443,619 (representing $350,159 for the LIHTC and $93,460 for the
Georgia Credits) shall be payable upon the Limited Partner's receipt and
approval of the following documents:
(1) a certificate of occupancy (or equivalent evidence of local
occupancy approval if a permanent certificate is not available) on all the
apartment units in the Apartment Housing;
(2) a completion certification in a form substantially similar
to the form attached hereto as Exhibit "D" and incorporated herein by this
reference, indicating that the Improvements have been completed in accordance
with the Project Documents;
(3) a letter from the Contractor in a form substantially similar
to the form attached hereto as Exhibit "F" and incorporated herein by this
reference stating that all amounts payable to the Contractor have been paid in
full and that the Partnership is not in violation of the Construction Contract;
(4) a construction closeout binder, which shall include, but is
not limited to, as-built drawings, all operating manuals, and all manufacturers'
warranty agreements. In addition, the Contractor shall provide the Partnership a
one-year warranty on all parts, materials and work-quality;
(5) Insurance required during operations;
(6) an endorsement to the Title Policy dated no more than ten
days prior to the scheduled Capital Contribution providing an as-built ALTA
survey and confirming that there are no liens, claims or rights to a lien or
judgments filed against the property or the Apartment Housing during the time
period since the issuance of the Title Policy referenced above in
Section 7.2(a);
(7) Completion of Construction;
(8) the current rent roll evidencing a minimum 90% occupancy by
Qualified Tenants for 90 consecutive days immediately prior to funding;
(9) copies of all initial tenant files including completed
applications, completed questionnaires or checklist of income and assets,
documentation of third party verification of income and assets, and income
certification forms (LIHTC specific) collected by the Management Agent, or
General Partner, verifying each tenant's eligibility pursuant to the Minimum
Set-Aside Test;
(10) copies of the executed lease agreement with the tenants;
(11) executed documentation from the Construction Lender
converting the Construction Loan to the Mortgage Loan;
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(12) a copy of the declaration of restrictive covenants/extended
use agreement entered into between the Partnership and the State Tax Credit
Agency;
(13) an audited construction cost certification (which includes
an itemized cost breakdown and sufficient information to determine compliance
with applicable Internal Revenue Service and Treasury Department guidance);
(14) the Accountant's final Tax Credit certification in a form
substantially similar to the form attached hereto as Exhibit "E" and
incorporated herein by this reference;
(15) Debt Service Coverage of 1.10 for 90 consecutive days
immediately prior to funding;
(16) Internal Revenue Code Form 8609, or any successor form, and
the Partnership's tax return for the first year in which the Tax Credits are
claimed; and
(17) any documents previously not provided to the Limited
Partner but required pursuant to this Section 7.2 and Sections 14.3(a) and (b).
Section 7.3 (b), (c) and (d) are amended in their entirety to provide as
follows:
Section 7.3 Repurchase of Limited Partner's Interest.
(b) the Partnership shall fail to cause the Apartment Housing to be
placed in service by May 1, 2003;
(c) the Partnership shall fail to achieve 90% occupancy of the Apartment
Housing by Qualified Tenants by March 1, 2004;
(d) the Partnership shall fail to obtain Permanent Mortgage Commencement
by March 1, 2004;
Section 7.4 (a) and (d) are amended in their entirety to provide as follows:
Section 7.4 Adjustment of Capital Contributions.
(a) The amounts of the Limited Partner's and the Special Limited Partner's
Capital Contributions were determined in part upon the amount of Tax Credits
that were expected to be available to the Partnership, and were based on the
assumption that the Partnership would be eligible to claim, in the aggregate,
the Projected Tax Credits. If the anticipated amounts of Projected Tax Credits
to be allocated to the Limited Partner and Special Limited Partner as evidenced
by IRS Form 8609, Schedule A thereto, provided to the Limited Partner and
Special Limited Partner are less than 99.99% of $2,239,400 for the LIHTC and
$2,239,400 for the Georgia Credits (the new Projected Tax Credit amounts, if
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applicable, shall be referred to as the "Revised Projected Tax Credits") then
the Limited Partner's and Special Limited Partner's Capital Contribution
provided for in Section 7.2 and Section 7.5 respectively shall be adjusted by
the amount which will make the total Capital Contribution to be paid by the
Limited Partner and Special Limited Partner to the Partnership equal to the sum
of $0.75 times the Revised Projected LIHTC plus $0.20 times the Revised
Projected Georgia Credits amount so anticipated to be allocated to the Limited
Partner and Special Limited Partner. If any Capital Contribution adjustment
referenced in this Section 7.4(a) is a reduction which is greater than the
remaining Capital Contribution to be paid by the Partner whose Capital
Contribution is being adjusted, then the General Partner shall have ninety days
from the date the General Partner receives notice from either the Limited
Partner or the Special Limited Partner to pay the shortfall to the Partner whose
Capital Contribution is being adjusted. If the Capital Contribution adjustment
referenced in this Section 7.4(a) is an increase then the Partner whose Capital
Contribution is being adjusted shall have ninety days from the date the Limited
Partner and Special Limited Partner have received notice from the General
Partner to pay the increase.
(d) The General Partner has represented, in part, that the Limited Partner
will receive Projected Annual Tax Credits of $161,924 (representing $80,962 each
of LIHTC and Georgia Credits) in 2003 and $433,796 (representing $216,898 each
of LIHTC and Georgia Credits) in 2004. In the event the 2003 or 2004 Actual Tax
Credits are less than projected then the Limited Partner's Capital Contribution
shall be reduced, by an amount equal to 75% times the difference between the
Projected Annual LIHTC for 2003 or 2004 and the Actual LIHTC for 2003 or 2004,
and by an amount equal to 20% times the difference between the Projected Annual
Georgia Credits for 2003 or 2004 and the Actual Georgia Credits for 2003 or
2004. If the 2003 or 2004 Actual Tax Credits are less than projected, then the
Special Limited Partner's Capital Contribution shall be reduced following the
same equation referenced in the preceding sentence. If, at the time of
determination thereof, the Capital Contribution adjustment referenced in this
Section 7.4(d) is greater than the balance of the Limited Partner's or Special
Limited Partner's Capital Contribution payment which is then due, if any, then
the excess amount shall be paid by the General Partner to the Limited Partner
and/or the Special Limited Partner within sixty days of the General Partner
receiving notice of the reduction from the Limited Partner and/or the Special
Limited Partner.
Section 8.3 is amended in its entirety to provide as follows:
Section 8.3 Operating Deficit Reserve Account.
The General Partner, on behalf of the Partnership, shall establish an
operating reserve account and shall deposit thereunto $86,720. Funds from the
operating deficit reserve will be used to fund Operating Deficits until the
expiration of the Operating Deficit Guarantee Period. Withdrawals from the
operating deficit reserve shall be made only with the Consent of the Special
Limited Partner, which Consent shall not be unreasonably withheld.
Section 13.2 (15), (16) and (17) are amended in their entirety to provide as
follows:
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Section 13.2 Removal of General Partner.
(15) failed to place the Apartment Housing in service by
May 1, 2003;
(16) failed to achieve 90% occupancy of the Low Income Units and
90% of the Market Rate Units by March 1, 2004;
(17) failed to obtain Permanent Mortgage Commencement by
March 1, 2004; or
The Partnership shall be continued pursuant to the Act and on the same
terms and conditions as set forth in the Amended and Restated Partnership
Agreement amended only as specifically set forth herein.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, this First Amendment to the Amended and Restated
Agreement of Limited Partnership of Xxxxxx Place, L.P., a Georgia limited
partnership, is made and entered into as of May 20, 2002.
GENERAL PARTNER:
BC Holdings, LLC
By: /s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
President
LIMITED PARTNER:
WNC Holding, LLC
By: WNC & ASSOCIATES, INC.,
Managing Member
By: /s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx,
Executive Vice President
SPECIAL LIMITED PARTNER:
WNC Housing, L.P.
By: WNC & Associates, Inc.,
General Partner
By: /s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx,
Executive Vice President
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