SECOND AMENDMENT
TO THE AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
CATOOSA SENIOR VILLAGE, L.P.
This SECOND AMENDMENT to the Amended and Restated Agreement of Limited
Partnership of CATOOSA SENIOR VILLAGE, L.P., a Georgia limited partnership (the
"Second Amendment") is made and entered into effective for all purposes and in
all respects as of the 30th day of June, 2003 (the "Effective Date') by and
among BC HOLDINGS, LLC, as the general partner (the "General Partner") and TIFT
COUNTY RESIDENTIAL HOUSING CORPORATION as the non-profit general partner
(collectively, the "General Partner"), WNC Housing Tax Credit Fund VI, L.P.,
Series 10, a California limited partnership, as the limited partner (the
"Limited Partner"), WNC GEORGIA TAX CREDITS XXXII, L.P., as the Georgia Limited
Partner (the "Georgia Limited Partner"), and WNC HOUSING, L.P., a California
limited partnership as the special limited partner (the "Special Limited
Partner").
RECITALS
WHEREAS, on April 13, 2000, Catoosa Senior Village, L.P., a Georgia
Limited Partnership (the "Partnership") recorded a certificate of limited
partnership with the Georgia Secretary of State.
WHEREAS, on April 13, 2000, 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 WNC Holding, LLC as a limited partner
and WNC Housing, L.P. as the special limited partner (the "Amended and Restated
Partnership Agreement").
WHEREAS, any capitalized terms not defined in this Second Amendment
shall have the meaning ascribed in the Amended and Restated Partnership
Agreement.
WHEREAS, on May 20, 2002, the Amended and Restated Partnership
Agreement was amended to provide for certain matters specified therein.
WHEREAS, WNC Holding, LLC desires to withdraw from the Partnership and
transfer its Interest to WNC Housing Tax Credit Fund VI, L.P., Series 10 in
accordance with Section 12(c) of the Amended and Restated Partnership Agreement.
WHEREAS, the Partners desire to admit WNC Georgia Tax Credits XXXII,
L.P. as the Georgia Limited Partner with such rights and obligations as set
forth in this Amendment.
WHEREAS, the Partners desire to amend the Amended and Restated
Partnership Agreement in order to provide for (i) the admission of WNC Housing
Tax Credit Fund VI, L.P., Series 10 as the Limited Partner and WNC Georgia Tax
Credits XXXII, L.P. as the Georgia Limited Partner, (ii) payment of Capital
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Contributions by the Limited Partner, the Georgia Limited Partner and the
Special Limited Partner to the Partnership, (iii) allocation of Income, Losses,
Tax Credits, Georgia Tax Credits and distributions of Net Operating Income and
other cash funds of the Partnership among the Partners, (iv) the determination
of the respective rights, obligations and interests of the Partners to each
other and to the Partnership, (v) the continuation of the Partnership, and (vi)
certain other matters.
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:
I. Incorporation of Recitals. The above recital paragraphs are
incorporated and made a part of this Second Amendment.
II. Waiver of Meeting. The Partners hereby agree to amend the Amended and
Restated Partnership Agreement as set forth herein and do hereby
consent to this Second Amendment without convening a meeting of the
Partners as required by Article XVI of the Amended and Restated
Partnership Agreement.
III. Withdrawal of WNC Holding, LLC; Admission of WNC Housing Tax Credit
Fund VI, L.P., Series 10. WNC Holding, LLC hereby withdraws as a
limited partner and WNC Housing Tax Credit Fund VI, L.P., Series 10 is
hereby admitted as a Limited Partner in substitution thereof and hereby
assumes all rights and obligations of a Limited Partner.
IV. Admission of WNC Georgia Tax Credits XXXII, L.P. WNC Georgia Tax
Credits XXXII, L.P. is hereby admitted as the Georgia Limited Partner.
The Georgia Limited Partner shall be a different class from the Limited
Partner and, except as otherwise expressly stated in this Agreement,
shall not participate in any rights allocable to or exercisable by the
Limited Partner under this Agreement.
V. Other Amendments.
1. ARTICLE I is amended to add the following new definitions:
"Georgia Limited Partner" shall mean WNC Georgia Tax
Credits XXXII, L.P., and such other Persons as are admitted to
the Partnership as additional or substitute Georgia Limited
Partners pursuant to this Agreement.
"Projected Georgia Tax Credits" shall mean Georgia
Tax Credits in the aggregate amount of $2,663,160.
"Revised Projected Georgia Tax Credits" shall have
the meaning set forth in Section 7.4(a) hereof.
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2. Section 1.5 is deleted in its entirety.
3. Section 1.6 is amended in its entirety to provide as follows:
Section 1.6 "Actual Tax Credit" shall mean as of any
point in time, the total amount of LIHTC actually allocated by
the Partnership to the Limited Partner and not subsequently
recaptured or disallowed, representing 99.97% of the LIHTC
actually received by the Partnership, as shown on the
applicable tax returns of the Partnership,
4. Section 1.47 is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said section
shall read as follows:
Section 1.47 "In-Balance" shall mean, on any
occasion, when the amount of the undisbursed Construction Loan
and the undisbursed Capital Contributions of the Limited
Partner, Georgia Limited Partner and Special Limited Partner
required to be paid-in through and including the issuance of a
certificate of occupancy (or the local equivalent) are
sufficient in the Special Limited Partner's reasonable
judgment to pay all of the following sums: (a) all costs of
construction to achieve Completion of Construction; (b) all
costs of marketing, ownership, maintenance and leasing of the
Apartment Housing units; and (c) all interest and all other
sums accruing or payable under the Construction Loan
documents. In making a determination that the financing is
In-Balance, the Special Limited Partner will also consider
whether the undisbursed Capital Contributions of the Limited
Partner, the Georgia Limited Partner and Special Limited
Partner, the Mortgage and other sources of permanent financing
(but not Cash Receipts) are adequate to retire the
Construction Loan at the earlier of the time of Mortgage
closing and funding, or maturity of the Construction Loan.
5. Section 1.56 is amended in its entirety to provide as follows:
Section 1.56 "Limited Partner" shall mean WNC Housing
Tax Credit Fund VI, L.P., Series 10, a California limited
partnership, and such other Persons as are admitted to the
Partnership as additional or Substitute Limited Partners
pursuant to this Agreement.
6. Section 1.71 is amended in its entirety to provide as follows:
Section 1.71 "Partner(s)" shall collectively mean the
General Partner, the Limited Partner, the Georgia Limited
Partner and the Special Limited Partner or individually may
mean any Partner as the context dictates.
7. Section 1.81 is amended in its entirety to provide as follows:
Section 1.81 "Projected Annual Georgia Credits" shall
mean Georgia Credits in the amount of $94,301 for 2003,
$255,168 for 2004, $266,316 for each of the years 2005 through
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2012, $172,015 for 2013, and $11,148 for 2014, which the
General Partner has projected to be the total amount of
Georgia Credits which will be allocated to the Georgia Limited
Partner by the Partnership, constituting 100% of the aggregate
amount of Georgia Credits of $2,663,160 to be available to the
Partnership.
8. Section 1.82 is deleted in its entirety.
9. Section 1.83 is amended in its entirety to provide as follows:
Section 1.83 "Projected Annual Tax Credits" shall
mean LIHTC in the amount of $94,301 for 2003, $255,168 for
2004, $266,236 for each of the years 2005 through 2012,
$171,935 for 2013, and $11,069 for 2014, 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 99.97% of the aggregate amount of LIHTC of
$2,663,160 to be available to the Partnership.
10. Section 1.84 is amended in its entirety to provide as follows:
Section 1.84 "Projected Tax Credits" shall mean
LIHTC in the aggregate amount of $2,663,160.
11. Section 6.2(b) is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said subsection
shall read as follows:
(b) In addition, if (1) the Improvements are not
completed on or before the Completion Date (which date may be
extended in the events of Force Majeure, but in no event
longer than three months from the Completion Date); (2) prior
to completing the Improvements, the Construction Lender sends
a notice of default under the Construction Loan; or (3) a
foreclosure action is commenced against the Partnership, then
at the Special Limited Partner's election, either the General
Partner will be removed from the Partnership and the Special
Limited Partner will be admitted as successor General Partner,
all in accordance with Article XIII hereof, or the General
Partner will repurchase the Interest of the Limited Partner,
the Georgia Limited Partner and the Special Limited Partner
for an amount equal to the amounts theretofore paid by the
Limited Partner, the Georgia Limited Partner and the Special
Limited Partner, and the Limited Partner, the Georgia Limited
Partner and the Special Limited Partner shall have no further
Interest in the Partnership. If the Special Limited Partner
elects to have the General Partner repurchase such Interests
then the repurchase shall occur within 60 days after the
General Partner receives written demand from the Special
Limited Partner. If the Special Limited Partner elects to
remove the General Partner then the provisions of Article XIII
apply.
12. The section heading of ARTICLE VII is amended in its entirety
to provide as follows:
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ARTICLE VII
CAPITAL CONTRIBUTIONS OF LIMITED PARTNER,
GEORGIA LIMITED PARTNER AND SPECIAL LIMITED PARTNER
13. 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 $1,996,971 for the LIHTC and the Georgia
Limited Partner shall make a Capital Contribution in the
amount of $532,632 for the Georgia Credits, in each case 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) $514,800 (representing $406,570 for the LIHTC
payable by the Limited Partner and $108,230 for the Georgia
Credits payable by the Georgia Limited Partner) 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) $130,000 (representing $102,635 for the LIHTC
payable by the Limited Partner and $27,365 for the Georgia
Credits payable by the Georgia Limited Partner), 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 in form acceptable to
the Special Limited Partner stating that, with the
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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 Georgia 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
(7) any documents previously not provided to
the Limited Partner or the Georgia Limited Partner
but required pursuant to this Section 7.2 and
Sections 14.3(a) and (b).
(c) $300,000 (representing $236,850 for the LIHTC
payable by the Limited Partner and $63,150 for the Georgia
Credits payable by the Georgia Limited Partner) 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 Sections 14.3(a) and (b); and
(3) a determination by the Special Limited
Partner that construction financing is In-Balance;
(d) $801,647 (representing $632,900 for the LIHTC
payable by the Limited Partner and $168,747 for the Georgia
Credits payable by the Georgia Limited Partner) 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 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 Sections 14.3(a) and (b); and
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(3) a determination by the Special Limited
Partner that construction financing is In-Balance;
(e) $252,974 (representing $199,723 for the LIHTC
payable by the Limited Partner and $53,251 for the Georgia
Credits payable by the Georgia Limited Partner) 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) $91,033 (representing $71,866 for the LIHTC
payable by the Limited Partner and $19,167 for the Georgia
Credits payable by the Georgia Limited Partner) 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
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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; and
(11) executed documentation from the
Construction Lender converting the Construction Loan
to the Mortgage Loan;
(g) $439,949 (representing $346,227 for the LIHTC
payable by the Limited Partner and $92,722 for the Georgia
Credits payable by the Georgia Limited Partner) shall be
payable upon the Limited Partner's receipt and approval of the
following documents:
(1) a copy of the declaration of restrictive
covenants/extended use agreement entered into
between the Partnership and the State Tax Credit
Agency;
(2) 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);
(3) 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;
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(4) Debt Service Coverage of 1.10 for 90
consecutive days immediately prior to funding;
(5) 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
(6) any documents previously not provided to
the Limited Partner but required pursuant to this
Section 7.2 and Sections 14.3(a) and (b).
14. The first sentence of Section 7.3 is amended in order to
include the Georgia Limited Partner so that as amended it
shall read as follows:
Section 7.3 Repurchase of Limited Partner's
Interest.
Within 60 days after the General Partner receives
written demand from the Limited Partner and/or the Special
Limited Partner and/or the Georgia Limited Partner, the
Partnership shall repurchase the Limited Partner's Interest
and/or the Special Limited Partner's Interest and/or the
Georgia Limited Partner's Interest in the Partnership by
refunding to it in cash the full amount of the Capital
Contribution which the Limited Partner and/or the Special
Limited Partner and/or the Georgia Limited Partner has
theretofore made in the event that, for any reason:
15. Section 7.4(a) is amended in its entirety in order to include
the Georgia Limited Partner and Georgia Credits so that as
amended said subsection shall read as follows:
(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
99.98% of $2,663,160 for the LIHTC (the new Projected Tax
Credit amounts, if 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 $0.75 times the
Revised Projected LIHTC 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
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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.
If the anticipated amount of Projected Georgia Credits to be
allocated to the Georgia Limited Partner as evidenced by
Georgia Low Income Housing Credit Eligibility Statement and
the audited construction cost certificate provided to the
Georgia Limited Partner are less than 100% (the new Projected
Georgia Tax Credit amount, if applicable, shall be referred to
as the "Revised Projected Georgia Tax Credits") then the
Georgia Limited Partner's Capital Contribution provided for in
Section 7.2 shall be adjusted by the amount which will make
the total Capital Contribution to be paid by the Georgia
Limited Partner to the Partnership equal $0.20 times the
Revised Projected Georgia Credits amount so anticipated to be
allocated to the Georgia Limited Partner.
16. Section 7.4(b) is amended by adding the following to the end
of Section 7.4(b):
If at the end of each calendar year during the first five
calendar years following the year in which the Apartment
Housing is placed in service, the Actual Georgia Tax Credit
for any fiscal year or portion thereof is or will be less than
the Projected Annual Georgia Tax Credit, or the Projected
Annual Georgia Tax Credit as modified by Section 7.4 of this
Agreement if applicable (the "Annual Georgia Credit
Shortfall"), then the next Capital Contribution owed by the
Georgia Limited Partner shall be reduced by the Annual Georgia
Credit Shortfall amount, and any portion of such Annual
Georgia Credit Shortfall in excess of such Capital
Contribution shall be applied to reduce succeeding Capital
Contributions of the Georgia Limited Partner. If the Annual
Georgia Credit Shortfall is greater than the Georgia Limited
Partner's remaining Capital Contributions then the General
Partner shall pay to the Georgia Limited Partner the excess of
the Annual Georgia Credit Shortfall over the remaining Capital
Contributions. The General Partner shall have sixty days to
pay the Annual Georgia Credit Shortfall from the date the
General Partner receives notice from the Special Limited
Partner.
17. Section 7.4(d) is amended in its entirety in order to include
the Georgia State Credits so that as amended said subsection
shall read as follows:
(d) The General Partner has represented, in part,
that it would use its best efforts (1) to deliver Projected
Annual Tax Credits of $94,301 in 2003, $255,168 in 2004, and
$266,236 in 2005, and (2) to deliver to the Georgia Limited
Partner Projected Annual Georgia Tax Credits of $94,301 in
2003, $255,168 in 2004, and $266,316 in 2005.
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18. Section 7.7 is amended in its entirety in order to include the
Georgia Limited Partner so that as amended said section shall
read as follows:
Section 7.7 Liability of Limited Partner, Special
Limited Partner and Georgia Limited Partner.
The Limited Partner, Georgia Limited Partner and
Special Limited Partner shall not be liable for any of the
debts, liabilities, contracts or other obligations of the
Partnership. The Limited Partner, Georgia Limited Partner and
Special Limited Partner shall be liable only to make Capital
Contributions in the amounts and on the dates specified in
this Agreement and, except as otherwise expressly required
hereunder, shall not be required to lend any funds to the
Partnership or, after their respective Capital Contributions
have been paid, to make any further Capital Contribution to
the Partnership.
19. ARTICLE VII is amended to add a new section as follows:
Section 7.8 Georgia Limited Partner.
The Georgia Limited Partner shall be in a different
class from the Limited Partner and, except as otherwise
expressly stated in this Agreement, shall not participate in
any rights allocable to or exercisable by the Limited Partner
under this Agreement.
20. Section 9.5(f) is amended to include the Georgia Limited
Partner so that as amended said subsection shall read as
follows:
(f) admit a Person as a Limited Partner, Georgia
Limited Partner or Special Limited Partner except as provided
in this Agreement;
21. Sections 9.6(c), (d) and (e) are amended in order to include
the Georgia Limited Partner so that as amended said
subsections shall read as follows:
(c) engage in any transaction not expressly
contemplated by this Agreement in which the General Partner
has an actual or potential conflict of interest with the
Limited Partner, the Georgia Limited Partner or the Special
Limited Partner;
(d) contract away the fiduciary duty owed to the
Limited Partner, the Georgia Limited Partner and the Special
Limited Partner;
(e) take any action which would cause the Apartment
Housing to fail to qualify, or which would cause a termination
or discontinuance of the qualification of the Apartment
Housing, as a "qualified low income housing project" under
Section 42(g)(1) of the Code, as amended, or any successor
thereto, or which would cause the Limited Partner to fail to
obtain the Projected Tax Credits or which would cause the
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recapture of any LIHTC; or which would cause the Georgia
Limited Partner to fail to obtain the Projected Georgia Tax
Credits or which would cause the recapture of any Georgia Tax
Credits;
22. Section 9.7(h) is amended in order to include the Georgia
Limited Partner so that as amended said section shall read as
follows:
(h) permit, and cause the Management Agent to permit,
the Special Limited Partner and its representatives: (1) to
have access to the Apartment Housing and personnel employed by
the Partnership and by the Management Agent at all times
during normal business hours after reasonable notice; (2) to
examine all agreements, LIHTC and Georgia Limited Partner
compliance data and Plans and Specifications; and (3) to make
copies thereof;
23. Sections 9.12 (a), (n), (p), (w), (y) and (ee) are amended in
order to include the Georgia Limited Partner so that as
amended said subsections shall read as follows:
(a) The Partnership is a duly organized limited
partnership validly existing under the laws of the State and
has complied with all filing requirements necessary for the
protection of the limited liability of the Limited Partner,
the Georgia Limited Partner, and the Special Limited Partner.
(n) To the best of the General Partner's knowledge:
(1) no Hazardous Substance has been disposed of, or released
to or from, or otherwise now exists in, on, under or around,
the Apartment Housing and (2) no aboveground or underground
storage tanks are now or have ever been located on or under
the Apartment Housing. The General Partner will not install or
allow to be installed any aboveground or underground storage
tanks on the Apartment Housing. The General Partner covenants
that the Apartment Housing shall be kept free of Hazardous
Substance and shall not be used to generate, manufacture,
refine, transport, treat, store, handle, dispose of, transfer,
produce or process Hazardous Substance, except in connection
with the normal maintenance and operation of any portion of
the Apartment Housing. The General Partner shall comply, or
cause there to be compliance, with all applicable Federal,
state and local laws, ordinances, rules and regulations with
respect to Hazardous Substance and shall keep, or cause to be
kept, the Apartment Housing free and clear of any liens
imposed pursuant to such laws, ordinances, rules and
regulations. The General Partner must promptly notify the
Limited Partner, the Georgia Limited Partner, and the Special
Limited Partner in writing (1) if it knows, or suspects or
believes there may be any Hazardous Substance in or around any
part of the Apartment Housing, any Improvements constructed on
the Apartment Housing, or the soil, groundwater or soil vapor,
(2) if the General Partner or the Partnership may be subject
to any threatened or pending investigation by any governmental
agency under any law, regulation or ordinance pertaining to
any Hazardous Substance, and (3) of any claim made or
threatened by any Person, other than a governmental agency,
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against the Partnership or General Partner arising out of or
resulting from any Hazardous Substance being present or
released in, on or around any part of the Apartment Housing.
(p) The Partnership will allocate to the Limited
Partner the Projected Annual Tax Credits, or the Revised
Projected Tax Credits, if applicable, and the Partnership will
allocate to the Georgia Limited Partner the Projected Annual
Georgia Tax Credits, or the Revised Projected Georgia Tax
Credits, if applicable.
(w) No event has occurred which has caused, and the
General Partner has not acted in any manner which will cause
(1) the Partnership to be treated for federal income tax
purposes as an association taxable as a corporation, (2) the
Partnership to fail to qualify as a limited partnership under
the Act, or (3) the Limited Partner or the Georgia Limited
Partner to be liable for Partnership obligations; provided
however, the General Partner shall not be in breach of this
representation if the action causing the Limited Partner to be
liable for the Partnership obligations is undertaken by the
Limited Partner or if the action causing the Georgia Limited
Partner to be liable for the Partnership obligations is
undertaken by the Georgia Limited Partner.
(y) Neither the Partnership nor the General Partner
has any liabilities, contingent or otherwise, which have not
been disclosed in writing to the Limited Partner, the Georgia
Limited Partner and the Special Limited Partner and which in
the aggregate affect the ability of the Limited Partner and
the Georgia Limited Partnerto obtain the anticipated benefits
of its investment in the Partnership.
(ee) The General Partner shall be liable to the
Limited Partner and the Georgia Limited Partner for any costs,
damages, loss of profits, diminution in the value of its
investment in the Partnership, or other losses, of every
nature and kind whatsoever, direct or indirect, realized or
incurred by the Limited Partner or the Georgia Limited Partner
as a result of any material breach of the representations and
warranties set forth in this Section 9.12.
24. Section 10.1 is amended in its entirety to provide as follows:
Section 10.1 General.
All items includable in the calculation of Income or
Loss not arising from a Sale or Refinancing, and all Tax
Credits, shall be allocated 99.97% to the Limited Partner,
0.01% to the Georgia Limited Partner, 0.01% to the Special
Limited Partner, and 0.01% to the General Partner. Any and all
Georgia Tax Credits shall be allocated to the Georgia Limited
Partner. Georgia Tax Credits are those Tax Credits under the
Georgia Code deductible from income tax, otherwise payable to
the State of Georgia.
25. Sections 10.2(b) and (c) are amended in their entirety as
follows:
13
(b) Losses shall be allocated 99.97% to the Limited
Partner, 0.01% to the Georgia Limited Partner, 0.01% to the
Special Limited Partner and 0.01% to the General Partner.
(c) Notwithstanding the foregoing provisions of
Section 10.2(a) and (b), in no event shall any Losses be
allocated to the Limited Partner, the Georgia Limited Partner
or the Special Limited Partner if and to the extent that such
allocation would create or increase an Adjusted Capital
Account Deficit for the Limited Partner, the Georgia Limited
Partner or the Special Limited Partner. In the event an
allocation of 99.97%, 0.01% or 0.01% of each item includible
in the calculation of Income or Loss not arising from a Sale
or Refinancing, would create or increase an Adjusted Capital
Account Deficit for the Limited Partner, the Georgia Limited
Partner or the Special Limited Partner, respectively, then so
much of the items of deduction other than projected
depreciation shall be allocated to the General Partner instead
of the Limited Partner, the Georgia Limited Partner or the
Special Limited Partner as is necessary to allow the Limited
Partner, the Georgia Limited Partner or the Special Limited
Partner to be allocated 99.97%, 0.01% and 0.01%, respectively,
of the items of Income and Apartment Housing depreciation
without creating or increasing an Adjusted Capital Account
Deficit for the Limited Partner, the Georgia Limited Partner
or the Special Limited Partner, it being the intent of the
parties that the Limited Partner, the Georgia Limited Partner
and the Special Limited Partner always shall be allocated
99.97%, 0.01% and 0.01%, respectively, of the items of Income
not arising from a Sale or Refinancing and 99.97%, 0.01% and
0.01%, respectively, of the Apartment Housing depreciation.
26. Section 10.3 (e) is amended to provide as follows:
(e) Nonrecourse Deductions for any fiscal year shall
be specially allocated 99.97% to the Limited Partner, 0.01% to
the Georgia Limited Partner, 0.01% to the Special Limited
Partner and 0.01% to the General Partner.
27. Section 10.5(a), (d) are amended in its entirety to provide as
follows:
(a) The basis (or cost) of any Partnership investment
tax credit property shall be allocated among the Partners in
accordance with Treasury Regulations Section 1.46-3(f)(2)(i).
All Tax Credits (other than the investment tax credit and the
Georgia Tax Credit) shall be allocated among the Partners in
accordance with applicable law. Consistent with the foregoing,
the Partners intend that (1) LIHTC will be allocated 99.97% to
the Limited Partner, 0.01% to the Georgia Limited Partner,
0.01% to the Special Limited Partner and 0.01% to the General
Partner, and (2) the Georgia State Credits will be allocated
100% to the Georgia Limited Partner.
(d) Solely for purposes of determining a Partner's
proportionate share of the "excess nonrecourse liabilities" of
the Partnership within the meaning of Treasury Regulations
14
Section 1.752-3(a)(3), the Partners' interests in Partnership
profits are as follows: Limited Partner: 99.97%; Georgia
Limited Partner: 0.01%; Special Limited Partner: 0.01%;
General Partner: 0.01%.
28. Section 10.5 is amended to add the following section as
follows:
(g) Tax Credits shall be allocated 99.97% to the
Limited Partner, 0.01% to the Georgia Limited Partner, 0.01%
to the Special Limited Partner, and 0.01% to the General
Partner. In the event there occurs a recapture of Tax Credits
previously allocated to the Partners, the responsibility for
the recapture of such Tax Credits shall be allocated in
accordance with the requirements of the Code and the Treasury
Regulations; namely, to the Partners (if permitted by
applicable law) who are or are deemed to be Partners in the
year in which such recapture occurs, in accordance with their
interests in the losses of the Partnership for that year.
Georgia Tax Credits shall be allocated 100% to the Georgia
Limited Partner, which Georgia Limited Partner also shall be
allocated 100% of any recapture of Georgia Tax Credits.
29. Section 10.7 is amended in its entirety in order to include
the Georgia Limited Partner so that as amended it shall read
as follows:
Section 10.7 Allocation Among Limited Partners.
In the event that the Interest of the Limited Partner
hereunder is at any time held by more than one Limited Partner
or by more than one Georgia Limited Partner all items which
are specifically allocated to the Limited Partner or the
Georgia Limited Partner for any month pursuant to this Article
X shall be apportioned among such Persons according to the
ratio of their respective profit-sharing interests in the
Partnership at the last day of such month.
30. Section 11.1(g) is amended in its entirety as follows:
(g) the balance, 24.99% to the Limited Partner, 75%
to the General Partner and 0.01% to the Georgia Limited
Partner.
31. Section 11.2(g) is amended in its entirety as follows:
(g) thereafter, 29.99% to the Limited Partner, 70% to
the General Partner and 0.01% to the Georgia Limited Partner.
32. Section 12.1 is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said section
shall read as follows:
Section 12.1 Assignment of Interests.
The Limited Partner, the Georgia Limited Partner and
the Special Limited Partner shall have the right to assign all
or any part of their respective Interests to any other Person,
whether or not a Partner, upon satisfaction of the following:
15
(a) a written instrument setting forth the name and
address of the proposed transferee, the nature and extent of
the Interest which is proposed to be transferred and the terms
and conditions upon which the transfer is proposed to be made,
stating that the Assignee accepts and agrees to be bound by
all of the terms and provisions of this Agreement, and
providing for the payment of all reasonable expenses incurred
by the Partnership in connection with such assignment,
including but not limited to the cost of preparing any
necessary amendment to this Agreement; and
(b) upon receipt by the General Partner of the
Assignee's written representation that the Partnership
Interest is to be acquired by the Assignee for the Assignee's
own account for long-term investment and not with a view
toward resale, fractionalization, division or distribution
thereof.
(c) Notwithstanding any provision to the contrary,
the Limited Partner may assign its Interest to an Affiliate or
assign its Interest to USbank or its successors as collateral
to secure capital contribution loan without satisfying the
conditions of Sections 12.1(a) and (b) above.
THE LIMITED PARTNER INTEREST, THE GEORGIA LIMITED PARTNER
INTEREST AND THE SPECIAL LIMITED PARTNER INTEREST DESCRIBED
HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AS AMENDED OR UNDER ANY STATE SECURITIES LAW. THESE
INTERESTS MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS
REGISTERED UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS
OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
33. Section 12.2, Section 12.3, Section 12.5, and Section 12.6 are
amended in their entirety in order to include the Georgia
Limited Partner so that as amended said sections shall read as
follows:
Section 12.2 Effective Date of Transfer.
Any assignment of a Limited Partner's Interest or the
Georgia Limited Partner's Interest or Special Limited
Partner's Interest pursuant to Section 12.1 shall become
effective as of the first day of the calendar month in which
the last of the conditions to such assignment are satisfied.
Section 12.3 Invalid Assignment.
Any purported assignment of an Interest of the
Limited Partner or the Georgia Limited Partner or the Special
Limited Partner otherwise than in accordance with Section 12.1
or Section 12.6 shall be of no effect as between the
Partnership and the purported assignee and shall be
disregarded by the General Partner in making allocations and
Distributions hereunder.
16
Section 12.5 Substitution of Assignee as Limited
Partner , Georgia Limited Partner or Special Limited Partner.
(a) An Assignee shall not have the right to become a
Substitute Limited Partner, Substitute Georgia Limited Partner
or Substitute Special Limited Partner in place of his assignor
unless the written consent of the General Partner to such
substitution shall have been obtained, which consent, in the
General Partner's absolute discretion, may be withheld; except
that an Assignee which is an Affiliate of the Limited Partner
or Georgia Limited Partner or Special Limited Partner, or
USbank or its successors, may become a Substitute Limited
Partner or Substitute Special Limited Partner without the
consent of the General Partner.
(b) A nonadmitted transferee of the Limited Partner's
Interest, or the Georgia Limited Partner's Interest or the
Special Limited Partner's Interest in the Partnership shall
only be entitled to receive that share of allocations,
Distributions and the return of Capital Contribution to which
its transferor would otherwise have been entitled with respect
to the Interest transferred, and shall have no right to obtain
any information on account of the Partnership's transactions,
to inspect the Partnership's books and records or have any
other of the rights and privileges of a Limited Partner or
Georgia Limited Partner or Special Limited Partner, provided,
however, that the Partnership shall, if a transferee and
transferor jointly advise the General Partner in writing of a
transfer of an Interest in the Partnership, furnish the
transferee with pertinent tax information at the end of each
fiscal year of the Partnership.
Section 12.6 Death, Bankruptcy, Incompetency, etc.,
of a Limited Partner.
Upon the death, dissolution, adjudication of
bankruptcy, or adjudication of incompetency or insanity of the
Limited Partner, the Georgia Limited Partner, or Special
Limited Partner, such Partner's executors, administrators or
legal representatives shall have all the rights of its
predecessor-in-interest for the purpose of settling or
managing such Partner's estate, including such power as such
Partner possessed to constitute a successor as a transferee of
its Interest in the Partnership and to join with such
transferee in making the application to substitute such
transferee as a Partner.
34. Section 14.1(b) is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said subsection
shall read as follows:
(b) Upon the request of the Limited Partner or the
Georgia Limited Partner, the General Partner shall promptly
deliver to the Limited Partner or the Georgia Limited Partner,
at the expense of the Partnership, a copy of the information
set forth in Section 14.1(a) above. The Limited Partner shall
have the right upon reasonable request and during normal
business hours to inspect and copy any of the foregoing, or
any of the other books and records of the Partnership or the
Apartment Housing, at its own expense.
17
35. Section 14.2 is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said section
shall read as follows:
Section 14.2 Accounting Reports.
(a) By February 20 of each calendar year the General
Partner shall provide to the Limited Partner, the Georgia
Limited Partner and the Special Limited Partner all tax
information necessary for the preparation of their federal and
state income tax returns and other tax returns with regard to
the jurisdiction(s) in which the Partnership is formed and in
which the Apartment Housing is located. Notwithstanding, the
General Partner shall deliver to the Limited Partner, the
Georgia Limited Partner and the Special Limited Partner a
draft copy of the information requested herein at least ten
days prior to the above referenced due date.
(b) By March 1 of each calendar year, including the
year(s) during construction of the Apartment Housing, the
General Partner shall send to the Limited Partner, the Georgia
Limited Partner, and the Special Limited Partner an audited
financial statement for the Partnership, which shall include,
but is not limited to: (1) a balance sheet as of the end of
such fiscal year and statements of income, Partners' equity
and changes in cash flow for such fiscal year prepared in
accordance with generally accepted accounting principles; (2)
a report of any Distributions made at any time during the
fiscal year, separately identifying Distributions from Net
Operating Income for the fiscal year, Net Operating Income for
prior years, Sale or Refinancing Proceeds, and reserves; and
(3) a report setting forth the amount of all fees and other
compensation and Distributions and reimbursed expenses paid by
the Partnership for the fiscal year to the General Partner or
Affiliates of the General Partner and the services performed
in consideration therefor, which report shall be verified by
the Partnership's Accountants. Notwithstanding, the General
Partner shall deliver to the Limited Partner, the Georgia
Limited Partner, and the Special Limited Partner a draft copy
of the information requested herein at least ten days prior to
the above referenced due date.
(c) Within 60 days after the end of each fiscal
quarter in which a Sale or Refinancing of the Apartment
Housing occurs, the General Partner shall send to the Limited
Partner and the Special Limited Partner a report as to the
nature of the Sale or Refinancing and as to the Income and
Losses for tax purposes and proceeds arising from the Sale or
Refinancing.
36. The preamble to Section 14.3 is amended in its entirety to
read as follows:
Section 14.3 Other Reports.
The General Partner shall provide to the Limited
Partner, the Georgia Limited Partner and the Special Limited
Partner the following reports:
18
37. Sections 14.3(e) and (f) are amended in their entirety in
order to include Georgia Credits and the Georgia Limited
Partner so that as amended said subsections shall read as
follows:
(e) by September 15 of each year, an estimate of the
taxable income or loss, LIHTC, and Georgia Credit for that
year;
(f) if the Apartment Housing receives a reservation
of LIHTC in one year but will not complete the construction
and rent-up until a later year, an audited cost certification
together with the Accountant's work papers verifying that the
Partnership has expended the requisite 10% of the reasonably
expected cost basis to meet the carryover test provisions of
Section 42 of the Code. Such certification shall be provided
to the Limited Partner, the Georgia Limited Partner and
Special Limited Partner by the later of December 31 of the
year during which the reservation was received or six months
after the date of the carryover allocation if permitted by the
State Tax Credit Agency. Furthermore, if materials and
supplies are purchased to meet the 10% requirement then the
General Partner shall provide to the Limited Partner and the
Georgia Limited Partner an opinion of counsel that title to
the materials and supplies pass to the Partnership and that
the Partnership bears the risk of loss of the materials and
supplies;
38. Section 15.1(a) is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said subsection
shall read as follows:
(a) The effective date of the Withdrawal or removal
of the General Partner, unless (1) at the time there is at
least one other General Partner (which may be the Special
Limited Partner if it elects to serve as successor General
Partner under Section 13.4 hereof) who will continue as
General Partner, or (2) within 120 days after the occurrence
of any such event the Limited Partner and the Georgia Limited
Partner elect to continue the business of the Partnership.
39. Section 15.2 is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said section
shall read as follows:
Section 15.2 Return of Capital Contributions upon
Dissolution.
Except as provided in Sections 7.3 and 7.4 of this
Agreement, which provide for a reduction or refund of the
Limited Partner's and the Georgia Limited Partner's Capital
Contribution under certain circumstances, and which shall
represent the personal obligations of the General Partner, as
well as the obligations of the Partnership, each Partner shall
look solely to the assets of the Partnership for all
Distributions with respect to the Partnership (including the
return of its Capital Contribution) and shall have no recourse
therefor (upon dissolution or otherwise) against any General
Partner. No Partner shall have any right to demand property
19
other than money upon dissolution and termination of the
Partnership, and the Partnership is prohibited from such a
distribution of property absent the consent of the Special
Limited Partner.
40. Section 15.5 is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said section
shall read as follows:
Section 15.5 Liquidation Statement.
Each of the Partners shall be furnished with a
statement prepared or caused to be prepared by the General
Partner or other liquidator, which shall set forth the assets
and liabilities of the Partnership as of the date of complete
liquidation. Upon compliance with the distribution plan as
outlined in Sections 15.3 and 15.4, the Limited Partner, the
Georgia Limited Partner and the Special Limited Partner shall
cease to be such and the General Partner shall execute,
acknowledge and cause to be filed those certificates
referenced in Section 15.6.
41. Section 17.1(a) is amended as follows:
(a) The Georgia Limited Partner shall have no voting
rights. The Limited Partner shall have no right to vote upon
any matters affecting the Partnership, except as provided in
this Agreement. Notwithstanding, at a meeting of the
Partnership, the Limited Partner may vote:
42. Section 17.3 is amended in its entirety as follows:
Section 17.3 Notices.
Any notice given pursuant to this Agreement may be
served personally on the Partner to be notified, or may be
sent by overnight courier, or may be mailed, first class
postage prepaid, or by certified mail, to the following
address, or to such other address as a party may from time to
time designate in writing:
To the General Partner: BC Holdings, LLC
000 X. Xxxxxxxxxx Xx.
Xxxxxxxxxxx, XX 00000
To the Limited Partner: WNC Housing Tax Credit
Fund VI, L.P., Series 10
c/o WNC & Associates, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
To the Georgia Limited Partner: WNC Georgia Tax Credit
XXXII, L.P.
c/o WNC Advisors, LLC
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
20
To the Special Limited Partner: WNC Housing, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
43. Section 17.10 is amended in its entirety to include the
Georgia Limited Partner so that as amended said section shall
read as follows:
Section 17.10 Certain Provisions.
If the operation of any provision of this Agreement
would contravene the provisions of applicable law, or would
result in the imposition of general liability on any Limited
Partner, Georgia Limited Partner or Special Limited Partner,
such provisions shall be void and ineffectual.
44. Sections 17.11(c), (d) and (e) are amended in their entirety
in order to include the Georgia Limited Partner so that as
amended said subsections shall read as follows:
(c) In discharging its duties and responsibilities,
the Tax Matters Partner shall act as a fiduciary (1) to the
Limited Partner and the Georgia Limited Partner (to the
exclusion of the other Partners) insofar as tax matters
related to the Tax Credits are concerned, and (2) to all of
the Partners in other respects.
(d) The Partners consent and agree that in connection
with any audit, review, examination, or otherwise of the
Partnership, or if the Tax Matters Partner withdraws from the
Partnership or the Tax Matters Partner becomes Bankrupt, then
the Special Limited Partner may become, in its sole
discretion, a special general partner, and become the Tax
Matters Partner. The Limited Partner and the Georgia Limited
Partner will make no claim against the Partnership in respect
of any action or omission by the Tax Matters Partner during
such time as the Special Limited Partner acts as the Tax
Matters Partner.
(e) Nothing herein shall be construed as a waiver by
the Limited Partner and the Georgia Limited Partner of any of
its rights under Chapter 631 of the Code. The General Partner
shall not enter into any settlement agreement purporting to
bind the Limited Partner or the Georgia Limited Partner
without such Partner's consent.
45. Section 17.17 is amended in its entirety in order to include
the Georgia Limited Partner so that as amended said section
shall read as follows:
Section 17.17 Receipt of Correspondence.
The Partners agree that the General Partner shall
send to the Limited Partner, the Georgia Limited Partner and
the Special Limited Partner within five days of receipt a copy
21
of any correspondence relative to the Apartment Housing's
noncompliance with the Mortgage, relative to the Apartment
Housing's noncompliance with the Tax Credit rules or
regulations, relative to the acceleration of the Mortgage
and/or relative to the disposition of the Apartment Housing.
VI. The Partnership shall be continued pursuant to the Act and on the same
terms and conditions set forth in the Amended and Restated Partnership
Agreement, as amended, and amended only as specifically set forth
herein.
[Remainder of page intentionally left bank.]
22
IN WITNESS WHEREOF, this Second Amendment to the Amended and Restated
Agreement of Limited Partnership of Catoosa Senior Village, L.P., a Georgia
limited partnership, is executed on June 30, 2003 and made effective as of the
Effective Date.
GENERAL PARTNER:
BC HOLDINGS, LLC
By: /s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
President
TIFT COUNTY RESIDENTIAL HOUSING CORPORATION
By: /s/ XXXXX X. XXXXXX
Xxxxxxx Xxxxxxx
Vice President
LIMITED PARTNER:
WNC HOUSING TAX CREDIT FUND VI, L.P., SERIES 10
By: WNC & ASSOCIATES, INC.,
General Partner
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
WITHDRAWING LIMITED PARTNER:
WNC HOLDING, LLC
By: WNC & ASSOCIATES, INC.,
Managing Member
By: /s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx,
Executive Vice President
23
ACKNOWLEDGEMENT BY GUARANTORS
OF SECOND AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF CATOOSA SENIOR VILLAGE, L.P.
By their signatures below Xxxxx X. Xxxxxx and Xxxxxxxxx Xxxxxx (the
"Guarantors") hereby agree as follows:
1. The Guarantors confirm that they have executed a Guaranty Agreement dated
October 25, 2001, a form of which was attached as an exhibit to the
Original Partnership Agreement, for the benefit of the Partnership and
WNC Holding, LLC as the Limited Partner (the "Guaranty").
2. The Guarantors hereby consent to the execution of this Second Amendment
and acknowledge that WNC Holding, LLC has withdrawn from the Partnership
pursuant to the Second Amendment and WNC Housing Tax Credit Fund VI,
L.P., Series 10 has been admitted as the new Limited Partner.
3. The Guarantors hereby acknowledge that all their obligations as
Guarantors under the Guaranty remain valid and in full force and effect
in accordance with the terms of the Guaranty and that WNC Housing Tax
Credit Fund VI, L.P. shall be entitled to all of the rights and benefits
under the Guaranty. For purposes of the Guaranty, the term "Partnership
Agreement" shall include all of the terms and conditions of the first
amendment thereto and this Second Amendment.
GUARANTORS:
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
/s/ XXXXXXXXX XXXXXX
Xxxxxxxxx Xxxxxx
24
STATE OF )
) ss:
COUNTY OF )
Before me, the undersigned Notary Public in and for the aforesaid
County and State, personally appeared XXXXX X. XXXXXX as Guarantor, and being
duly sworn, acknowledged the execution of the foregoing Acknowledgement to
Second Amendment.
Witness my hand and notarial seal this ____ day of _____________, 2003.
------------------------------------
Notary Public
My Commission Expires: ____________________
STATE OF )
) ss:
COUNTY OF )
Before me, the undersigned Notary Public in and for the aforesaid
County and State, personally appeared XXXXXXXXX XXXXXX as Guarantor, and being
duly sworn, acknowledged the execution of the foregoing Acknowledgement to
Second Amendment.
Witness my hand and notarial seal this ____ day of _____________, 2003.
----------------------------------
Notary Public
My Commission Expires: ____________________
25
