FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
CATOOSA SENIOR VILLAGE, L.P.
This First Amendment to the Amended and Restated Agreement of Limited
Partnership of Catoosa Senior Village, 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") and
Tift County Residential Housing Corporation as the non-profit general partner
(collectively, 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 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 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 Xxxxxxxx,
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
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the Construction Inspector, or between the 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 Georgia Housing and
Finance Athority ("GHFA") or any successor thereto.
Section 1.31 "Construction Loan" shall mean the construction phase of
the loan obtained from GHFA in the principal amount of $2,382,000 at an interest
rate equal to zero percent (0%) for a term of 20 months to provide funds for the
construction and development of the Apartment Housing. At the conclusion of the
Construction Loan term, the Construction Loan will convert to a Mortgage Loan.
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 and Xxxx County
Residential Housing Corporation.
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) GHFA, or its
successor or assignee, the principal sum of $2,382,000, 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 20 years with fixed debt service
payments according to the schedule attached hereto as Exhibit "J." 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.
Section 1.63 "Mortgage Lender" shall mean the Georgia Housing and
Finance Authority ("GHFA").
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Sections 1.77 is amended in its entirety to provide as follows:
Section 1.77 "Permanent Mortgage Commencement" shall mean the first
date on which amortization of the Mortgage shall have commenced.
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 $94,301 for 2003, $255,168 for 2004, $266,263 for
each of the years 2005 through 2012, and $183,056 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 $2,663,160 to be available to the
Partnership.
Section 1.82 "Projected Annual LIHTC" shall mean LIHTC in the amount of
$94,301 for 2003, $255,168 for 2004, $266,263 for each of the years 2005
through 2012, and $183,056 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
$2,663,160 to be available to the Partnership.
Section 1.83 "Projected Annual Tax Credits" shall mean LIHTC and Georgia
Credits in the amount of $188,602 ($94,301 each of LIHTC and Georgia
Credits) for 2003, $510,336 ($255,168 each of LIHTC and Georgia Credits) for
2004, $532,526 ($266,263 each of LIHTC and Georgia Credits) for each of the
years 2005 through 2012, and $366,112 ($183,056 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 $5,326,320 ($2,663,160 each of LIHTC Amount and Georgia Credits) to
be available to the Partnership.
Section 6.2 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 $4,912,000 ("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
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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.
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
$2,529,549 (representing $1,996,970 for the LIHTC and $532,579 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) $514,800 (representing $406,570 for the LIHTC and $108,230 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) $130,000 (representing $102,635 for the LIHTC and $27,365 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;
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(6) all additional documents identified in the list attached
hereto as Exhibit "I"; and
(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 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 and $168,747 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 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;
(e) $252,974 (representing $199,723 for the LIHTC and $53,251 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
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(4) a determination by the Special Limited Partner that
construction financing is In-Balance;
(f) $91,053 (representing $71,886 for the LIHTC and $19,167 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;
and
(11) executed documentation from the Construction Lender
converting the Construction Loan to the Mortgage Loan;
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(g) $439,075 (representing $346,406 for the LIHTC and $92,669 for the
Georgia Credits) 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;
(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).
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
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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 $2,663,160 for the
LIHTC and $2,663,160 for the Georgia Credits (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
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 $188,602 (representing
$94,301 each of LIHTC and Georgia Credits) in 2003 and $510,336 (representing
$255,168 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 $91,053. 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 8.4 is amended in its entirety to provide as follows:
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Section 8.4 Other Reserves.
The General Partner, on behalf of the Partnership, will deposit
$100,000 of the capital contribution referenced in Section 7.2 (g) into an
interest bearing Partnership account ("Operating Reserve"). Funds from the
Operating Reserve can only be disbursed with the prior written approval of the
General Partner and Special Limited Partner. Notwithstanding, if (a) the
Partnership maintains an economic occupancy of 93% (based on the Partnership's
Accountant's report approved by the Special Limited Partner) for 12 consecutive
months following the funding of the Operating Reserve, and (b) no Operating
Reserve funds have been utilized, then the Special Limited Partner will approve
the disbursement of $50,000 ("Initial Release") of the Operating Reserve to the
General Partner. In any event, the full $100,000 less funds used for project
operations but including accrued interest will unconditionally be released to
the General Partner at the end of 24 months from the time the capital
contribution referenced in Section 7.2 (g) has been paid. Any funds not
available to be disbursed to the General Partner by reason of having been used
for project operations will be considered deferred development fee.
Section 13.2 (15), (16) and (17) are amended in their entirety to provide as
follows:
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 Catoosa Senior Village, 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
Tift County Residential Housing Corporation
By: /s/ XXXXXXX XXXXXXX
Xxxxxxx Xxxxxxx
Vice 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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