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EXHIBIT 3.3
AMENDMENT NO.21 TO CERTIFICATE AND AGREEMENT
OF LIMITED PARTNERSHIP OF
CASA MUNRAS HOTEL PARTNERS. L.P.
Reference is made to that certain Certificate and Agreement of
Limited Partnership (the "Agreement") of Casa Munras Hotel Partners, L.P., a
California Limited Partnership (formerly known as Western Host Monterey
Partners) (the "Partnership") recorded on April 19, 1978, as Instrument No.
78-412330 of the Official Records of Los Angeles County and recorded on May 1,
1978 on Reel 1238, Pages 762 through 831 of the Official Records of Monterey
County, as heretofore amended. The General Partners are executing this Amendment
No. 21 on behalf of themselves and as attorneys-in-fact for all Limited.
Partners.
Whereas, a majority of the Units of Participation (as defined
in the Agreement) held by the Limited Partners have approved a proposal
(the "Proposal") to (i) satisfy certain conditions imposed by AMRESCO
Capital, L.P. (the "Lender") in connection with a secured
limited-recourse loan of up to $7 million by the Partnership, (ii) to
remove the individual General Partners of the Partnership and replace
them with Casa Munras GP, LLC; and (iii) adopt certain tax related
amendments to the Agreement.
NOW, THEREFORE, the Agreement shall be amended as follows:
Part I - SPV Amendments
A. Article III is amended in its entirety to read as follows:
ARTICLE III
NATURE OF BUSINESS
The Partnership's business and purpose shall consist solely of
the acquisition, ownership, operation and management of the real estate project
known as Casa Munras Garden Hotel, located in Monterey, Monterey County,
California (the "Property") and such activities as are necessary, incidental or
appropriate in connection therewith.
B. The following paragraph (h) is added to ARTICLE IX:
(h) Power and Duties. Notwithstanding any other provision of
this Agreement
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EXHIBIT 3.3
and so long as any obligation secured by the Mortgage (as defined below) remains
outstanding and not discharged in full, the General Partner shall have no
authority to (except, (a) if such action would not result in a violation of, or
default under, the Mortgage, with the vote or written consent of the General
Partner and the holders of a majority of the Units of Participation then held by
the Limited Partners entitled to vote, or (b) otherwise, with the unanimous vote
or written consent of the General Partner and the holders of the Units of
Participation):
borrow money or incur indebtedness on behalf
of the Partnership other than normal trade
accounts payable and lease obligations in
the normal course of business, or grant
consensual liens on the Partnership's
property; except, however, that the General
Partner is hereby authorized to secure
financing for the Partnership pursuant to
the terms of the Deed of Trust, Assignment
of Leases and Rents, Security Agreement, and
Fixture Filing (if any), with AMRESCO
CAPITAL, L.P., a Delaware limited
partnership (the "Mortgage") and other
indebtedness expressly permitted therein or
in the documents related to the Mortgage,
and to grant a mortgage, lien or liens on
the Partnership's Property to secure such
Mortgage;
(ii) dissolve or liquidate the Partnership;
sell or lease, or otherwise dispose of all
or substantially all of the assets of the
Partnership;
file a voluntary petition or otherwise
initiate proceedings to have the Partnership
adjudicated bankrupt or insolvent, or
consent to the institution of bankruptcy or
insolvency proceedings against the
Partnership, or file a petition seeking or
consenting to reorganization or relief of
the Partnership as debtor under any
applicable federal or state law relating to
bankruptcy, insolvency, or other relief for
debtors with respect to the Partnership; or
seek or consent to the appointment of any
trustee, receiver, conservator, assignee,
sequestrator, custodian, liquidator (or
other similar official) of the Partnership
or of all or any substantial part of the
properties and assets of the Partnership, or
make any general assignment for the benefit
of creditors of the Partnership, or admit in
writing the inability of the Partnership to
pay its debts generally as they become due
or
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EXHIBIT 3.3
declare or effect a moratorium on the
Partnership debt or take any action in
furtherance of any action;
amend, modify or alter Article III,
paragraph (h) of Article IX, Article XIII,
paragraph (d) of Article XXI or paragraphs
(h) and (i) of Article XXII;
merge or consolidate with any other entity.
So long as any obligation secured by the Mortgage remains outstanding and not
discharged in full, the Partnership shall have a limited liability company
general partner having articles of organization containing the restrictions and
terms set forth in Articles One, Two and Three of the Operating Agreement of
Casa Munras GP, LLC, as of the date hereof, and the Partnership shall have no
other general partners.
C. Article XIII is amended in its entirety to read as follows:
ARTICLE XIII
DEATH OF LIMITED PARTNERS
The bankruptcy, death, dissolution, liquidation, termination or adjudication of
incompetency of a Limited Partner shall not cause the termination or dissolution
of the Partnership and the business of the Partnership shall continue. Upon any
such occurrence, the trustee, receiver, executor, administrator, committee,
guardian or conservator of such Limited Partner shall have all the rights of
such Limited Partner for the purpose of settling or managing its estate or
property, subject to satisfying conditions precedent to the admission of such
assignee as a substitute Limited Partner. The transfer by such trustee,
receiver, executor, administrator, committee, guardian or conservator of any
Partnership Interest shall be subject to all of the restrictions, hereunder to
which such transfer would have been subject if such transfer had been made by
such bankrupt, deceased, dissolved, liquidated, terminated or incompetent
Limited Partner.
D. The title of Article XXI is changed to "Covenants" and the following
paragraph (d) is added thereto:
(d) The Partnership shall:
MAINTAIN BOOKS AND RECORDS AND BANK ACCOUNTS SEPARATE FROM THOSE OF ANY
OTHER PERSON;
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EXHIBIT 3.3
MAINTAIN ITS ASSETS IN SUCH A MANNER THAT IT IS NOT COSTLY OR DIFFICULT
TO SEGREGATE, IDENTIFY OR ASCERTAIN SUCH ASSETS;
HOLD REGULAR PARTNERSHIP MEETINGS, AS APPROPRIATE, TO CONDUCT THE
BUSINESS OF THE PARTNERSHIP, AND OBSERVE ALL OTHER PARTNERSHIP
FORMALITIES;
HOLD ITSELF OUT TO CREDITORS AND THE PUBLIC AS A LEGAL ENTITY SEPARATE
AND DISTINCT FROM ANY OTHER ENTITY;
PREPARE SEPARATE TAX RETURNS AND FINANCIAL STATEMENTS, OR IF PART OF A
CONSOLIDATED GROUP, THEN IT WILL BE SHOWN AS A SEPARATE MEMBER OF SUCH
GROUP;
ALLOCATE AND CHARGE FAIRLY AND REASONABLY ANY COMMON EMPLOYEE OR
OVERHEAD SHARED WITH AFFILIATES AND MAINTAIN A SUFFICIENT NUMBER OF
EMPLOYEES IN LIGHT OF ITS CONTEMPLATED BUSINESS OPERATIONS;
TRANSACT ALL BUSINESS WITH AFFILIATES ON AN ARM'S-LENGTH BASIS AND
PURSUANT TO ENFORCEABLE AGREEMENTS;
CONDUCT BUSINESS IN ITS OWN NAME, AND USE SEPARATE STATIONERY, INVOICES
AND CHECKS;
(1) not commingle its assets or funds with those
of any other person;
(j) not assume, guarantee or pay the debts or
obligations of any other person;
(a) pay its own liabilities out of its own
funds;
(1) not acquire obligations or securities of its
partners or members;
(m) not pledge its assets for the benefit of any
other entity or make any loans or advances
to any entity;
(n) correct any known misunderstanding regarding
its separate identity;
(o) maintain adequate capital in light of its
contemplated business
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EXHIBIT 3.3
operations; and
(p) maintain all required qualifications to do
business in the state in which the Property
is located.
E. The following paragraphs (h) and (i) are added to ARTICLE XXII:
(h) Ownership of Partnership Property: Notwithstanding any other
provision of this Agreement and so long as any obligation secured by the
Mortgage remains outstanding and not discharged in full, all property owned by
the Partnership shall be owned by the Partnership as an entity and, insofar as
permitted by applicable law, no Partner shall have any ownership interest in any
Partnership property in its individual name or right, and each Partner's
Partnerships Interest shall be personal property for all purposes.
(i) Conflicting Provisions: In the event any of the provisions of
Article III, paragraph (h) of Article IX, Article XIII, paragraph (d) of Article
XXI, paragraph (h) of Article XXII or this paragraph (i) of Article XXII of this
Agreement shall conflict with any of the other provisions of this Agreement, the
terms of Article III, paragraph (h) of Article IX, Article XIII, paragraph (d)
of Article XXI, paragraph (h) of Article XXII or this paragraph (i) of Article
XXII, as the case may be, shall control.
Part II - Amendment Allowing Assignment of General Partner Interest to Other
General Partners
Article XIV is amended in its entirety to read as follows:
ARTICLE XIV
ASSIGNMENT OF GENERAL PARTNER'S INTEREST
The General Partners shall not assign, pledge, encumber, sell or otherwise
dispose of their interests as General Partners in the Partnership, except to
other or successor General Partners.
Part III - Tax Related Amendments
The following paragraphs (d), (e), (f), (g) and (h) are added to Article VII:
(d) The defined terms in this Article VII shall have the following
meanings:
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EXHIBIT 3.3
A. "Adjusted Capital Deficit" means, with respect to
any Partner, the deficit balance, if any, in such Partner's capital
account as of the end of the relevant fiscal year, after giving effect
to the following adjustments:
(i) Credit to such capital account any amounts which
such Partner is obligated to restore pursuant to any
provision of this Agreement or is deemed to be
obligated to restore pursuant to the penultimate
sentences of Regulations Sections l.7O4-2(g)(1) and
1.704-2(i)(5); and
(ii) Debit to such capital account the items
described in Sections 1.704-1(b)(2)(ii)(d)(5), and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the
Regulations and shall be interpreted consistently therewith.
B. "Code" means the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of
succeeding law).
C. "Excess Nonrecourse Liabilities" has the meaning
set forth in Section 1.752-3 of the Regulations.
D. "Nonrecourse Deductions" has the meaning set forth
in Section 1.704-2(b)(1) of the Regulations.
E. "Nonrecourse Liability" has the meaning set forth
in Section 1.704-2(b)(3) of the Regulations.
F. "Partner Nonrecourse Debt" has the meaning set
forth in Section 1.704-2(b)(4) of the Regulations.
G. "Partner Nonrecourse Debt Minimum Gain" means an
amount, with respect to each Partner Nonrecourse Debt, equal to the
Partnership Minimum Gain that would result if such Partner Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in accordance
with Section 1.704-2(i)(3) of the Regulations.
H. "Partner Nonrecourse Deductions" has the meaning
set forth in Sections 1.704-2(i)(1) and L704-2(i)(2) of the
Regulations.
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EXHIBIT 3.3
I. "Partnership Minimum Gain" has the meaning set
forth in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.
J. "Regulations" means the Income Tax Regulations,
including Temporary Regulations, promulgated under the Code, as such
regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
(e) Capital Account Maintenance.
Capital accounts of the Partners shall at all times
be determined and maintained in accordance with the principles set forth in
Section 1.704-1(b)(2)(iv) of the Regulations.
(f) Minimum Gain.
A. Minimum Gain Chargeback. Except as otherwise
provided in Section 1.704-2(f) of the Regulations, notwithstanding any
other provision hereof, if there is a net decrease in Partnership
Minimum Gain during any fiscal year, each Partner shall be specially
allocated items of Partnership income and gain for such fiscal year
(and, if necessary, subsequent fiscal years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain,
determined in accordance with Regulations Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each
Partner and pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(f)(6) and 1.704(j)(2) of
the Regulations. This Paragraph 4A is intended to comply with the
minimum gain chargeback requirement in Section 1.704-2(f) of the
Regulations and shall be interpreted consistently therewith.
B. Partner Minimum Gain Chargeback. Except as
otherwise provided in Section 1.704-2(i)(4) of the Regulations,
notwithstanding any other provision hereof, if there is a net decrease
in Partner Nonrecourse Debt Minimum Gain attributable to a Partner
Nonrecourse Debt during any Partnership fiscal year, each Partner who
has a share of the Partner Nonrecourse Debt Minimum Gain attributable
to such Partner Nonrecourse Debt, determined in accordance with Section
1.704-2(i)(5) of the Regulations, shall be specially allocated items of
Partnership income and gain for such fiscal year (and, if necessary,
subsequent fiscal years) in an amount equal to such Partner's share of
the net decrease in Partner
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EXHIBIT 3.3
Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse
Debt, determined in accordance with Regulations Section 1.704(2)(i)(4).
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each
Partner and pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2)
of the Regulations. This Paragraph 4B is intended to comply with the
minimum gain chargeback requirement in Section 1.704-2(i)(4) of the
Regulations and shall be interpreted consistently therewith.
(g) Qualified Income Offset.
In the event any Partner unexpectedly receives any
adjustments, allocations or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of
the Regulations, items of Partnership income and gain shall be specially
allocated to each such Partner in an amount and manner sufficient to eliminate,
to the extent required by the Regulations, the Adjusted Capital Account Deficit
of such Partner as quickly as possible. This Paragraph 5 is intended to comply
with the qualified income offset provisions of Section 1.704-1(b) of the
Regulations and shall be interpreted consistently therewith.
(h) Allocation of Excess Nonrecourse Liabilities.
Pursuant to Section 1.752-3 of the Regulations, it is
agreed that any Excess Nonrecourse Liabilities incurred by this Limited
Partnership on or after the effective date of this Amendment (as set forth in
Paragraph 7 hereof) shall be allocated among the Partners in the same manner as
Sales Profits are allocated under Article VII(c).
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EXHIBIT 3.3
This Amendment to Certificate and Agreement of Limited Partnership
shall be effective as of June 8, 1998.
IN WITNESS WHEREOF the undersigned have executed this Amendment
effective as of the date set forth above.
GENERAL PARTNERS:
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
LIMITED PARTNERS:
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx, as
Attorney-In-Fact for the
persons who are Limited Partners
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, as
Attorney-In-Fact for the
persons who are Limited Partners
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EXHIBIT 3.3
Casa Munras GP, LLC hereby accepts the General Partner interests of
Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxx in Casa Munras Hotel Partners, L.P. (the
"Partnership") and agrees to be bound by the Certificate and Agreement of
Limited Partnership, as amended by Amendments 1 through 21, of the Certificate
and Agreement of Limited Partnership of the Partnership.
SUBSTITUTE GENERAL PARTNER
CASA MUNRAS GP, LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Xxxx X. Xxxxxxx
Managing Member
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EXHIBIT 3.3
ASSIGNMENT OF GENERAL PARTNER INTEREST
The undersigned owns a General Partner interest in Casa Munras Hotel
Partners, L.P. (the "Partnership"), representing (i) the rights of a general
partner of the Partnership, including, without limitation, the right to receive
certain acquisition fees and a portion of the net profits of the Partnership and
(ii) a 0.5% interest in the capital of the Partnership representing a 0.5%
partnership interest in the net profits and losses of the Partnership (together
with all payments and distributions therefrom), subject to the terms of the
Certificate and Agreement of Limited Partnership dated March 31, 1978, as
amended, of the Partnership (the "Transferred Interest"). The undersigned does
hereby assign the Transferred Interest to Casa Munras GP, LLC, with this
assignment to be effective on the close of business on June 8, 1998.
Dated: June 8, 1998
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
ACCEPTANCE BY TRANSFEREE
The undersigned accepts the transfer referred to above and agrees to
become a substitute General Partner of Casa Munras Hotel Partners, L.P. (the
"Partnership") with respect to the Transferred Interest and further agrees to be
bound by the Certificate and Agreement of Limited Partnership, as amended, of
the Partnership, as if a party signing the same.
Dated: June 8, 1998
CASA MUNRAS GP, LLC
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Managing Member
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EXHIBIT 3.3
ASSIGNMENT OF GENERAL PARTNER INTEREST
The undersigned owns a General Partner interest in Casa Munras Hotel
Partners, L.P. (the "Partnership"), representing (i) the rights of a general
partner of the Partnership, including, without limitation, the right to receive
certain acquisition fees and a portion of the net profits of the Partnership and
(ii) a 0.5% interest in the capital of the Partnership representing a 0.5%
partnership interest in the net profits and losses of the Partnership (together
with all payments and distributions therefrom), subject to the terms of the
Certificate and Agreement of Limited Partnership dated March 31, 1978, as
amended, of the Partnership (the "Transferred Interest"). The undersigned does
hereby assign the Transferred Interest to Casa Munras GP, LLC, with this
assignment to be effective on the close of business on June 8, 1998.
Dated: June 8, 1998
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
ACCEPTANCE BY TRANSFEREE
The undersigned accepts the transfer referred to above and agrees to
become a substitute General Partner of Casa Munras Hotel Partners, L.P. (the
"Partnership") with respect to the Transferred Interest and further agrees to be
bound by the Certificate and Agreement of Limited Partnership, as amended, of
the Partnership, as if a party signing the same.
Dated: June 8, 1998
CASA MUNRAS GP, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx, Managing Member
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