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EXHIBIT 3.6
FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
CAPTEC FRANCHISE CAPITAL PARTNERS X.X.XX
This First Amendment (the "Amendment") to the Amended and Restated
Agreement of Limited Partnership of Captec Franchise Capital Partners X.X. XX
(the "Partnership Agreement") is entered into as of the 31st day of March,
1997, by Captec Franchise Capital Corporation IV, a Michigan corporation (the
"Managing General Partner") and general partner of the Partnership.
RECITALS:
A. Any capitalized term that is not defined herein shall have the meaning
assigned to it in the Partnership Agreement.
B. The securities administrators of the States of Minnesota and Missouri
have requested that certain changes be made to the Partnership Agreement.
C. Section 14.2.15(c) provides that the Managing General Partner, without
the approval of the Limited Partners, may amend the Partnership Agreement as so
required by a state securities commission or similar such official if such
revision is deemed by such commission or official to be for the benefit or
protection of the Limited Partners.
D. The General Partners have determined that the amendments to the
Partnership Agreement required by the securities administrators of the States
of Minnesota and Missouri are deemed by such officials to be for the benefit
or protection of the Limited Partners.
E. The parties desire to amend the Partnership Agreement as set forth
below.
NOW, THEREFORE, in consideration of mutual promises made herein, the
parties hereto hereby agree as follows:
1. Section 12.1.4 of the Partnership Agreement is amended to read in its
entirety as follows:
if the Managing General Partner determines in its sole discretion that
such assignment would prevent the Partnership from being able to satisfy
either the 2% or 5% "safe harbors" contained in Service Advance Notice
88-75 or in corresponding regulations or the Partnership has received an
opinion of counsel or a favorable service ruling that such transfer would
result in the Partnership being classified as a "publicly-traded
partnership" for federal income tax purposes.
2. The first sentence of Section 14.4.5 of the Partnership Agreement is
amended to read in its entirety as follows:
cause the Partnership to invest in any Asset with unaffiliated parties
that own one or more Assets through co-tenancy arrangements, joint
ventures or general partnerships except on substantially the same terms
and conditions (although not necessarily the same percentage interest) as
such unaffiliated parties; provided, however, that no such investment
shall be entered into by the Partnership (i) if it involves the payment of
duplicative property management or other fees which would have the effect
of circumventing any of the restrictions on and prohibited transactions
involving conflicts of interest contained in this Partnership Agreement,
and (ii) unless the Partnership acquires a controlling interest in such
joint venture or partnership.
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3. Section 15.3 of the Partnership Agreement is amended to read in its
entirety as follows:
15.3 Consent Without a Meeting. The Managing General Partner may and,
upon receipt of a request in writing signed by ten percent (10%) or more
in interest of the Limited Partners, the Managing General Partner shall,
submit any matter upon which the Limited Partners are entitled to act, to
the Limited Partners for a vote by written consent without a meeting.
4. Except as modified herein, the Partnership Agreement remains unchanged,
and, as modified, continues in full force and effect.
IN WITNESS WHEREOF, the Managing General Partner has executed this
Amendment as of the date first above written.
CAPTEC FRANCHISE CAPITAL CORPORATION IV
By:
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Xxxxxxx X. Beach
President and
Chief Executive Officer
President and Chief Executive Officer
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