SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF UNITED DEVELOPMENT FUNDING III, L.P.
EXHIBIT
3.1
SECOND
AMENDMENT TO SECOND AMENDED AND RESTATED
UNITED
DEVELOPMENT FUNDING III, L.P.
This SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED AGREEMENT OF LIMITED PARTNERSHIP of United Development Funding
III, L.P. (the “Partnership”) is made and entered into this 9th day of June,
2009 by UMTH Land Development, L.P., a Delaware limited partnership, as the
General Partner, Xxxx Xxxxx, a Texas resident, as the Initial Limited Partner,
and those parties who from time to time become Limited Partners as provided in
the Second Amended and Restated Agreement of Limited Partnership, as amended, as
the Limited Partners (capitalized terms used but not otherwise defined herein
shall have the meaning ascribed to them in the Second Amended and Restated
Partnership Agreement, as amended by the First Amendment, each as defined
below).
WHEREAS, on June 13,
2005, a Certificate of Limited Partnership was filed with the Secretary of State
of the State of Delaware, pursuant to which the General Partner and the Initial
Limited Partner formed the Partnership under the Delaware Revised Uniform
Limited Partnership Act;
WHEREAS, the parties hereto
previously entered into that certain Agreement of Limited Partnership dated
February 1, 2006;
WHEREAS, the parties hereto
previously entered into that certain Amended and Restated Agreement of Limited
Partnership dated February 9, 2006;
WHEREAS, the parties hereto
previously entered into that certain Second Amended and Restated Agreement of
Limited Partnership dated April 21, 2006 (the “Second Amended and Restated
Partnership Agreement”);
WHEREAS, the parties hereto
previously entered into that certain First Amendment to Second Amended and
Restated Agreement of Limited Partnership dated April 25, 2008 (the “First
Amendment”);
WHEREAS, the parties desire to
amend the Second Amended and Restated Partnership Agreement, as amended by the
First Amendment, to permit the Partnership to continue to offer and sell Units
to Limited Partners pursuant to the Distribution Reinvestment Plan that are in
addition to the Units offered and sold pursuant to the Offering;
NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment to Preamble
to Section 8.5. The preamble to Section 8.5 of the Second
Amended and Restated Partnership Agreement, as amended by the First Amendment,
is hereby deleted in its entirety and replaced with the following:
“8.5 Limited Partner Contributions.
The
General Partner is authorized and directed to raise capital for the Partnership
as provided in the Prospectus by offering and selling not more than an aggregate
of seventeen million five hundred thousand (17,500,000) Units to Limited
Partners pursuant to the Offering and by offering and selling additional Units
to Limited Partners, in an amount to be determined at the sole discretion of the
General Partner, in any subsequent offering of Units to the public pursuant to a
Distribution Reinvestment Plan registered pursuant to a Registration Statement
as follows:”
2. Amendment to First
Paragraph of Section 8.6. The first paragraph of Section 8.6
of the Second Amended and Restated Partnership Agreement, as amended by the
First Amendment, is hereby deleted in its entirety and replaced with the
following:
“8.6 Admission of Limited Partners.
No action or consent by any Limited Partners shall be required for the
admission of Additional Limited Partners to the Partnership, provided that the
Partnership may not issue more than seventeen million five hundred thousand
(17,500,000) Units to Limited Partners pursuant to the Offering, but may issue
additional Units to Limited Partners, in an amount to be determined at the sole
discretion of the General Partner, in any subsequent offering of Units to the
public pursuant to a Distribution Reinvestment Plan registered pursuant to a
Registration Statement. Funds of subscribers for Units pursuant to
the Offering shall be held in the escrow account described in Section 8.8
below. Such funds shall not be released from escrow, and no
subscribers for Units shall be admitted to the Partnership unless and until the
receipt and acceptance by the Partnership of the Minimum Offering. At
any time thereafter, the Capital Contributions of such subscribers may be
released directly to the Partnership, provided that such subscribers in the
initial escrow shall be admitted to the Partnership within fifteen (15) days
after such release. Subscriptions from subsequent subscribers shall
be accepted or rejected within thirty (30) days of receipt by the Partnership,
and if rejected, all funds shall be returned to subscribers within ten (10)
business days. Subsequent subscribers shall be deemed admitted as
Limited Partners of the Partnership on the day on which the subscriptions from
such Persons are accepted by the Partnership.”
3. Amendment to Section
8.9. Section 8.9 of the Second Amended and Restated
Partnership Agreement, as amended by the First Amendment, is hereby deleted in
its entirety and replaced with the following:
“8.9 Public Offering. Subject to
the provisions of Section 8.7 above and subject to compliance with applicable
state securities laws and regulations, the Offering may extend for up to two
years from the date of original effectiveness at the discretion of the General
Partner; provided, however, that the General Partner may elect to extend the
Offering solely for the Units reserved for issuance pursuant to the Distribution
Reinvestment Plan for up to four years from the date of original effectiveness;
provided, further, that the General Partner may issue additional Units to
Limited Partners, in an amount to be determined at the sole discretion of the
General Partner, in any subsequent offering of Units to the public pursuant to a
Distribution Reinvestment Plan registered pursuant to a Registration
Statement. Except as otherwise provided in this Agreement, the
General Partner shall have sole and complete discretion in determining the terms
and conditions of the offer and sale of Units and is hereby authorized and
directed to do all things which it deems to be necessary, convenient,
appropriate and advisable in connection therewith, including, but not limited
to, the preparation and filing of the Registration Statement with the Securities
and Exchange Commission and the securities commissioners (or similar agencies or
officers) of such jurisdictions as the General Partner shall determine, and the
execution or performance of agreements with selling agents and others concerning
the marketing of the Units, all on such basis and upon such terms as the General
Partner shall determine.”
4. Amendment to Section
13.5. Section 13.5 of the Second Amended and Restated
Partnership Agreement, as amended by the First Amendment, is hereby deleted in
its entirety and replaced with the following:
“13.5
Commissions on Reinvestment or
Distribution. The Partnership shall not pay, directly or
indirectly, a commission or fee (except as permitted under Article XII hereof)
to a General Partner in connection with the reinvestment or distribution of the
proceeds of the sale, exchange or financing of Partnership Properties, provided,
however, that any Units purchased pursuant to the Distribution Reinvestment Plan
will be subject to a maximum 1% sales commission, which may be reduced or
eliminated in the sole discretion of the General Partner.”
5. Effect. Except
as set forth above, the Second Amended and Restated Partnership Agreement, as
amended by the First Amendment, shall remain in full force and
effect.
6. Counterparts. This Second Amendment to
Second Amended and Restated Agreement of Limited Partnership may be executed in
one or more counterparts, each of which shall be deemed part of the same
document.
IN WITNESS WHEREOF, the
undersigned hereby execute this Second Amendment to Second Amended and Restated
Agreement of Limited Partnership of United Development Funding III, L.P. under
seal as of the date and year first above written.
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INITIAL
LIMITED PARTNER:
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/s/
Xxxx Xxxxx
XXXX
XXXXX
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GENERAL
PARTNER:
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UMTH
LAND DEVELOPMENT, L.P.
A
Delaware limited partnership
By:
/s/ Xxxxxx X.
Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title:
President and Chief Executive Officer
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ATTEST:
By: /s/ Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Chief Financial Officer, UMTH Land Development, L.P.
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