exv3w2
Exhibit 3.2
FIFTH AMENDMENT
TO
THE SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3, LP
This FIFTH AMENDMENT TO THE SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3, LP, dated as of
May 9, 2011 (this
“Amendment”), is made by ConCap Equities, Inc., a Delaware corporation (the “General
Partner”). All capitalized terms used in this Amendment but not otherwise defined herein shall
have the respective meanings given to them in the Agreement (as defined below).
WHEREAS, Consolidated Capital Institutional Properties/3, LP, a Delaware limited partnership
(the “Partnership”), is governed pursuant to the terms of that certain Second Amended and
Restated Limited Partnership Agreement of Consolidated Capital Institutional Properties/3, dated as
of May 22, 1984, as amended to date (the “Agreement”);
WHEREAS, pursuant to Article XXI of the Agreement, the General Partner is
authorized to amend the Agreement as it determines may be necessary or desirable to
establish, and convert existing limited partnership interests into, different designated series of
limited partnership interests that have separate rights with respect to specified partnership
property, in accordance with Section 17-218 of the Delaware Revised Uniform Limited Partnership
Act; and
WHEREAS, the General Partner has determined that the Partnership’s existing partnership
interests should be converted into two separate series of partnership interests that have separate
rights as set forth in this Amendment.
NOW, THEREFORE, in consideration of these premises and of the mutual provisions, conditions
and covenants herein contained, the parties hereto do hereby agree as follows:
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Amendments to the Partnership Agreement. The Agreement is
hereby amended by the addition of a new Article XXII, which will read in its entirety as
follows: |
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XXII. DESIGNATION OF SERIES OF PARTNERSHIP INTERESTS |
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22.01 Designation of Series; Conversion of Existing Interests. |
(a) There is hereby established two series of interests in the Partnership,
with each series comprised of both the General Partner’s interest in the Partnership
and the Limited Partners’ interest in the Partnership. The General Partner’s
interest is hereby designated as the “Series A GP Interest” and the “Series B GP
Interest.” The Limited Partners’ interests are hereby designated as “Series A
Units” and “Series B Units.” The Series A GP Interest and the Series A Units are
referred to herein, collectively, as the “Series A Interests,” and the Series B GP
Interest and the Series B Units are referred to herein, collectively, as the “Series
B Interests.”
(b)
Effective as of the close of business on May 9, 2011 (the
“Establishment Date”), without any further action by the General Partner or
any Limited Partner, (i) each then outstanding interest of the General Partner in
the Partnership shall automatically be converted into a Series A GP Interest and a
Series B GP Interest, and (ii) each then outstanding Unit of limited partnership
interest in the Partnership shall automatically be converted into one Series A Unit
and one Series B Unit.
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(c) Each series of interests shall entitle the holders thereof to the
respective rights set forth in this Article XXII. The relative rights of the
General Partner, on one hand, and the
Limited Partners, on the other, prior to the Establishment Date shall be maintained
after the Establishment Date, but considered on a series by series basis.
22.02 Series A Interests. From and after the Establishment Date, the
following assets shall be allocated solely to the Series A Interests for all
purposes, and shall be so recorded upon the books of account of the Partnership: (i)
any assets other than the Series B Asset (as defined below), (ii) all consideration
received by the Partnership from the issuance or sale of any Series A Interests, or
from any additional capital contributions relating to the Series A Interests, and
all assets in which such consideration is invested, and (iii) all interest,
dividends, distributions, income, earnings, profits, gains and proceeds from any
assets described in the foregoing clauses (i) and (ii), including any proceeds
derived from the refinancing, sale or other disposition of such assets, and any
funds or payments derived from any reinvestment of such proceeds. No Person, other
than a Person who holds a Series A Interest, shall have any claim on or any right to
any assets allocated solely to the Series A Interests.
22.03 Series B Interests. From and after the Establishment Date, the
following assets shall be allocated solely to the Series B Interests for all
purposes, and shall be so recorded upon the books of account of the Partnership: (i)
all of the Partnership’s interest in Lamplighter Park Apartments (the “Series B
Asset”), (ii) all consideration received by the Partnership from the issuance or
sale of any Series B Interests, or from any additional capital contributions
relating to the Series B Interests, and all assets in which such consideration is
invested, and (iii) all interest, distributions, income, earnings, profits, gains
and proceeds from any assets described in the foregoing clauses (i) and (ii),
including any proceeds derived from the refinancing, sale or other disposition of
such assets, and any funds or payments derived from any reinvestment of such
proceeds. No Person, other than a Person who holds a Series B Interest, shall have
any claim on or any right to any assets allocated solely to the Series B Interests.
22.04 Allocation of Certain Assets and Income. If there are any assets,
income, earnings, profits, proceeds, funds or payments that are not readily
identifiable as belonging to any particular series of interests, the General Partner
shall allocate them among any one or more of the series in such manner and on such
basis as the General Partner, in its sole discretion, deems fair and equitable,
which determination shall be conclusive and binding on the Limited Partners of all
series for all purposes.
22.05 Liabilities and Expenses of Each Series. The debts, liabilities and
obligations incurred, contracted for or otherwise existing with respect to each
series of interests shall be enforceable only against the assets allocated to such
series, and not against the Partnership generally or the assets of any other series
of interests. The interests of each series shall be charged with all expenses,
costs, charges and reserves attributable to such series, and shall not be charged
with any expenses, costs, charges or reserves attributable to any other series or
the assets of such other series. The General Partner’s determination of which
debts, liabilities and obligations, and which expenses, costs, charges and reserves,
are attributable to each series of interests shall be conclusive and binding on the
Limited Partners of all series for all purposes. Any Person extending credit to,
contracting with or otherwise having a claim against any series of interests may
look only to the assets of that series to satisfy any such obligation or claim, and
not against the assets of the Partnership generally or the assets of any other
series. Any general liabilities, expenses, costs, charges or reserves of the
Partnership that are not readily identifiable as belonging to any particular series
of interests shall be allocated and charged by the Partnership to and among one or
more of the series in such manner and on such basis as the General Partner, in its
sole discretion, deems fair and equitable, which allocation shall be conclusive and
binding on the Limited Partners of all series for all purposes.
22.06 Distributions to Partners of Each Series. From and after the
Establishment Date, all distributions to Partners (including distributions comprised
of Distributable Cash From Operations
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and Surplus Funds and distributions upon
termination and dissolution of the Partnership) shall be determined on a series by
series basis in accordance with the criteria set forth in Sections 22.02
and 22.03.
22.07 Capital Accounts for Each Series. On the Establishment Date, for each
series of interests, a separate capital account shall be established on the books of
the Partnership for each Partner who holds such series, which shall initially
consist of that portion of such Partner’s existing capital account that relates to
the assets of such series. Thereafter, the capital account of each Partner who
holds any series of interests shall be adjusted in the manner set forth in the
Agreement, but on a series by series basis, with respect to (i) capital
contributions relating to such series, (ii) that portion of the Partnership’s Net
Profits and Net Losses allocated to such series, and (iii) distributions paid in
respect of such series.
22.08 Separate Books and Records. Separate and distinct books and records
shall be maintained for each series of interests, and the assets and liabilities
associated with a particular series shall be held and accounted for separately from
the other assets and liabilities of the Partnership and other series. The
Partnership shall prepare, and provide to Limited Partners (to the extent not
included in the Partnership’s filings with the Securities and Exchange Commission),
quarterly financial reports (which need not be audited) for each series.
22.09 Transfers of Series Interests. Each series of interests shall be
transferable separate and apart from each other series. Notwithstanding Section
5.01 of the Agreement, a minimum of twenty (20) Units of any particular series may
be transferred, except for IRA or Keogh plans and except for transfers by gift or
inheritance, intrafamily transfers, family dissolutions and transfers to affiliates.
22.10 Voting & Approval Rights. If any term or provision of the Agreement
requires the vote, consent or approval of Limited Partners holding a majority of the
Units, such term or provision shall be deemed to require the vote, consent or
approval of Limited Partners holding a majority of outstanding Units of each series,
except with respect to any matter or action relating only to a particular series or its
assets, which shall require only the vote, consent or approval of Limited Partners
holding a majority of the outstanding Units of such series.
For the avoidance of doubt, the provisions of the Agreement that require the vote, consent or approval of Limited Partners
with respect to any matter relating to the Partnership as a whole or the Agreement shall not be deemed to require the vote,
consent or approval of Limited Partners for similar matters that relate only to a series of interests.
Notwithstanding Article
XIV of the Agreement, meetings of the Limited Partners to vote upon any matters on
which the Limited Partners are authorized to take action under this Agreement may be
called at any time by the General Partner or (i) in the case of any matter that is
subject to the vote, consent or approval of Limited Partners holding a majority of
outstanding Units of each series, by one or more Limited Partners holding more than
10% of the outstanding Units of each series, or (ii) in the case of any matter that
is subject to the vote, consent or approval only of Limited Partners holding a
majority of outstanding Units of a particular series, by one or more Limited
Partners holding more than 10% of the outstanding Units of such series, in either
case, by delivering written notice, either in person or by registered mail, of such
call to the General Partner.
22.11 Repurchase of Units. From and after the Establishment Date, a
repurchase of Units of any series may be effected pursuant to Article VI of the
Agreement with the Adjusted Net Asset Value calculated separately for each series of
Units in accordance with the criteria set forth in this Article XXII.
22.12 Tax Treatment. For United States federal income tax purposes, each
series of interests shall represent a separate and distinct entity treated as a
partnership.
22.13 Termination of a Series. Any series of interests may be terminated
only upon (i) the termination and dissolution of the Partnership, (ii) the vote or
written consent of Limited Partners holding a majority of the outstanding Units of
such series, or (iii) the sale or other disposition of all or substantially all of
the assets of such series. Upon termination of a series, the General Partner shall
proceed to wind up the affairs of such series, and the Partnership shall not carry
on any business in respect of such series except for the purpose of winding up its
affairs. The termination of a series shall not be deemed a termination or dissolution of the Partnership
unless it is the only remaining series. The General Partner shall not have any obligation to
contribute cash to the capital of the Partnership pursuant to Section 9.02(d) of the Agreement
upon the termination of a series unless such series is the only remaining series and such
termination constitutes the termination and dissolution of the
Partnership.”
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(a) |
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Effect of Amendment. In the event of any conflict or inconsistency
between the terms of the Agreement and the terms of this
Amendment, the terms of this Amendment shall prevail, and any conflicting or
inconsistent provisions shall be reconciled and construed to give effect to the terms
and intent of this Amendment. |
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(b) |
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Ratification. Except as otherwise expressly modified hereby, the
Agreement shall remain in full force and effect, and all of the terms and
provisions of the Agreement, as herein modified, are hereby ratified and
reaffirmed. |
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(c) |
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Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO
ITS PRINCIPLES OF CONFLICTS OF LAW. |
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the date first set
forth above.
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CONCAP EQUITIES, INC.,
a Delaware corporation
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By: |
/s/
Trent A. Johnson
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Name: |
Trent A. Johnson |
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Title: |
Vice President and Assistant General Counsel |
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