AMENDMENT TO AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF CENTURY PROPERTIES FUND XVII, LP
Exhibit 3.2
This AMENDMENT TO THE AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF CENTURY PROPERTIES
FUND XVII, LP, dated as of May 9, 2011 (this “Amendment”), is made by Fox Partners, a
California general partnership (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 Partnership
Agreement (as defined below).
WHEREAS, Century Properties Fund XVII, LP, a Delaware limited partnership (the
“Partnership”), is governed pursuant to the terms of that certain Amended and Restated
Limited Partnership Agreement of Century Properties Fund XVII, LP, made as of November 12, 1981, as
amended and restated to March 24, 1982, and as amended to date (the “Partnership
Agreement”);
WHEREAS,
pursuant to Section 24.1 of the Partnership Agreement, the General Partner is authorized to
amend the Partnership 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:
| 1. | Amendments to the Partnership Agreement. The Partnership Agreement is hereby amended by the addition of a new Article 25, which will read in its entirety as follows: |
25. DESIGNATION OF SERIES OF PARTNERSHIP INTERESTS
25.1 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.
(c) Each series of interests shall entitle the holders thereof to the
respective rights set forth in this Article 25. 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.
25.2 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)
all of the Partnership’s assets, other than its interest in the Series B Subsidiary
(as defined below), (ii) all consideration received by the Partnership from the
issuance or sale of any Series A Interest, 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.
25.3 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 membership interest in Apartment Lodge 17A LLC, a Colorado
limited liability company (the “Series B Subsidiary”), (ii) all
consideration received by the Partnership from the issuance or sale of any Series B
Interest, 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, 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 B Interest, shall have any claim on or any
right to any assets allocated solely to the Series B Interests.
25.4 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.
25.5 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.
25.6 Distributions to Partners of Each Series. From and after the
Establishment Date, all distributions to Partners (including
distributions comprised of Cash Available for Distribution and
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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 25.2 and 25.3.
25.7 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
Partnership 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
Income and Net Loss allocated to such series, and (iii) distributions paid in
respect of such series.
25.8 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.
25.9 Transfers of Series Interests. Each series of interests shall be
transferable separate and apart from each other series pursuant to the terms of the
Partnership Agreement.
25.10 Voting & Approval Rights. If any term or provision of the Partnership
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 Partnership 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 Partnership 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 Section 16.3 of
the Partnership Agreement, meetings of the Limited Partners to vote upon any matters
on which the Limited Partners are authorized to take action under this Partnership
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.
25.11 Tax Treatment. For United States federal income tax purposes, each
series of interests shall represent a separate and distinct entity treated as a
partnership.
25.12 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 5.5 of the Partnership 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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| 2. | Miscellaneous. |
| (a) | Effect of Amendment. In the event of any conflict or inconsistency between the terms of the Partnership 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. | ||
| (b) | Ratification. Except as otherwise expressly modified hereby, the Partnership Agreement shall remain in full force and effect, and all of the terms and provisions of the Partnership Agreement, as herein modified, are hereby ratified and reaffirmed. | ||
| (c) | 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.
| FOX PARTNERS, | ||||||||||
| a California general partnership | ||||||||||
| By: | FOX CAPITAL MANAGEMENT CORPORATION, |
|||||||||
| Managing General Partner | ||||||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||||||
| Title: Vice President and | ||||||||||
| Assistant General Counsel | ||||||||||
[Signature Page – CPF XVII – Amendment to the
Amended and Restate Limited Partnership Agreement]
Amended and Restate Limited Partnership Agreement]