FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
CANYON SHADOWS, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
This First Amended and Restated Agreement of Limited Partnership (the
"Agreement") is made as of July 15, 1996 by and between Peacock Financial
Corp., a California corporation ("Peacock"), as managing general partner,
Blindness Support Services, Inc., a California nonprofit corporation, as
general partner ("Blindness" and together with Peacock, the "General
Partners"), National Corporate Tax Credit Fund IV, a California limited
partnership, as investor limited partner ("Investor LP"), National Corporate
Tax Credit, Inc. IV, a California corporation, as administrative limited
partner ("Administrative LP" and together with the Investor LP, the "Limited
Partners"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Withdrawing Limited Partner"), and with
reference to the following recitals of fact:
WHEREAS, Peacock is the owner of that certain real property and
improvements thereon located as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Property"); and
WHEREAS, Peacock, as general partner, and the Withdrawing Limited
Partner, as limited partner, entered into that certain Agreement of Limited
Partnership of Canyon Shadows, L.P. (the "Partnership") dated as of July 15,
1996 (the "Initial Agreement"); and
WHEREAS, Peacock, as general partner, the Withdrawing Limited Partner,
the Investor LP and the Administrative LP, as limited partners, entered into
that certain Amendment to the Agreement of Limited Partnership of Canyon
Shadows, L.P. dated as of July 15, 1996 (the "First Amendment" and together
with the Initial Agreement, the "Original Agreement"), wherein the Investor
LP and the Administrative LP were admitted to the Partnership as limited
partners; and
WHEREAS, the Investor LP and the Administrative LP, through clerical
error, were referred to in the First Amendment with the roman numeral VI in
their names rather than the correct roman numeral IV; and
WHEREAS, the parties hereto wish to admit Blindness as a general partner
and to continue the Partnership; and
WHEREAS, the parties hereto wish to amend and restate the Original
Agreement to reflect their respective rights and obligations with respect to
the Partnership.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. WITHDRAWAL OF WITHDRAWING LIMITED PARTNER. The Withdrawing Limited
Partner hereby withdraws as a limited partner of the Partnership. Execution
of this Agreement
shall constitute acknowledgment by the Withdrawing Limited Partner that it
has received from the Partnership the full amount set forth in its capital
account.
2. ADMISSION OF BLINDNESS AS A GENERAL PARTNER. Blindness is hereby
admitted to the Partnership as a general partner thereof, and whenever the
term General Partner or General Partners is used in the Agreement it shall be
deemed to mean Peacock and/or Blindness. Blindness hereby agrees to assume
all obligations of a general partner pursuant to the Original Agreement, as
amended hereby.
3. CONTINUATION OF LIMITED PARTNERSHIP. The General Partners and the
Limited Partners hereby continue the limited partnership pursuant to the
California Revised Limited Partnership Act. The parties hereto do hereby
amend and restate the Original Agreement by substituting this Agreement in
its entirety for the Original Agreement. As of the date hereof, the Original
Agreement shall be of no further force or effect , and all rights and
obligations of the Partners shall be governed by this Agreement. All
references to "Partner" or "Partners" in this Agreement shall include the
General Partners and the Limited Partners.
4. NAME AND PRINCIPAL OFFICE. The name of the Partnership is Canyon
Shadows, L.P., a California limited partnership, whose principal office and
place of business is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location within the State of California as
may hereafter be determined by the General Partners.
5. PURPOSE. The business and purpose of the Partnership shall be to
acquire, own, manage and operate the Property as an affordable housing
project, and to enter into such agreements and make such presentations before
governmental authorities as are necessary for, and to carry out the
management and operation of the Property as an affordable housing project.
6. CERTIFICATES. The Partnership has caused a Certificate of Limited
Partnership (Form LP-1) to be filed in the Office of the Secretary of State
of the State of California on July 15, 1996 as File No. 9619700018. In
addition, the Partnership shall cause an Amendment to Certificate of Limited
Partnership (Form LP-2) to be filed in the Office of the Secretary of State
of the State of California to reflect the admission of Blindness as a general
partner.
7. DESIGNATION OF AGENT FOR SERVICE OF PROCESS. The agent for service
of process for the Partnership shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, whose address is
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
8. TERM OF PARTNERSHIP. The Partnership shall commence on July 15,
1996 and shall terminate on December 31, 2051.
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9. PERCENTAGE INTERESTS. Each Partner shall have the following
percentage interests in the Partnership (each, a "Percentage Interest"):
Peacock shall have a .5% Percentage Interest in the Partnership, as managing
general partner; Blindness shall have a .5% Percentage Interest in the
Partnership, as a general partner; Investor LP shall have a 98.9% Percentage
Interest in the Partnership, as a limited partner; and Administrative LP
shall have a .1% Percentage Interest in the Partnership, as a limited partner.
10. LIMITATION OF LIABILITY. Except as otherwise provided by law, the
Limited Partners shall not be liable to the Partnership for any cash or
property in excess of their capital contributions.
11. TAXABLE GAIN, TAX LOSS AND DISTRIBUTIONS. All taxable gains and tax
losses, distributions and tax credits shall be allocated as follows: .5% to
Peacock, .5% to Blindness, 98.9% to Investor LP and .1% to Administrative LP.
12. CAPITAL ACCOUNTS. A capital account shall be maintained for each
Partner in accordance with Treasury Regulations section 1.704-1(b)(2)(iv).
Each Partner shall have the following initial capital account to reflect each
Partner's initial capital contribution to the Partnership (each, a "Capital
Account"): the Capital Account of Peacock shall be $975,000; the Capital
Account of Blindness shall be $10; the Capital Account of the Investor LP
shall be $99; and the Capital Account of the Administrative LP shall be $1.
13. MANAGEMENT OF PARTNERSHIP.
a. MANAGING GENERAL PARTNER. Subject to subparagraph (b) below,
Peacock shall act as the managing general partner (the "Managing General
Partner") of the Partnership and, in such capacity, shall have control over
the day-to-day operations of the Partnership and shall have all rights,
powers and authority conferred by law as necessary, advisable or consistent
in connection therewith. Without limiting the generality of the foregoing,
but subject to paragraph 12.b below, the Managing General Partner shall have
the right, power and authority to execute any documents relating to the
financing, rehabilitation, construction, operation and sale of all or any
portion of the Property without the prior approval of the other Partners.
b. CONSENT OF THE GENERAL PARTNER. Notwithstanding anything to
the contrary contained herein, including, without limitation, Section 12(a)
hereof, in addition to those acts and decisions set forth elsewhere in this
Agreement, the Partnership shall not take any act, expend any sum, or incur
any obligation with respect to the following matters unless and until the
same has been approved in writing by all of the General Partners and the
Administrative LP:
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(1) Acquisition of any asset unrelated to the ownership and
operation of the Property by the Partnership;
(2) Sale, exchange, assignment, financing, refinancing or
mortgaging of all or a substantial part of any Partnership asset (other than
credit extended to the Partnership by usual trade creditors in the ordinary
course of Partnership business);
(3) Lending any funds or extending credit, or causing the
Partnership to become a guarantor or surety for any purpose;
(4) The release, assignment or transfer of any Partnership
claim, security interest, or all or any part of any other asset of the
Partnership;
(5) Confessing a judgment against the Partnership;
(6) Requesting that the General Partners and/or the Limited
Partner make any additional capital contribution to the Partnership;
(7) The filing of bankruptcy by the Partnership;
(8) The execution or delivery of any assignment of all or
substantially all of the Partnership's assets for the benefit of the
Partnership's creditors;
(9) The use by any Partner, or any individual or entity
affiliated with a Partner, of any real or personal property owned by the
Partnership for a purpose other than in furtherance of the Partnership's
business;
(10) The adoption of annual operating budgets, or any other
periodic operating budgets for the Partnership;
(11) Borrowing any sums, or obtaining any credit on behalf of
the Partnership;
(12) The execution of any contract, instrument or agreement
obligating the Partnership, or potentially obligating the Partnership, or
exposing the Partnership to liability, in an amount greater than $1,000,
except as contemplated within the Property's operating budget; and
(13) The amendment of any material contract to which the
Partnership is a party.
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14. TRANSFER OR PLEDGE. A Partner's interest in the Partnership shall
not be assigned, pledged, sold or otherwise transferred, in whole or in part,
without the prior written consent of the Managing General Partner.
15. ADDITIONAL OR SUBSTITUTED PARTNERS. Upon the prior written consent
of the General Partners, additional general or limited partners or substitute
general or limited partners may be admitted to the Partnership upon such
terms and conditions as the General Partners deem necessary.
16. INDEMNIFICATION. The Partnership does hereby indemnify, defend and
agree to hold the General Partners wholly harmless from and against any loss,
expense or damage suffered by a General Partner by reason of anything which
the General Partner may do or refrain from doing hereafter for or on behalf
of the Partnership and in furtherance of its interest; provided, however,
that the Partnership shall not be required to indemnify a General Partner
from any loss, expense or damage which a General Partner may suffer as a
result of its failure to perform its duties hereunder in good faith with due
diligence or in taking any action beyond the authority of the General Partner.
17. DISSOLUTION AND WINDING UP. Upon the expiration of the
Partnership's term or the written notice to the Partnership by the General
Partners or the Limited Partners, the Partnership shall be dissolved and the
business wound up.
18. GOVERNING LAW. The validity and enforceability of this Agreement
shall be governed by and construed in accordance with the laws of the State
of California in every respect and unless expressly or by necessary
implication contravened by any provisions hereof, the provisions of the
California Revised Limited Partnership Act shall prevail.
19. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which shall constitute one
and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
"GENERAL PARTNERS"
PEACOCK FINANCIAL CORP., a California
corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
[Signatures Continued on Next Page]
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BLINDNESS SUPPORT SERVICES, INC.,
a California nonprofit corporation
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Executive Director
"LIMITED PARTNERS"
NATIONAL CORPORATE TAX CREDIT
FUND IV, a California limited partnership
By: National Partnership Investments
Corp., a California corporation,
General Partner
By:
---------------------------------
Name:
----------------------------
Title:
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NATIONAL CORPORATE TAX CREDIT,
INC. IV, a California corporation
By:
---------------------------------
Name:
----------------------------
Title:
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"WITHDRAWING LIMITED PARTNER"
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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