Exhibit 10.8
FOURTH AMENDMENT
TO AMENDED AND RESTATED AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP
OF
ARISTOCRAT MANOR, LTD.
This Fourth Amendment to Amended and Restated Agreement and Certificate of Limited Partnership of Aristocrat Manor, Ltd. (this “Amendment”), is made as of October 29 2012 (the “Effective Date”), by and between the following parties
(i) Marshall Barclay Coffman, an individual and the “Special Limited Partner of the Partnership,
(ii) George S. Mackey, an individual (the “Withdrawing General Partner”);
(iii) Coffman Holdings, LLC, an Arkansas limited liability company (the “Incoming General Partner”);
(v) Coffman Holdings, LLC (the “Incoming Limited Partner”),
with reference to the following:
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, and for such other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree that the Amended Partnership Agreement is amended as follows:
1. Capitalized terms not defined in this Amendment shall have the meanings set forth in the Amended Partnership Agreement.
2. Effective on the Effective Date:
3. Notwithstanding the withdrawal of the Withdrawing Limited Partner and the Withdrawing General Partner, each of the other Partners elects to continue the business of the Partnership.
1.17 Partners. “Partners” means the Operating General Partner, the Limited Partner and the Special Limited Partner, collectively; “Partner” refers to any one of them.
4.1.1 All Operating Profits shall be allocated Incoming General Partner 1%, Special Limited Partner 1%, and Incoming Limited Partner 98%.
4.1.2.4 Disposition Profits remaining after making the allocation required pursuant to Sections 4.1.2.1, 4.1.2.2. and 4.1.2.3 hereof shall be allocated Incoming General Partner 1%, Special Limited Partner 1%, and Incoming Limited Partner 98%.
4.1.4.2 Disposition Losses remaining after making the allocation required pursuant to Section 4.1.4.1 hereof shall be allocated Incoming General Partner 1%, Special Limited Partner 1%, and Incoming Limited Partner 98%.
9. Section 4.4.1 of the Amended Partnership Agreement is deleted in its entirety.
The Operating General Partner shall distribute Cash From Operations to the Partners from time to time, but not less often than annually and not later than 120 days after the end of the Partnership’s fiscal year, Incoming General Partner 1%, Special Limited Partner 1%, and Incoming Limited Partner 98%.
13.2.2 If to the Limited Partner:
Coffman Holdings, LLC
3801 Woodland Heights Road, Suite 110
Little Rock, AR 72212
12. As a material inducement to the Withdrawing Limited Partner entering into this Amendment, the Withdrawing General Partner represents and warrants to the Withdrawing Limited Partner that the following are true and correct:
(c) The Partnership has obtained all necessary consents and approvals for the transactions contemplated by this Agreement, including, but not limited to, the consent of the holders of all Mortgages and all Governmental Agencies.
13. As a material inducement to the Withdrawing Limited Partner entering into this Amendment, the Incoming Limited Partner hereby represents and warrants to the Withdrawing Limited Partner that the following are true and correct :
(e) The Incoming Limited Partner has incurred no obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Amendment.
15. Notwithstanding the withdrawal of the Withdrawing Limited Partner, the Incoming General Partner acknowledges that from and after the Effective Date matters may arise that relate back to events that occurred prior to the Effective Date (for purposes of illustration and not limitation, audits by the IRS). The Incoming General Partner agrees that as to such matters (i) the Incoming General Partner shall conduct itself in a manner which is consistent with the obligations of the Operating General Partner as such obligations existed immediately prior to the Effective Date and, accordingly, recognize all of the corresponding rights of the Withdrawing Limited Partner as if the Withdrawing Limited Partner had not withdrawn from the Partnership as provided in this Amendment and (ii) that nothing herein shall relieve the Incoming General Partner from such pre-existing obligations. Without limiting the generality of the foregoing, the Incoming General Partner shall:
If the Incoming General Partner shall fail, for any reason, to prepare and/or deliver to the Withdrawing Limited Partner any of the returns or other information required by this paragraph 15, the Withdrawing Limited Partner shall have the right to cause such returns and other information prepared at the sole cost and expense of the Incoming General Partner, plus an administrative fee payable to the Withdrawing Limited Partner in an amount equal to fifteen percent (15%) of the actual out-of-pocket costs incurred by the Withdrawing Limited Partner to have such returns and information prepared. In furtherance of the foregoing, the Withdrawing Limited Partner and its duly authorized representatives shall have the right to inspect and copy such portions of the Partnership’s books of account which are necessary or appropriate for the preparation of such returns and information; provided, however, it is expressly understood and agreed by the Withdrawing Limited Partner that such access is solely for the purpose of preparing such returns or other information that the Incoming General Partner failed to prepare and/or deliver as herein provided, and shall not be deemed to grant the Withdrawing Limited Partner any other rights with respect to the Partnership and/or the operation of its business.
16. Without limiting the generality of the provisions of paragraph 15,
(b) The Tax Matters Partner, shall not, with respect to any matter which could affect the Withdrawing Limited Partner, take any of the following actions without the prior written consent or approval of the Withdrawing Limited Partner:
(v) Intervene in any action brought by any other Partner for judicial review of a final adjustment.
(b) Without limiting any of the other provisions of this Amendment, including, but not limited to, those in paragraph 2(b), the Incoming Limited Partner hereby assumes all of the duties, obligations and responsibilities of “maker” (as that term is defined and used in the Note, under the Note first arising and accruing after the Effective Date. The Incoming Limited Partner hereby agrees to defend and indemnify the Withdrawing Limited Partner, and its affiliates, parent and subsidiary entities, successors, assigns, partners, managers, members, officers, directors, trustees and shareholders from and against any and all claims, costs, liabilities, damages and expenses (including related attorneys’ fees) arising under or in connection with the Note to the extent the same arise or accrue after the Effective Date.
[Signatures on following page(s)]
EXECUTED to be effective as of the Effective Date.
INCOMING GENERAL PARTNER: COFFMAN HOLDINGS, LLC,
an Arkansas limited liability company
By /s/Marshall B. Coffman
Name: Marshall B. Coffman
Title: Managing Member
INCOMING LIMITED PARTNER: COFFMAN HOLDINGS, LLC,
an Arkansas limited liability company
By /s/Marshall B. Coffman
Name: Marshall B. Coffman
Title: Managing Member
SPECIAL LIMITED PARTNER: /s/Marshall Barclay Coffman
MARSHALL BARCLAY COFFMAN
WITHDRAWING GENERAL PARTNER: /s/George S. Mackey
GEORGE S. MACKEY
WITHDRAWING LIMITED PARTNER: REAL ESTATE ASSOCIATES IV,
a California limited partnership
By National Partnership Investments, LLC, Corp.,
a California limited liability company and f/k/a National Partnership Investments Corp. a California corporation,
General Partner
By Bethesda Holdings I, LLC,
a Delaware limited liability company,
its member
By AIMCO/Bethesda Holdings, Inc.,
a Delaware corporation,
its member
By /s/John Bezzant
Name: John Bezzant
Title: Executive Vice President