THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
OF
SYDNEY ENGEL ASSOCIATES L.P.
This Third Amendment to the Second Amended and Restated Agreement of
Limited Partnership ("Second Amendment") of SYDNEY ENGEL ASSOCIATES L.P. is made
and entered into as of the 18th day of April, 1997, by and among the undersigned
parties.
WHEREAS, as of June 1, 1990, THE ENGEL GROUP, INC., a New York
corporation with an office at 124 Atlantic Avenue, Lynbrook, New York 11563
("Engel"), THE RICHMAN GROUP, INC., a Delaware corporation with an office at 599
West Putnam Avenue, Greenwich, Connecticut 06830 ("Richman") and TWIN CASTLE
GROUP INC., a New York corporation with an office at 550 Brush Avenue, Bronx,
New York 10465 ("Twin Castle") (Engel, Richman and Twin Castle sometimes
hereinafter being referred to collectively as the "Original General Partners")
and AMERICAN TAX CREDIT PROPERTIES III L.P., a Delaware limited partnership with
an office c/o Richman (the "Limited Partner") entered into the Second Amended
and Restated Agreement of Limited Partnership (the "Agreement") of Sydney Engel
Associates L.P. (the "Partnership"); and
WHEREAS, as of March 24, 1997, the Original General Partners and the
Limited Partner entered into a First Amendment of the Agreement, which inter
alia, authorized the execution of a Certificate of Adoption of the Revised
Limited Partnership Act (Article 8-A of the Partnership Law of the State of New
York) (the "Revised Act") and an Amendment thereto changing the name of the
Partnership to Sydney Engel Associates L.P.
WHEREAS, as of today's date, and immediately prior to the execution of
this Agreement, the Original General Partners and the Limited Partner entered
into a Second Amendment of the Agreement, which, inter alia, effectuated the
withdrawal of Twin Castle as a General Partner and the acquisition of its
interest by the Partnership ;
WHEREAS, the parties now desire to enter into this Third Amendment to
(i) continue the Partnership, (ii) effect the withdrawal of Twin Castle as a
General Partner and the transfer of its interest to the Partnership, (iii)
reassign the interests of the Partners, and (iv) authorize the filing of a
Certificate with the New York State Department of State reflecting the interest
of Engel as the sole General Partner.
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of
the parties hereto and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to continue the
Partnership pursuant to the Revised Act, as set forth in this Third Amendment,
as follows:
1. All initially capitalized terms shall have the meanings ascribed to
them in the Agreement, unless otherwise provided herein. This Agreement may be
signed in counterparts.
2. Upon the execution of the Third Amendment by the parties hereto, the
Managing General Partner (i.e., Engel) shall take all actions necessary and
appropriate to assure the prompt filing of a Certificate of Amendment pursuant
to Section 121-202 of the Revised Act reflecting the withdrawal of Twin Castle
and Richman as General Partners. (This obviates the need for filing the
Certificate contemplated in the Second Amendment.) All fees for the filing shall
be paid out of the Partnership's assets.
3. Selected definitions in Article II ("DEFINED TERMS") of the
Agreement are hereby amended,
as follows:
"Act" means the Uniform Limited Partnership Act of the State, except
that, as of March 27, 1997, with the filing of the Certificate of Adoption with
the New York State Department of State, the Revised Limited Partnership Act
shall control.
"Final Closing" means the occurrence of the following: (i)
Substantial Completion and (ii) the
conversion of the Construction Loans to Mortgage Loans as of the date hereof.
"General Partners" or "General Partner" means The Engel Group, Inc. and
any other Person admitted as a general partner pursuant to this Agreement, and
their respective successors pursuant to this Agreement, including the provisions
of Sections 6.03, 8.01 and 8.13.
"Partnership" means Sydney Engel Associates L.P.
"Special Limited Partner" [new] means "The Richman Group, Inc."
formerly, a General Partner), which may be considered to be a Limited Partner,
except as may be specifically provided in the Agreement.
4. (a) Schedule A of the Agreement as referred to in Section 5.01
thereof, is amended to reflect the withdrawal of Twin Castle and Richman as
General Partners and the addition of Richman as Special Limited Partner:
General Partner Partnership Interest
The Engel Group, Inc. 2/3%
Limited Partner
American Tax Credit Properties III L.P. 99%
Special Limited Partner
The Richman Group 1/3%
(b) The execution of this Third Amendment by the Limited Partner
constitutes its consent to the conversion described herein and to the amendment
of the Agreement pursuant to Article XIV thereof.
5. The withdrawal of Richman as a General Partner from the Partnership
does not constitute its disclaimer and renunciation of any further fees, profits
or other payments arising out of or pertaining to the Partnership and/or the
Project, including but not limited to fees, profits or other payments arising
out of the Partnership Administration Services Agreement by and among Engel,
Richman and Twin Castle and the Development Agreement by and among Sydney Engel,
Richard P. Richman and Michael Contillo, both dated June 1, 1990. The parties
hereto acknowledge and agree that Richman shall continue to enjoy the benefits
and assume the burdens under such Agreements, as if it were still a General
Partner. Similarly, Richman may not obtain any of the aforesaid payments
otherwise due to General Partners if fees are withheld pursuant to Section 8.12.
6. Section 11.01(a) provides that , "to the extent that the Partnership
does not distribute at least $5,000 to the Investment Partnership (from Net Cash
Flow or otherwise) in any year, the General Partners... hereby covenant that
they (sic) will pay to the Investment Partnership in any year an amount equal to
such shortfall..." It is agreed between the Engel and Richman, that if Engel is
obligated to make such payment that Richman will pay one-third of such amount
due.
7 Section 11.03(a)(iii) is amended to read: "... third, gain
in excess of the amount allocated under (i) and (ii) shall be allocated
50.50% to the General Partner and the Special Limited Partner in accordance
with their respective Partnership Interests and 49.50% to the Investment
Partnership."
8 (a) Section 11.04(e) is amended to reflect that the sum remaining from
the sale and liquidation of Partnership Property shall be distributed to the
General Partners and the Special Limited Partner (in accordance with their
respective Partnership Interests) until they have received an amount equal to
their Capital Contributions, reduced by all cash previously distributed to them
pursuant to Section 11.04.
8 (b) Section 11.04(g) is amended and clarified to provide that the
residual proceeds from the sale and liquidation of Partnership Property and the
net proceeds from the sale of Partnership Property or refinancing of the
Apartment Complex or a Capital Transaction shall be made 50.50% to the General
Partner and the Special Limited Partner in accordance with their respective
Partnership Interests and 49.50% to the Investment Partnership.
9 Section 16.08 of the Agreement is amended to provide for notices to be
sent to Engel, Richman and the Investment Partnership to the addresses set forth
on the first page of this Agreement.
Copies of Notices to the Limited Partners shall be sent to:
Peabody & Brown
1255 23rd Street, NW
Washington, D.C. 20037-1170
Attention: Herbert F. Stevens, Esq.
Copies of Notices to Engel shall be sent to:
Hirschen & Singer
36 West 44th Street, Suite 712
New York, N.Y. 10036
Attention: Richard C. Singer, Esq.
IN WITNESS WHEREOF, the parties have affixed their signatures to this
Third Amendment to the Second Amended and Restated Agreement of Limited
Partnership of Sydney Engel Associates L.P. as of the date first above written.
GENERAL PARTNER:
ATTEST/WITNESS: THE ENGEL GROUP, INC.
By: /s/ Sydney Engel
Sydney Engel, President
WITHDRAWING GENERAL PARTNER &
SPECIAL LIMITED PARTNER:
ATTEST/WITNESS: THE RICHMAN GROUP, INC.
/s/ Ann H. McGuire By: /s/ Richard P. Richman
Richard P. Richman, President
LIMITED PARTNER:
AMERICAN TAX CREDIT PROPERTIES III L.P.
By: Richman Tax Credit Properties III L.P., its
general partner
ATTEST/WITNESS: By: Richman Housing Credits Inc., its general partner
/s/ Mary K. Holzer By: /s/ David Salzman
David Salzman, Vice President
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this day of April, 1997, before me personally came Sydney Engel, to
me known, who being by me duly sworn, did depose and say that he resides at ,
New York; that he is the President of THE ENGEL GROUP, INC., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by order of the board of directors of said corporation.
Notary Public
STATE OF CONNECTICUT )
) SS.: Greenwich
COUNTY OF FAIRFIELD )
On this 18th day of April, 1997, before me personally came Richard P.
Richman to me known, who being by me duly sworn, did depose and say that he
resides at 7 Dwight Lane, Greenwich, CT, 06831, that he is the President of THE
RICHMAN GROUP, INC., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of said corporation.
/s/ Mary K. Holzer
Notary Public
STATE OF CONN. )
) SS.: Greenwich
COUNTY OF FAIRFIELD )
On this 18th day of April, 1997, before me personally came DAVID
SALZMAN, to me known, who being by me duly sworn, did depose and say that he
resides at 12 Varian Lane, Scarsdale, NY, 10583; that he is the Vice-President
of RICHMAN HOUSING CREDITS INC., the corporation described in and which executed
the foregoing instrument; which corporation is the general partner of Richman
Tax Credit Properties III L.P., the general partner of AMERICAN TAX CREDIT
PROPERTIES III L.P., the limited partnership which executed the foregoing
instrument; that the execution of the instrument by AMERICAN TAX CREDIT
PROPERTIES III L.P. was duly authorized according to the Limited Partnership
Agreement; that RICHMAN HOUSING CREDITS INC., the general partner of its general
partner, executed the instrument on behalf of the limited partnership pursuant
to said authorization and that he signed his name thereto by order of the board
of directors of said corporation.
/s/ Ann H. McGuire
Notary Public