Attached files
file | filename |
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8-K - FORM 8-K - REAL ESTATE ASSOCIATES LTD VII | real7arkoak_8k.htm |
EX-10.3 - EXHIBIT 10.3 - REAL ESTATE ASSOCIATES LTD VII | real7arkansas_ex103.htm |
Exhibit 10.4
THIRD AMENDMENT
TO AMENDED AND RESTATED AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP
OF
OAKVIEW APARTMENTS, LIMITED PARTNERSHIP
This Third Amendment to Amended and Restated Agreement and Certificate of Limited Partnership of Oakview Apartments, Limited Partnership (this Amendment), is dated for reference purposes only January 1st, 2012, by and between DAVID B. GIBSON, III, an individual (the Operating General Partner), O. L. PURYEAR AND SONS CONSTRUCTION CO., INC., an Arkansas corporation (OLP), and PROFESSIONAL COUNSELING SERVICE, INC., a Tennessee corporation (PSC, together with the Operating General Partner and OLP, collectively, the General Partner); REAL ESTATE ASSOCIATES LIMITED VII, a California limited partnership (the Withdrawing Limited Partner); and SOUTHLAND PROPERTIES INC., an Arkansas corporation (the Incoming Limited Partner and together with the General Partner and the Withdrawing Limited Partner, each a Party and any two or more, as the context requires, collectively, the Parties), with reference to the following:
A. Oakview Apartments, Limited Partnership (the Partnership) was formed as a limited partnership under the laws of the State of Arkansas and is being governed pursuant to an Amended and Restated Agreement and Certificate of Limited Partnership, dated as of May 7, 1984, as amended by (i) the First Amendment to Amended and Restated Agreement and Certificate of Limited Partnership, dated May 21, 1987, effective as of May 7, 1984 and (ii)the Second Amendment of Amended and Restated Agreement and Certificate of Limited Partnership dated March 10, 1988 (collectively, the Partnership Agreement).
B. The Parties desire to enter into this Amendment to provide for, among other things (i) the withdrawal of the Withdrawing Limited Partner from the Partnership as the Limited Partner of the Partnership, (ii) the admission of the Incoming Limited Partner into the Partnership as the Limited Partner, and (iii) other amendments to the Partnership Agreement.
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 Partnership Agreement is amended as follows:
(a) The Withdrawing Limited Partner withdraws from the Partnership and acknowledges that it has no further interest therein and its entire interest in the Partnership, including, but not limited to, its right to and/or interests in all Cash From Operations, Net Refinancing Cash, Cash from Disposition or Partial Disposition and other Partnership distributions, other Partnership funds and assets, and any reimbursements of expenses, repayments of any loans made by the Withdrawing Limited Partner or any Affiliate to the Partnership (collectively, the Interest), is transferred to the Incoming Limited Partner;
4. The defined term Limited Partner is deleted in its entirety and replaced with the following:
Limited Partner means Southland Properties, Inc., an Arkansas corporation or its successors and assigns.
Southland Properties, Inc.
710 Meador Drive
Dumas, Arkansas 71639
6. As a material inducement to the Withdrawing Limited Partner entering into this Amendment, the General Partner represents and warrants to the Withdrawing Limited Partner that the following are true and correct:
7. 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 :
8. As a material inducement to the General Partner and the Incoming Limited Partner entering into this Amendment, the Withdrawing Limited Partner represents and warrants that the following are true and correct:
(a) The Withdrawing Limited Partner has at all times been and continues to be duly organized, validly existing and in good standing under the laws governing limited partnerships, as adopted in the state of its formation.
9. The representations and warranties set forth above in paragraphs 6, 7, and 8 are true and correct as of the Effective Date and shall survive the withdrawal of the Withdrawing Limited Partner from and the admission of the Incoming Limited Partner into the Partnership as herein contemplated.
10. Notwithstanding the withdrawal of the Withdrawing Limited Partner, the 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 General Partner agrees that as to such matters (i) the General Partner shall conduct itself in a manner which is consistent with the obligations it had as the General Partner 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 General Partner from such pre-existing obligations. Without limiting the generality of the foregoing, the General Partner shall:
(b) deliver to the Withdrawing Limited Partner within forty-five (45) days after the end of the current Fiscal Year such tax information, including, without limitation, a copy of Schedule K-1, as shall be reasonably necessary for inclusion by the Withdrawing Limited Partner in its federal income tax returns and required state income tax and other tax returns; and
If the 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 10, the Withdrawing Limited Partner shall have the right to cause such returns and other information prepared at the sole cost and expense of the 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 Partnerships 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 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.
11. Without limiting the generality of the provisions of paragraph 10,
(v) Intervene in any action brought by any other Partner for judicial review of a final adjustment.
12. In the event of any Partnership level proceeding instituted by the IRS pursuant to Sections 6221 through 6233 of the Code which could affect the Withdrawing Limited Partner, the Tax Matters Partner shall consult with the Withdrawing Limited Partner regarding the nature and content of all action and defense to be taken by the Partnership in response to such proceeding. The Tax Matters Partner also shall consult with the Withdrawing Limited Partner regarding the nature and content of any proceeding pursuant to Sections 6221 through 6233 of the Code instituted by or on behalf of the Partnership (including the decision to institute proceedings, whether administrative or judicial, and whether in response to a previous IRS proceeding against the Partnership or otherwise).
[Signatures on following page(s)]
EXECUTED to be effective as of the Effective Date.
GENERAL PARTNER: | /s/David B. Gibson, III |
| DAVID B. GIBSON, III, an Individual |
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| O. L. PURYEAR AND SONS CONSTRUCTION |
| CO., INC., an Arkansas corporation |
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| By: /s/Glynn A. Puryear |
| Name: Glynn a. Puryear |
| Title: President |
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| PROFESSIONAL COUNSELING SERVICE, |
| INC., a Tennessee corporation |
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| By: /s/David B. Gibson, III |
| Name: David B. Gibson, III |
| Title: President |
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INCOMING LIMITED PARTNER: | SOUTHLAND PROPERTIES, INC., an |
| Arkansas corporation |
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| By: /s/Annette Cowen |
| Name: Annette Cowen |
| Title: President |
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WITHDRAWING LIMITED PARTNER: | REAL ESTATE ASSOCIATES LIMITED VII, |
| a California limited partnership |
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| By: NATIONAL PARTNERSHIP INVESTMENTS, |
| LLC, |
| a California limited liability company, |
| its corporate general partner |
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| By: BETHESDA HOLDINGS I, LLC |
| a Delaware limited liability company, |
| its member |
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| By: AIMCO/BETHESDA HOLDINGS, INC., |
| a Delaware corporation, |
| its member |
|
|
| By: /s/John Bezzant |
| Name: John Bezzant |
| Title: Executive Vice President |
[SIGNATURE PAGE-OAKVIEW APARTMENTS]