05-01-2002 1st Amend Buffalo Ridge II LLLPR
Y
FIRST AMENDMENT
TO
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
BUFFALO RIDGE II LLLP,
A COLORADO LIMITED LIABILITY LIMITED PARTNERSHIP
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF BUFFALO RIDGE II LLLP, A COLORADO LIMITED
LIABILITY LIMITED PARTNERSHIP (this "Amendment ") is made effective as of September
10, 2002 (the "Effective Date "), by and among CORUM BUFFALO RIDGE LLC, a Colorado
limited liability company, (the "Corum GP ") and WINTERGREEN HOMES — BUFFALO
RIDGE LLC, a Colorado limited liability company (the "Wintergreen GP ") (the Corum GP and
the Wintergreen GP are collectively referred to herein as the "General Partners "),
SUNAMERICA HOUSING FUND 1048, A NEVADA LIMITED PARTNERSHIP (the
"Investment Partnership "), as a Limited Partner, TRAER CREEK -RP LLC, a Colorado limited
liability company ( "SLP I ") as a special limited partner, and THE HOUSING AUTHORITY OF
THE TOWN OF AVON, COLORADO ( "SLP II ") as a special limited partner (SLP I and SLP II
are collectively referred to herein as the "Special Limited Partners ").
RECITALS
A. The General Partners, Investment Partnership and Special Limited Partners are
currently all of the partners of Buffalo Ridge II LLLP, a Colorado limited liability limited
partnership (the "Partnership ").
B. The Partnership is governed by that certain Amended and Restated Agreement of
Limited Partnership made as of May 1, 2002 (the "Partnership Agreement "). Capitalized terms
used herein, which are not otherwise defined, shall have the same means as are given to such
terms in the Partnership Agreement.
C. The parties desire to amend the Partnership Agreement as provided herein.
AGREEMENT
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 amend and modify the Partnership Agreement as
follows:
1. Representations and Warranties. Section 4.1 of Article IV of the Partnership
Agreement is hereby amended as follows:
(a) Section 4.1(s) is hereby amended by deleting the first sentence thereof and
substituting the following therefore:
3496\955\7263082
J
The only tenant eligibility requirements or rent restrictions with
which the Apartment Complex and the Partnership must comply,
including restrictions necessary to receive the full amount of the
Projected Credits, are that not more than 132 of the 176 units are
subject to the rent restrictions and occupancy limitations that apply
to residential units that satisfy the 40 -60 Set -Aside Test for the
term of the Extended Use Agreement and 40 of the 132 units are
further restricted to 50% area median gross income for the term of
the Extended Use Agreement.
(b) Section 4.1(t) is hereby deleted in its entirety and the following substituted
therefor:
The term of the Extended Use Agreement will not exceed 50 years
and under the Extended Use Agreement the Partnership shall have
the right to cause a termination of the Extended Use Agreement
after the end of the Compliance Period, but prior to the end of such
50 year term, in accordance with Code Section 42(h)(6)(E)(i)(I).
2. Execution and Recording of CDBG Covenant. The parties to this Amendment
hereby authorize and direct the General Partners to execute and record against the Land that
certain Colorado Division of Housing beneficiary and Rent Use Covenant, a copy of which is
attached hereto as Exhibit A.
3. No Other Modifications. Except as amended hereby, the terms and provisions of
the Partnership Agreement shall and hereby do remain unchanged and in full force and effect and
shall be and hereby are otherwise ratified and affirmed in their entirety.
4. Legal Fees. The General Partner shall pay all attorneys' fees, costs and expenses
of the Partnership relating to the preparation of this Amendment. Payment shall be made to
Brownstein Hyatt & Farber, P.C. within ten (10) days of receipt of an itemized statement with
respect to said fees, costs and expenses.
5. Counterparts. This Amendment may be executed in any number of counterparts,
and each such counterpart shall be deemed for all purposes to be an original, and all such
counterparts shall together constitute one and the same document.
3496 \9551726308.2
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
SIGNATURE PAGE TO
FIRST AMENDMENT TO
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
BUFFALO RIDGE II LLLP,
A COLORADO LIMITED LIABILITY LIMITED PARTNERSHIP
IN WITNESS WHEREOF, the parties hereto have affixed their signatures to this First
Amendment to Amended and Restated Agreement of Limited Partnership of Buffalo Ridge II
LLLP, a Colorado limited liability limited partnership, effective as of the date first written above.
GENERAL PARTNERS:
CORUM BUFFALO RIDGE LLC, a Colorado
limited liability company
By: ad"C�V--iij
James itzpat Managing Member
WINTERGREEN HOMES — BUFFALO RIDGE
LLC, a Colorado limited liability company
3496\955\726308,2
LIMITED PARTNERS:
SUNAMERICA HOUSING FUND 1048, A
NEVADA LIMITED PARTNERSHIP
By: SUNAMERICA INC., a Delaware
corporation, General Partner
By: _
Michael L. Fowler, Vice President
TRAER CREEK -RP LLC, a Colorado limited
liability company
BY: TRAER CREEK LLC, a Colorado limited
liability company, Manager
LN
Name:
Title:
THE HOUSING AUTHORITY OF THE TOWN
OF AVON, COLORADO
go
Name:
Title:
3446\955 \726308.1 4
LIMITED PARTNERS:
SUNAMERICA HOUSING FUND 1048, A
NEVADA LIMITED PARTNERSHIP
By: AIG SUNAMERICA INC., a Delaware
corporation, General Partner
Michael L. Fowler, Vice President
TRAER CREEK -RP LLC, a Colorado limited
liability company
BY: TRAER CREEK LLC, a Colorado limited
liability company, Manager
By:
am e:
Title: <�a k 4
THE HOUSING AUTHORITY OF THE TOWN
OF AVON, COLORADO
3496 \955 \126308.2 4
CONSENT OF GUARANTORS
THE UNDERSIGNED, being all of the Guarantors under that certain Guaranty
Agreement dated as of May 1, 2002, hereby consent to the foregoing First Amendment to
Amended and Restated Agreement of Limited Partnership of Limited Partnership of Buffalo
Ridge II LLLP, a Colorado limited liability limited partnership (the "First Amendment "), and
acknowledge that all references in the Guaranty Agreement to the "Partnership Agreement" shall
refer to that certain Second Amended and Restated Agreement of Limited Partnership of Buffalo
Ridge II LLLP, a Colorado limited liability limited partnership, made as of May 1, 2002, as
amended by the First Amendment and also acknowledge that all references in the Guaranty
Agreement to "Indebtedness" shall be deemed references to the indebtedness as amended hereby.
EFFECTIVE as of September 10, 2002.
GUARANTORS:
ames G. zpatrick
V. Michael Komppa
tinnur ntemstem
CORUM REAL ESTATE GROUP, INC, a
Colorado corporation
F�
3496 \955 \726308.2
WINTERGREEN HOMES LIMITED LIABILITY
COMPANY, a Colorado limited liability company
349619551726308.2
EXHIBIT A
(Colorado Division of Housing Beneficiary and Rent Use Covenant)
3496\955\726308.2
WHEN RECORDED RETURN TO:
COLORADO DIVISION OF HOUSING
ATTENTION: ELIZABETH SMITH
1313 SHERMAN STREET, ROOM 518
DENVER, Co 80203
COLORADO DIVISION OF HOUSING
BENEFICIARY AND RENT USE COVENANT
THIS COLORADO DIVISION OF HOUSING BENEFICIARY AND RENT USE
COVENANT ( "Covenant ") is made this _,�' day of 2002, by the
BUFFALO RIDGE II LLLP, a Colorado limited liability limited partnership, whose address is
5251 DTC Parkway, Suite 200, Greenwood Village, Colorado 80111 ( "Owner "), fee simple
owner of certain property further described herein.
WHEREAS, the Owner is or will be the recipient of Four Hundred Ninety -Five Thousand
Dollars ($495,000.00) (the "Funds ") from the Colorado Division of Housing ( "CDOH ") to be
used for the construction of the following described real property in the Town of Avon, County
of Eagle, State of Colorado (the "Property "):
(See Attachment A — Legal Description of Property)
WHEREAS, as a condition to the receipt of the Funds, Owner has agreed to record a
covenant to run with the Property to insure that certain rental and occupancy limitations
associated with the program are met;
NOW, THEREFORE, the following is established as a covenant running with the
Property:
Restriction. For the term of the Restriction, the Property shall be used primarily to
provide housing for Eligible Beneficiaries at Affordable Rents, as defined herein.
2. Eligible Beneficiaries. The Owner, its successors, assignees, heirs, grantees or lessees
shall ensure preference shall be given to prospective leasing households ( "Eligible
Beneficiary") that have gross incomes that do not exceed the Area Median Income
( "AMP') limits as follows: Forty (40), studio apartments available to households at fifty
percent (50 %) AMI; Forty (40), one - bedroom units available to households at sixty
percent (60 %) AMI; and Fifty -Two (52), two bedroom apartments available to
households at sixty percent (60 %) AMI. If, after making extensive efforts to fill these
units at the above levels, there are vacancies, the units may be filled by a household at or
below 80% AMI.
3. Affordable Rents. To ensure the housing is affordable to low income households for the
term of this Covenant, the rents ( "Affordable Rents ") for the DOH assisted units must
have rents that are not greater than the HUD AMI rents, less the HUD approved utility
540013.2
allowances. In the event other restrictions placed on the rents of these units are released,
these restrictions will continue for the term of this Covenant.
4. Long Term Affordability. The Owner, its successors, assignees, heirs, grantees, or
lessees shall ensure that the Property remains affordable, without regard to the term of
any mortgage or transfer of ownership, for a period of not less than fifty (50) years
following the recording date of this Covenant. This affordability restriction may
terminate upon foreclosure or transfer in lieu of foreclosure, unless the owner of record,
before the foreclosure, or anyone with business or family ties to the owner, obtains an
ownership interest in the Property through the foreclosure.
5. Change in Use. If the Property is not used for housing the Eligible Beneficiaries, at the
Affordable Rents for fifty (50) years following the recording of this Covenant, the
Owner, its successors and assignees, heirs, grantees, or lessees shall be required to repay
the State the Funds attributed to the Property, unless the State authorizes the transfer of
repaid Funds to one or more public housing entities, or private nonprofit corporations. If,
prior to the end of the 50 year period, the Owner wishes to change the use of the
Property, the Owner, through the Town of Avon, must adhere to the requirements
detailed in CDBG regulations 24 CFR Part 570.4890).
6, Enforcement. The Town of Avon, Colorado Division of Housing and/or the Department
of Housing and Urban Development, or appropriate representatives thereof may enforce
this Covenant.
7. Release upon Satisfaction. Upon satisfaction of the above covenants, DOH will release
the Owner, its successors, assignees, heirs, grantees, or lessees of the Property from the
terms and provisions of this Covenant.
540013.2
BUFFALO RIDGE II LLLP,
a Colorado limited liability limited partnership
By: Corum Buffalo Ridge LLC,
a Colorado limited liability company,
General Partner
James GI zpatri , Managing Member
By: Wintergreen Homes Buffalo Ridge LLC,
a Colorado limited liability company,
General Partner
i
STATE OF COLORADO )
C. .."k ) ss.
COUNTY'OF
The foregoing instrument was acknowledged before me this fh day of -
2002, by James G. Fitzpatrick, III, as Managing Member of Corum Buffalo Ridge LLC, a
Colorado limited liability company, General Partner of Buffalo Ridge II LLLP, a Colorado
limited liability limited partnership.
WITNESS my hand and official seal.
My si0 res: •-.� 5, Zoc��p
��\•�0 TA •.•�'9
�q % n
.
o
o
Notary Public
°F COt-OP
STATE OF COLORADO )
-A ) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this &'tKday of ?,�^
2002, by Jeffery M. Spanel, as Manager of Wintergreen Homes - Buffalo Ridge LLC, a Colorado
limited Liability company, General Partner of Buffalo Ridge II LLLP, a Colorado limited liability
limited partnership.
540013.2
WITNESS my hand and official seal.
My co
aOTAR 9C
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�'•'•• u R Llo••oo
9�F °F cot -oPv
I'S , 1001:`
,cl-
Notary Public
3
F,
Attachment A
Legal Description of Property
The following real property situate, lying and being in the Town of Avon, County of Eagle, State
of Colorado:
?40013.2
Lots 1, 3 and 5,
THE VILLAGE (AT AVON) FILING 2,
according to the Final Plat of The Village (at Avon) Filing 2 recorded May 28,
2002 at Reception No. 79683