ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit 10.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is made as of April 4, 2011 (the "Effective Date"), by and between National Tax Credit Partners, L.P., a California limited partnership ("NTCP"), and National Tax Credit, Inc., a California corporation ("NTC, Inc." and together with NTCP, collectively, "Assignors" and each, an "Assignor"); Rolling Hills AGP, LLC, a New Jersey limited liability company ("RH AGP"), and XX-Xxxxxxxx Investors, LLC, a New Jersey limited liability company ("RH Investors" and together with RH AGP, each, an "Assignee" and, collectively, "Assignees"); and Rolling Hills-Michaels, LLC, a New Jersey limited liability company ("XX-Xxxxxxxx" and together with Assignors and Assignees, each a "Party" and, as the context requires, any two or more, collectively, "Parties"), with reference to the following:
A. Rolling Hills Apartments Limited Partnership (the "Partnership") was formed as a limited partnership under the laws of the Commonwealth of Pennsylvania and is being governed pursuant to an Amended and Restated Certificate and Agreement of Limited Partnership, dated as of September 15, 1989 (the "Partnership Agreement") (any capitalized word or phrase used but not defined herein shall have the meaning set forth in the Partnership Agreement).
B. XX-Xxxxxxxx has entered into a an agreement with Community Realty Management, Inc., a Pennsylvania corporation ("CRMI"), to replace CRMI as the operating general partner of the Partnership.
C. NTC, Inc. is the administrative general partner of the Partnership and NTCP is the limited partner of the Partnership.
D. Assignors have agreed to assign all of their limited partnership (general and limited) interests in the Partnership to Assignees and withdraw from the Partnership, Assignees have agreed to acquire such interests and XX-Xxxxxxxx has consented to such assignment and assumption, all pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual promises and for such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. First Amendment to Partnership Agreement. Upon the full execution of this Agreement, XX-Xxxxxxxx and Assignors shall execute and exchange countersigned counterparts of the First Amendment to Amended and Restated Certificate and Agreement of Limited Partnership of the Partnership in the form attached hereto as Exhibit A (the "First Amendment"), pursuant to which CRMI shall withdraw from the Partnership and XX-Xxxxxxxx shall be admitted into the Partnership as the "Operating General Partner" in the place and stead of CRMI. XX-Xxxxxxxx shall cause CRMI to also execute and exchange countersigned counterparts of the First Amendment.
2.1 Effective as of the "Closing" (as hereinafter defined):
(a)
NTC, Inc.,
assigns to RH AGP and NTCP assigns to RH Investors
100% of
each such Assignor's interest in the Partnership, including, without limitation,
Profits and Losses,
Cash Flow, Sale or Refinancing Transaction Proceeds, all other Partnership
assets,
and all rights to any fees, loan repayments and reimbursements (collectively,
the "Interest"),
and
(b)
RH AGP
assumes and agrees to perform all of the obligations of
NTC,
Inc., under the Partnership Agreement and RH Investors assumes and agrees to
perform all of the obligations of NTCP under the Partnership
Agreement.
2.2 In consideration of Assignors' assignments of the Interest, at the Closing
Assignees shall pay to Assignors an amount (the "Payment") equal to $300,000.00, payable in cash. The Payment shall be treated as a direct acquisition of the Interest. Each Assignor covenants and agrees that such sum shall be received in full satisfaction of all obligations and liabilities due such Assignors in connection with or in any manner arising out of the Partnership, the Apartment Complex or any other assets owned by the Partnership. The Payment shall be made by federal funds wired pursuant to instructions from Assignor.
2.3 If at the time of Closing the Partnership has not yet paid the distributions
of Cash Flow for 2010 due Assignors pursuant to Section 9.2A of the Partnership Agreement, the Payment shall increase to $349,445. If the amount of the Payment paid to Assignors has been increased as provided in the preceding sentence, Assignors shall assign to Assignees, in addition to the Interest, Assignors' rights to the earned by unpaid 2011 Cash Flow distributions otherwise payable to Assignors.
3. Closing.
3.1 The closing of the transactions contemplated by this Agreement (the
"Closing") shall occur no later than June 30, 2011 (the "Closing Date"). In the event the Closing does not occur on or before the Closing Date, this Agreement shall terminate automatically without the necessity of any further action on the part of any of the Parties unless the Parties otherwise agree in writing.
3.2 At the Closing;
(a)
As provided
in Sections 2.2 and 2.3, Assignees shall pay the
Payment; and
(b)
The Parties
shall execute and exchange countersigned
counterparts
of the Second Amendment to Amended and Restated Certificate and Agreement of
Limited Partnership of the Partnership in the form attached hereto as Exhibit
B, subject to such
modifications that the Authority may require provided such modifications do not
have any material
adverse effect on Assignors.
4. Conditions to Closing.
4.1 Each of the Parties acknowledges that the consents of the Authority
and HUD to the transfer of the Interest, as contemplated by this Agreement, are required. RHMichaels and Assignees shall each use commercially reasonable efforts to obtain the same, and Assignors, at no cost, expense or liability to them, will cooperate to provide Authority and HUD with such information and executed documents which Authority and HUD may reasonably
require in order to evaluate such transfer and it shall be a condition precedent to Closing that each of Authority's and HUD's consent is received prior to Closing. XX-Xxxxxxxx and Assignees, on the one hand, and Assignors, on the other, shall each provide the other with copies of any correspondence from Authority or HUD that it receives in connection with Authority's or HUD's review of the proposed transfer of the Interest.
4.2 XX-Xxxxxxxx and each Assignee each further acknowledges that the
consent of the limited partners of NTCP to the transactions contemplated by this Agreement is required and the Parties agree that such consent shall be a condition precedent to Closing. NTCP, at its sole cost and expense, shall use commercially reasonable efforts to obtain the consent of the limited partners of NTCP to the transactions contemplated by this Agreement, including, but not limited to, the admission of Assignees into the Partnership pursuant to all of the applicable terms of the Partnership Agreement.
4.3 It shall be a condition precedent to Closing that all representations,
warranties set forth herein shall be true and correct in all material respects, and all covenants set forth herein shall have been fully complied with in all material respects as of the Closing.
4.4 Notwithstanding anything to the contrary contained or implied in this
Agreement, there are no other conditions to the obligation of the Parties to close the transaction contemplated by this Agreement except as expressly set forth in this Section 4.
4.5 If on or before Closing any condition set forth in Section 4.1, 4.2 or 4.3
has not been satisfied, this Agreement shall terminate and be of no further force or effect.
5. Representations, Warranties and Covenants.
5.1 As a material inducement to Assignees entering into this Agreement,
each Assignor hereby represents and warrants to Assignees the following are true and correct as of the Effective Date, shall be true and correct as of the Closing Date, and shall survive the Closing and the withdrawal of Assignors from the Partnership:
(a)
Assignors
are the owners of the Interest and the Interest is not
subject to any lien, pledge or
encumbrance of any nature whatsoever and Assignees shall acquire the same free of any rights or claims
thereto by any other party claiming by, through or under Assignors.
(b)
The
execution and delivery of this Agreement by Assignors and
the performance of
the transactions contemplated herein have been duly authorized by all
requisite
corporate and partnership proceedings and, assuming the due and proper execution
and
delivery by Assignees and XX Xxxxxxxx, this Assignment is binding upon and
enforceable against
Assignors in accordance with its terms.
5.2 As a material inducement to Assignors entering into this Agreement, each
Assignee hereby represents and warrants to Assignors the following are true and correct as of the Effective Date, shall be true and correct as of the Closing Date, and shall survive the Closing and the withdrawal of Assignors from the Partnership:
(a) The execution and delivery of this Agreement by Assignee and the
performance of the transactions contemplated herein have been duly authorized by all requisite corporate and partnership proceedings.
(b)
Assuming
the due and proper execution and delivery by
Assignors, this Assignment is
binding upon and enforceable against Assignee in accordance with its terms.
(c)
No
proceeding before any federal, state, municipal or other
governmental
department, commission, board or agency is pending against Assignee or, to the
knowledge
of Assignee, threatened against Assignee pursuant to which an unfavorable
judgment
would restrain, prohibit, invalidate, set aside, rescind, prevent or make
unlawful this Agreement
or the transactions contemplated hereunder, nor does Assignee know of any reason
to believe
any such proceeding will be instituted.
(d)
Assignee
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 Agreement.
(e)
Assignee
is aware of the restrictions on transfer or encumbrance
of the
Interest under the Partnership Agreement, as well as the transfer restrictions
imposed by the
Securities Act of 1933, as amended, and applicable state securities laws (the
"Securities
Laws").
Assignee
is able to bear the economic risk of its investment in the Interest, is aware
that it
must hold the Interest for an indefinite period and that the Interest has not
been registered under the
applicable Securities Laws and may not be sold or otherwise transferred unless
permitted
by the terms of the Partnership Agreement and the Interest is registered, or an
exemption
from the registration requirements is available with respect thereto, under the
Securities
Laws. Assignee is acquiring the Interest for its own account and not with a view
to resell,
transfer or otherwise dispose thereof.
Assignee is an Affiliate of XX Xxxxxxxx and, knows, therefore, at least as much about the Partnership as Assignors, Assignee is experienced in financial transactions such as ownership of the Interest and understands the business and operations of the Partnership. Assignee has had an opportunity to ask questions about and seek information about the Partnership and the Apartment Complex, and has not relied upon any express or implied representations or warranties from Assignors with regard to the Interest, the Partnership or the Apartment Complex, except as expressly provided herein.
5.3 As a material inducement to Assignors entering into this Agreement, RH-
Michaels represents and warrants to Assignors that (i) the execution and delivery of this Agreement by XX-Xxxxxxxx and its performance of the transactions contemplated herein have been duly authorized by all requisite corporate proceedings, and (ii) assuming the due and proper execution and delivery by Assignors, this Assignment is binding upon and enforceable against XX-Xxxxxxxx in accordance with its terms. The foregoing representations and warranties are true and correct as of the Effective Date, shall be true and correct as of the Closing Date, and shall survive the Closing and the withdrawal of Assignors from the Partnership.
5.4 Except as expressly provided in this Section 5, no Party has made any
other representation or warranty concerning the Interest, the Partnership or any other matter.
6. Miscellaneous. All notices, demands, requests and other communications
required
pursuant to the provisions of this Agreement ("Notice")
shall be
in writing and shall be
deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or
any other nationally recognized
overnight carrier for next business day delivery, on the
first
business day following deposit of such Notice with such carrier, or (ii) if personally delivered, on the actual date of delivery or (iii) if sent by certified mail, return receipt requested postage prepaid, on the fifth (5th) business day following the date of mailing addressed as follows:
6.1 If to Assignors:
AIMCO
000 Xxxxxxx Xxxxxx
Xxxxx000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
and:
AIMCO
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
Facsimile: 000-000-0000
with a copy to:
Law Offices
of Xxxxx X. Xxxxxx, Inc.
000 X.
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
6.2 If to Assignees or XX-Xxxxxxxx, to the intended recipient at:
Rolling
Hills-Michaels, LLC
0 X. Xxxx
Xxxx, Xxxxx 000
Xxxxxxx, XX
00000
Attention: Xxxx X'Xxxxxxx
with a copy to:
Levine, Staller, Sklar, Chan, Xxxxx & Xxxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Any of the Parties may designate a change of address by Notice in writing to the other Parties. Whenever in this Agreement the giving of Notice by mail or otherwise is required, the giving of such Notice may be waived in writing by the person or persons entitled to receive such Notice.
6.3 If any provision of this Agreement is held to be illegal, invalid, or
unenforceable
under present or future laws, such provision shall be fully severable.
This
Agreement
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision
had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable
provision or by its severance from this Agreement.
6.4 This Agreement may be signed in any number of counterparts, each of
which shall be an original for all purposes, but all of which taken together shall constitute only one agreement. The production of any executed counterpart of this Agreement shall be sufficient for all purposes without producing or accounting for any other counterpart thereof.
6.5 This Agreement shall be binding upon and inure to the benefit of the
heirs, executors, administrators, legal representatives and permitted successors and assigns of the Parties hereto. This Agreement shall be interpreted in accordance with the laws of the state in which the Apartment Complex is located.
6.6 Nothing herein shall be construed to be for the benefit of or enforceable
by any third party including, but not limited to any creditor of either Assignor.
6.7 The Parties shall execute and deliver such further instruments and do
such further acts and things as may be required to carry out the intent and purposes of this Agreement, including, but not limited to, the execution and filing of an amendment to the Original Certificate to reflect the withdrawal of NTC, Inc., from the Partnership as the Administrative General Partner.
6.8 All article and section titles or captions contained in this Agreement are
for convenience only and shall not be deemed part of the text of this Agreement.
6.9 In the event that any court or arbitration proceedings is brought under or
in connection with this Agreement, the prevailing party in such proceeding (whether at trial or on appeal) shall be entitled to recover from the other party all costs, expenses, and reasonable attorneys' fees incident to any such proceeding. The term "prevailing party" as used herein shall mean the party in whose favor the final judgment or award is entered in any such judicial or arbitration proceeding.
6.10 This Agreement constitutes the sole agreement of the Parties with respect to the matters herein, all prior oral or written agreements being merged herein. This Agreement may only be modified by a writing signed by all of the Parties hereto and time is of the essence of this Agreement.
6.11 In interpreting this Agreement it shall be presumed that the Agreement
was jointly drafted and no presumption shall arise against any Party in the event of any ambiguity.
6.12 Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date set forth above.
ASSIGNORS: NATIONAL TAX CREDIT PARTNERS, L.P.,
a California limited partnership
By National Partnership Investments Corp., a California corporation,
General Partner
By /s/Xxxxx XxxXx
Name: Xxxxx CurlI
Title: Vice President
NATIONAL TAX CREDIT, INC., a California corporation
By /s/Xxxxx XxxXx
Name: Xxxxx CurlI
Title: Vice President
ASSIGNEES: ROLLING HILLS AGP, LLC,
a New Jersey limited liability company
By
/s/Xxxx X'Xxxxxxx
Name: Xxxx
X'Xxxxxxx
Title:
President
XX-XXXXXXXX INVESTORS, LLC,
a New Jersey limited liability company
By
/s/Xxxx X'Xxxxxxx
Name: Xxxx
X'Xxxxxxx
Title:
President
XX-XXXXXXXX: ROLLING HILLS-MICHAELS, LLC,
a New Jersey limited liability company
By
/s/Xxxx X'Xxxxxxx
Name: Xxxx
X'Xxxxxxx
Title:
President
