00048493.09
January 26, 1996
PARTNERSHIP INTEREST REDEMPTION AGREEMENT
THIS PARTNERSHIP INTEREST REDEMPTION AGREEMENT is made
this 27th day of February 1996, by and among XXXXXXXXX'X WHARF
MARINA, L.P., a Delaware limited partnership (the "Partnership")
and HWFP, INC., a Maryland corporation (the "Selling Partner"),
and XXXXXXXXX'X WHARF DEVELOPMENT CORPORATION, a Delaware
corporation ("HWDC"), and HISTORIC PRESERVATION PROPERTIES 1990
L.P. TAX CREDIT FUND, a Delaware limited partnership ("HPP")
(HWDC and HPP are, collectively, the "Partnership Parties"), who
signed for the purposes hereinafter set forth.
EXPLANATORY STATEMENT
A. The Partnership was formed pursuant to an
Agreement of Limited Partnership dated as of July 18, 1990 and a
Certificate of Limited Partnership dated as of July 12, 1990 and
filed with the Office of the Secretary of State of the State of
Delaware on July 20, 1990. The affairs of the Partnership are
now governed by the Third Amended and Restated Agreement of
Limited Partnership, dated as of December 31, 1992 (the
"Partnership Agreement").
B. The Partnership owns the fee simple interest in a
parcel of land known as the Marina at Xxxxxxxxx'x Wharf located
in Baltimore, Maryland (the "Marina").
C. The Partners of the Partnership, and their
respective partnership interests are: XXXXXXXXX'X WHARF
DEVELOPMENT CORPORATION, a Delaware corporation ("HWDC"), with a
1% general partnership interest; HISTORIC PRESERVATION PROPERTIES
1990 L.P. TAX CREDIT FUND, a Delaware limited partnership
("HPP"), with a 49% limited partnership interest; and Selling
Partner with a 50% limited partnership interest. HWDC, HPP, and
Selling Partner own all of the general and limited partnership
interests in the Partnership.
D. Simultaneously with the execution of this
Partnership Interest Redemption Agreement (the "Agreement"),
Xxxxxxxxx'x Wharf Baltimore, L.P., a Delaware limited partnership
and an affiliated entity to the Partnership, is paying to the
Selling Partner Five Million Seven Hundred Thousand Dollars
($5,700,000.00) for a full release of a First Deed of Trust and a
Contingent Purchase Price Promissory Note from the Selling
Partner in connection with a piece of property adjacent to the
Marina containing approximately 275 condominium units and a 38-
room inn.
E. The Selling Partner has agreed to sell and the
Partnership has agreed to redeem all of the Selling Partner's
right, title and interest as a limited partner in the Partnership
pursuant to the terms and conditions of this Agreement.
AGREEMENTS
NOW, THEREFORE, in light of the foregoing and for good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Agreement to Sell Partnership Interest.
At the Closing hereunder, the Selling Partner shall
sell, transfer and assign to the Partnership and the Partnership
shall redeem at the price, and upon the terms and conditions
hereinafter set forth (the "Redemption"), the Selling Partner's
entire 50% limited partner interest in the Partnership (the
"Interest").
2. Purchase Price.
The purchase price for the Redemption of the
Interest shall be TWO HUNDRED TWENTY FIVE THOUSAND DOLLARS
($225,000.00) (the "Purchase Price"), which Purchase Price shall
be evidenced by and payable in accordance with the terms and
conditions of a promissory note (the "Note") in the form attached
hereto as Exhibit A.
3. Closing.
3.1. Closing Date. Closing shall take place no
later than February ____, 1996 or such other date as may be
mutually agreed to by the parties (the "Closing Date"), at the
offices of the Partnership or at such other location as is agreed
upon by the parties.
3.2. Actions To Be Taken By the Selling Partner
At Closing. Prior to or at the Closing, the Selling Partner
shall execute and deliver or cause to be delivered to the
Partnership:
3.2.1 an Assignment of Partnership Interest
and Xxxx of Sale (the "Assignment") in the form attached hereto
as Exhibit B; and
3.2.2 the First Amendment to the Partnership
Agreement (the "Amendment") in the form attached hereto as
Exhibit C.
3.2.3 a Release of $1,187,500 Deed of Trust
(the "Release") in the form attached hereto as Exhibit D.
3.2.4 two (2) original Terminations of
Financing Statement dated July 31, 1990 in the form attached
hereto as Exhibit E.
3.3. Actions To be Taken by the Partnership at
Closing. Prior to or at the Closing, the Partnership shall
execute and deliver or cause to be delivered to the Selling
Partner the Required Documents which shall be defined as:
3.3.1 the Note;
3.3.2 a Deed of Trust securing the Note in
the form attached hereto as Exhibit F (the "Deed of Trust"),
which Deed of Trust shall be recorded by the Selling Partner at
its sole expense immediately subsequent to the recordation of a
Second Amendment to Reciprocal Easement Agreement in the form
attached hereto as Exhibit G;
3.3.3 Assignment of Leases and Rents
securing the Note in the form attached hereto as Exhibit F;
3.3.4 UCC-1 Financing Statement naming the
Selling Partner as the secured party; and
3.3.5 the Amendment.
4. Selling Partner's Representations and Warranties.
The Selling Partner represents and warrants as follows each of
which shall be deemed to be re-made at Closing.
4.1. The Selling Partner is the sole legal and
beneficial owner of the Interest. The Selling Partner has not
sold, transferred or encumbered any or all of the Interest. The
Selling Partner has the full and sufficient right at law and in
equity to transfer and assign the entire Interest, and is
transferring and assigning the Interest to the Partnership free
and clear of any and all right, title or interest of any other
person or entity whatsoever; and
4.2. The Selling Partner has no knowledge of any
actions, suits or proceedings which have been instituted or
threatened against or affecting it at law or in equity or before
any Federal, State or municipal governmental department,
commission, board, bureau, agency or instrumentality that will
impose any liability on the Partnership as a result of its
Redemption of the Interest.
4.3. The Selling Partner has duly and validly
authorized, executed and delivered this Agreement, and neither
the execution nor the delivery of this Agreement nor its
performance are restricted by or violate any contractual or other
obligation of the Selling Partner.
4.4. Upon the closing of the transaction
contemplated herein and the execution and delivery, respectively,
by the Selling Partner and by the Partnership of the documents
listed in subsections 3.2 and 3.3 hereof, the Selling Partner
acknowledges that it will have no claims against the Partnership
with respect to the Selling Partner having been a partner of the
Partnership or with respect to the Interest.
5. Partnership's Representations and Warranties.
5.1 The Partnership represents and warrants to
the Selling Partner that it is authorized to execute and deliver
this Agreement, and to perform its obligations hereunder, and
that neither the execution nor the delivery of this Agreement nor
its performance hereunder are restricted by or violate any
contractual or other obligation of the Partnership.
5.2 Upon the closing of the transaction
contemplated herein and the execution and delivery, respectively,
by the Selling Partner and the Partnership, of the documents
listed in subsections 3.2 and 3.3 hereof, the Partnership
acknowledges that it will have no claims against the Selling
Partner with respect to the Selling Partner having been a Partner
of the Partnership or with respect to the Interest.
6. Releases.
The Partnership and the Partnership Parties, on
the one hand, and the Selling Partner on the other hand, for
themselves and for, as applicable, their general partners,
limited partners, officers, directors, employees, agents,
principals, stockholders, and for all of their respective
successors and assigns, hereby release and forever discharge each
other and, as applicable, all of their general partners, limited
partners, officers, directors, employees, agents, principals,
stockholders, and for all of their respective successors and
assigns, from all sums of money, accounts, actions, suits,
proceedings, judgments, liabilities, and causes of action,
demands of claims whatsoever, known or unknown, past, present, or
future, that either party had, has, or will have against the
other, for, by reason of, or with respect to, any act, cause,
matter, or thing that has occurred or existed from the beginning
of time to the date of this Agreement. Notwithstanding the
foregoing or any other provision of this Agreement to the
contrary, the foregoing release does not apply to any claims
arising out of or relating to (i) the rights and liabilities of
the Partnership, the Selling Partner, and the Partnership Parties
under this Agreement or any Exhibits thereto, and (ii) the
obligations of the Partnership and/or Partnership Partners under
the Note, Deed of Trust, and Assignment of Leases and Rents.
7. Indemnification.
7.1 By Selling Partner. The Selling Partner
shall defend, indemnify and hold harmless the Partnership and the
Partnership Parties against and from any and all liability, claim
of liability or expense including reasonable attorneys fees
arising out of any failure of the Selling Partner's
representations contained in the provisions of Section 4 to be
true, accurate and complete in all material respects, including,
without limitation, the payment of reasonable attorneys fees.
7.2 By the Partnership. The Partnership shall
defend, indemnify and hold harmless the Selling Partner against
and from any and all liability, claim of liability or expense
including reasonable attorneys fees arising out of any failure of
the Partnership's representations contained in the provisions of
Section 5 to be true, accurate and complete in all material
respects, including, without limitation, the payment of
reasonable attorneys fees.
8. Further Assurances. The Selling Partner agrees to
execute, acknowledge, and deliver any such further assignments,
conveyances, certificates and other assurances, documents, and
instruments as may reasonably be requested by the Partnership for
the purpose of effecting and consummating the transactions
contemplated hereby.
9. Default and Remedies. In the event of a default
hereunder by the Selling Partner or the Partnership, the non-
defaulting party may pursue any remedy available at law or in
equity against such defaulting party, including a suit for
specific performance.
10. Real Estate Brokers. The parties hereto represent
and warrant to each other that no brokerage or real estate agent
was employed or utilized by any Selling Partner or Partnership
with regard to the sale contemplated herein. The Selling Partner
agrees to indemnify and hold harmless the Partnership from any
claim for compensation made by any broker or agent with respect
to this purchase and sale because of the actions of the Selling
Partner herein. The Partnership agrees to indemnify and hold
harmless the Selling Partner from any claim for compensation made
by any broker or agent with respect to this purchase and sale
because of the actions of the Partnership herein.
11. Notice. Any notice to be given under this
Agreement by Partnership to Selling Partner shall be deemed to be
given if and when hand delivered with receipted delivery or
delivered by the United States Registered or Certified Mail,
postage prepaid, return receipt requested, addressed to Selling
Partner at:
c/o X.X. Xxxxxx Companies
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxx
With a copy to:
Xxxxxx X. Xxxxxx, Esquire
Xxxxxxxxx Xxxxxxx & Xxxxx, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
and any notice to be given by Selling Partner to the Partnership
shall be deemed to be given if and when hand-delivered or
delivered by the United States Registered or Certified Mail,
postage prepaid, return receipt requested, addressed to the
Partnership at:
c/o Claremont Management Corporation
Batterymarch Park II
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxxxxx Xxxxx, Esquire
Neuberger, Quinn, Gielen, Rubin & Gibber,P.A.
00xx Xxxxx
Xxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
12. Miscellaneous.
12.1. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their
respective heirs, personal representatives, successors and
assigns. None of the parties shall have any right to assign this
Agreement.
12.2. The recitals are an integral part of this
Agreement.
12.3. This Agreement shall be construed in
accordance with the laws of the State of Maryland.
12.4. This Agreement may be executed
simultaneously in two or more counterparts each of which shall be
deemed an original, and all of which when taken together shall
constitute one and the same instrument binding on the parties
hereto. The signature of any party to any counterpart shall be
deemed a signature to and may be appended to any other
counterpart.
12.5. Time shall be of the essence with respect
to this Agreement.
12.6. This Agreement constitutes the entire
understanding among the parties hereto as to the subject matter
hereof, and supersedes all prior written or oral negotiations,
representations, guaranties, warranties, promises, statements or
agreements among the parties hereto as to the Interest.
IN WITNESS WHEREOF, the undersigned have caused these
presents to be executed under seal on the day and year first
above written.
WITNESS: SELLING PARTNER:
HWFP, INC.
______________________________By:____________________________(SEAL)
WITNESS: THE PARTNERSHIP:
XXXXXXXXX'X WHARF XXXXXX, L.P.,
By: Xxxxxxxxx'x Wharf Development
Corporation, its general partner
_____________________________ By:________________________________
Xxxxxxxx X. Xxxxxxxx,
president
THE PARTNERSHIP PARTIES:
XXXXXXXXX'X WHARF DEVELOPMENT CORPORATION
______________________________ By:____________________________________
Xxxxxxxx X. Xxxxxxxx,
president
HISTORIC PRESERVATION PROPERTIES 1990
L.P. TAX CREDIT FUND
By: Boston Historic II Partners Limited
Limited Partnership,its general
partner
By: BHP II Advisors Limited
Partnership, its general partner
______________________________ By:_____________________________
Xxxxxxxx X. Xxxxxxxx,
general partner
By: Portfolio Advisory
Services II, Inc.,
its general partner
______________________________ By:_____________________________
Xxxxxxxx X. Xxxxxxxx,
president
EXHIBITS TO
PARTNERSHIP INTEREST REDEMPTION AGREEMENT
A. Promissory Note
B. Assignment of Partnership Interest and Xxxx of Sale
C. First Amendment to Partnership Agreement
D. Release of $1,187,500 Deed of Trust
E. Termination of Financing Statement dated July
31, 1990
F. Deed of Trust
G. Second Amendment to Reciprocal Easement Agreement
H. Assignment of Leases and Rents
EXHIBIT A
PROMISSORY NOTE
EXHIBIT B
ASSIGNMENT OF PARTNERSHIP INTEREST
AND XXXX OF SALE
(Attached)
EXHIBIT B
ASSIGNMENT OF PARTNERSHIP INTEREST
AND XXXX OF SALE
FOR VALUE RECEIVED, the receipt and sufficiency of
which are hereby acknowledged, HWFP, Inc., a Maryland corporation
("Selling Partner"), hereby sells, assigns, sets over, transfers,
and permits to be redeemed, without recourse or warranty of any
nature whatsoever, express or implied, except as specifically set
forth in the Partnership Interest Redemption Agreement by and
among the parties hereto and of even date herewith, unto
Xxxxxxxxx'x Wharf Marina, L.P., a Delaware limited partnership
(the "Partnership"), its successors and assigns, all of the
Selling Partner's right, title and interest in the Partnership
(the "Interest"), currently standing in the Selling Partner's
name on the books of the Partnership, including, without
limitation, the right to receive the share of profits or other
compensation or losses to which the Selling Partner would
otherwise be entitled, and the right to the return of the
contribution, if any, of the Selling Partner to the capital of
the Partnership. Effective upon the execution and delivery
hereof, the Partnership shall have the right to exercise all of
the rights and privileges which the Selling Partner, as limited
partner, had in the Partnership.
The Selling Partner agrees that it will execute and
deliver such further instruments of sale, conveyance and transfer
and take such further actions as the Partnership may reasonably
request in order to effectuate the conveyance intended herein.
This Assignment of Partnership Interest and Xxxx of
Sale shall inure to the benefit of the Partnership and its
successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed this
Assignment of Partnership Interest and Xxxx of Sale as of the
27th day of February, 1996.
WITNESS: HWFP, Inc.
______________________________By:_______________________(SEAL)
Acknowledged and Accepted as
of this ____ day of _____________
THE PARTNERSHIP:
XXXXXXXXX'X WHARF XXXXXX, L.P.,
By: Xxxxxxxxx'x Wharf Development
Corporation
By:__________________________________
Xxxxxxxx X. Xxxxxxxx,
President
THE PARTNERSHIP PARTIES:
XXXXXXXXX'X WHARF DEVELOPMENT CORPORATION
By:______________________________________
Xxxxxxxx X. Xxxxxxxx,
President
HISTORIC PRESERVATION PROPERTIES 1990
L.P. TAX CREDIT FUND
By: Boston Historic II Partners
Limited Partnership, its sole
general partner
By: BHP II Advisors Limited
Partnership, its sole general
partner
By:___________________________
Xxxxxxxx X. Xxxxxxxx,
general partner
By: Portfolio Advisory
Services II, Inc.
By:_______________________
Xxxxxxxx X. Xxxxxxxx,
President
EXHIBIT C
FIRST AMENDMENT TO THE THIRD AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
(Attached)
EXHIBIT D
RELEASE OF $1,187,500 DEED OF TRUST
RELEASE
THIS RELEASE made as of the 31st day of December, 1992,
by and among HWFP., Inc., a Maryland Corporation ("Lender"),
XXXXXX X. XXXXXX, JR., a trustee and XXXXXXXXX'X WHARF MARINA,
L.P., a Delaware limited partnership ("Borrower").
WITNESSETH, THAT WHEREAS, by that certain Purchase Money
Deed of Trust (the "Deed of Trust") dated as of July 31, 1990,
and recorded among the Land Records of Baltimore City, Maryland,
in Liber 2563, folio 193, Borrower conveyed to Xxxxxxx X. Xxxxx
and Xxxxxx X. Xxxxxx, Jr., as trustees (collectively and
singularly the "Trustees"), all of that real property in the said
City which is described therein (the "Property"), as security for
the debt referred to therein and owed to Lender, and for
Borrower's performance of Borrower's other obligations
thereunder; and
WHEREAS, by that certain Deed of Appointment of
Substitute Trustee dated September 25, 1991, and recorded among
the land Records of Baltimore City, Maryland, in Liber 3010 folio
51, the said Xxxxxxx X. Xxxxx was removed from his position as a
trustee under the Deed of Trust and Xxxxxx X. Xxxx was appointed
in his place as a trustee under the Deed of Trust; and
WHEREAS, by that certain Deed of Appointment of
Substitute Trustee dated August 31, 1992, and recorded among the
land Records of Baltimore City, Maryland, in Liber 3388 folio
273, the said Xxxxxx X. Xxxx was removed from his position as a
trustee under the Deed of Trust, and S. Xxxxxxx Xxxxxx, III, was
appointed in his place as a trustee under the Deed of Trust; and
WHEREAS, the said S. Xxxxxxx Xxxxxx, III, resigned as a
trustee under the Deed of Trust and has not been replaced; and
WHEREAS, the Deed of Trust authorizes any one Trustee to
act on behalf of the Trustees in all matters, and that such
action when so taken shall be considered for all purposes as if
taken by the Trustees; and
WHEREAS, such debt has been fully satisfied and,
consequently, Borrower has asked that Lender and the Trustees
release from the lien, operation and effect of the Deed of Trust
the Property, and Lender is willing to do so and has authorized
the Trustees to do so.
NOW, THEREFORE, IN CONSIDERATION OF Borrower's payment to
Lender of Ten and 00/100 Dollars ($10.00) and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged by each party hereto, Lender and the Trustees
hereby release, quit, remise and abandon unto Borrower, from the
lien, operation and effect of the Deed of Trust, all of the
Property which is now subject thereto, so that the Property is
now and hereafter shall be free and clear of the lien, operation
and effect of the Deed of Trust as if it had never been executed
and as if the Property had never been subject thereto.
LENDER AND THE TRUSTEES hereby agree to give such further
assurance of the foregoing as may be requisite.
IN WITNESS WHEREOF, Lender and the Trustees have executed
and ensealed this Release or caused it to be executed and
ensealed on their behalves by their duly authorized
representatives, as of the day and year first above written.
WITNESS or ATTEST: LENDER:
HWFP, INC.
______________________________By:__________________________
Xxxxxx X. Xxxxxx, Jr.
Vice President
TRUSTEES:
______________________________________________________________
XXXXXX X. XXXXXX, JR., Trustee
STATE OF _____________)
) to wit:
COUNTY OF ____________)
I HEREBY CERTIFY, that on this ____ day of February,
1996 before me, a Notary Public in and for the State and County
aforesaid, personally appeared XXXXXX X. XXXXXX, JR., known to me
or satisfactorily proven to be the person whose name is
subscribed to the within instrument, who acknowledged that he is
the Vice President of HWFP, INC., a Maryland corporation, that he
has been duly authorized to execute, and has executed, such
instrument on his behalf for the purpose therein set forth, and
that the same is its act and deed.
IN WITNESS WHEREOF, I have set my hand and Notarial
Seal, the day and year first above written.
________________________________
Notary Public
My Commission Expires:
______________________
STATE OF _____________)
) to wit:
COUNTY OF )
I HEREBY CERTIFY, that on this ____ day of February,
1996 before me, a Notary Public in and for the State and County
aforesaid, personally appeared XXXXXX X. XXXXXX, JR., known to me
or satisfactorily proven to be the person whose name is
subscribed to the within instrument, who acknowledged that he is
the person named as Trustee in the deed of trust referred to
therein, that he has been duly authorized to execute, and has
executed, such instrument on his behalf for the purpose therein
set forth, and that the same is its act and deed.
IN WITNESS WHEREOF, I have set my hand and Notarial
Seal, the day and year first above written.
________________________________
Notary Public
My Commission Expires:
______________________
THIS IS TO CERTIFY THAT THIS INSTRUMENT WAS PREPARED BY
OR UNDER THE SUPERVISION OF THE UNDERSIGNED, AN ATTORNEY DULY
ADMITTED TO PRACTICE BEFORE THE COURT OF APPEALS OF MARYLAND.
________________________________
Xxxxxxx Xxxxx
AFTER RECORDING,
PLEASE RETURN TO:
Xxxxxxx Xxxxx, Esquire
Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.
27th Floor, Commerce Place
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
EXHIBIT E
TERMINATION OF FINANCING STATEMENT
DATED JULY 31, 1990
TO BE RECORDED IN THE FINANCING STATEMENT RECORDS OF
THE MARYLAND STATE DEPARTMENT OF ASSESSMENTS AND TAXATION
TERMINATION STATEMENT
This Termination Statement is presented to a filing officer
pursuant to the Maryland Uniform Commercial Code.
1. NAME AND ADDRESS OF DEBTOR:
XXXXXXXXX'X WHARF XXXXXX, L.P.
c/o Claremont Management Corporation
Batterymarch Park II
Xxxxxx, Xxxxxxxxxxxxx 00000
2. NAME AND ADDRESS OF SECURED PARTY:
HWFP, INC.
c/o X. X. Xxxxxx Companies
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
3. This Statement refers to the original Financing
Statement No. 102397805 filed August 27, 1990, and recorded at
Film 3265, Folio 0884.
4. The Secured Party of record no longer claims a
security interest under the Financing Statement bearing the above
file number.
Secured Party:
HWFP, INC.
By:_________________________________
Title:______________________________
Return to: Xxxxxxx Xxxxx, Esquire
Neuberger, Quinn, Gielen, Rubin &
Gibber, P.A.
27th Floor, Commerce Place
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
EXHIBIT F
DEED OF TRUST
EXHIBIT G
SECOND AMENDMENT TO RECIPROCAL EASEMENT AGREEMENT
EXHIBIT H
ASSIGNMENT OF LEASES AND RENTS
