Exhibit 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the “Agreement”) is made as of May 6, 2013 (the “Effective Date”), by and between Real Estates Associates IV, a California partnership (“Assignor” or “Withdrawing Limited Partner”), Joel I. Ferguson, an individual (“Ferguson”), and AMG-MGT, LLC, a Michigan limited liability company, formerly Asset Management Group (“AMG”) (Ferguson and AMG each an “Assignee” and collectively, “Assignees”); and AMG and Bluewater Corporation, a Michigan corporation (collectively, the “General Partners” and together with Assignor and Assignees, each a “Party“ and, as the context requires, any two or more, collectively, “Parties”), with reference to the following:
RECITALS
F. The noteholders have been notified that the General Partners are prepared to effectuate the provisions of said Section 7.1.2 of the Partnership Agreement and the noteholders have been offered a portion of the limited partner interest to be transferred by the Withdrawing Limited Partner; and
G. AMG resigned as trustee for the previous withdrawing investor limited partners effective as of November 23, 2011, and the General Partners are not aware that any successor trustee has been appointed; and
I. The names and address set forth in Exhibit A reflect the assignments described in paragraph H above; and
J. Assignor has agreed to assign all of its limited partnership interest in the Partnership to Assignees and withdraw from the Partnership, in return for cancellation of the Promissory Notes; Assignees have agreed to acquire such interest and the General Partners have 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. The foregoing Recitals are hereby fully incorporated into and made a part of this agreement.
2. Assignment and Assumption. Effective as of the “Closing” (as hereinafter defined):
4.1 Each of the Parties acknowledges that the consents of the Governmental Agencies to the transfer of the Interest, as contemplated by this Agreement, are required. The General Partners and Assignee shall each use commercially reasonable efforts to obtain the same, and Assignor, at no cost, expense or liability to them, will cooperate to provide the Governmental Agencies with such information and executed documents which the Governmental Agencies may reasonably require in order to evaluate such transfer and it shall be a condition precedent to Closing that each of the Governmental Agencies’ consent is received prior to Closing. The General Partners and Assignees, on the one hand, and Assignor, on the other, shall each provide the other with copies of any correspondence from Lender, HUD and the Authority that it receives in connection with the Governmental Agencies’ review of the proposed transfer of the Interest.
4.2 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.
4.3 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.
4.4 If on or before Closing any condition set forth in Sections 4.1 or 4.2 has not been satisfied, this Agreement shall terminate and be of no further force or effect.
5. Representations, Warranties and Covenants.
5.2 As a material inducement to Assignor entering into this Agreement, each Assignee hereby represents and warrants to Assignor 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 Assignor from the Partnership:
5.3 As a material inducement to Assignor entering into this Agreement:
(a) The General Partners represent and warrant to Assignor that (i) the execution and delivery of this Agreement by the General Partners and their performance of the transactions contemplated herein have been duly authorized by all requisite corporate or limited liability company proceedings, and (ii) assuming the due and proper execution and delivery by Assignor, this Agreement is binding upon and enforceable against the General Partners 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 Assignor from the Partnership; and
Aimco
80 International Drive, Suite 130
Greenville SC 29615
Attention: Eric Mathis
with a copy to:
Law Offices of Peter H. Alpert, Inc.
601 S. Figueroa Street, Suite 2330
Los Angeles, CA 90017
Attention: Peter H. Alpert
Facsimile: 213-687-1511
AMG-MGT, LLC
4275 Five Oaks Drive
Lansing, MI 48911
Facsimile: 517-887-4206
and
Joel I. Ferguson
1223 Turner Street
Suite 400
Lansing, MI 48906
Facsimile: 517-371-2537
Loomis, Ewert, Parsley, Davis & Gotting, P.C.
124 W. Allegan Street, Suite 700
Lansing, MI 48933
Attention: Richard W. Pennings, Esq.
Facsimile: 517-482-4313
6.3 If to the General Partner:
AMG-MGT, LLC
4275 Five Oaks Drive
Lansing, MI 48911
Attention: Gleason Amboy
Facsimile: 517-887-4206
and
Bluewater Corporation
4275 Five Oaks Drive
Lansing, MI 48911
Attention: Gleason Amboy
Facsimile: 517-887-4206
with a copy to:
Loomis, Ewert, Parsley, Davis & Gotting, P.C.
124 W. Allegan Street, Suite 700
Lansing, MI 48933
Attention: Richard W. Pennings, Esq.
Facsimile: 517.482.4313
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.
6.6 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 Project is located.
[Signatures on following 2 pages]
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date set forth above.
ASSIGNOR: REAL ESTATE ASSOCIATES IV, a California partnership
By: National Partnership Investments, LLC, a California limited liability company
Its: Managing Partner
By: Bethesda Holdings I, LLC, a Delaware limited liability company
Its: Member
By: Bethesda Holdings II, LLC, a Delaware limited liability company
Its: Member
By:/s/Brian Flaherty
Name: Brian Flaherty
Title: Senior Managing Director
ASSIGNEES: AMG-MGT, LLC., a Michigan limited liability company
By: /s/David Gerchak
David Gerchak
Its: Manager
/s/Joel I. Ferguson
JOEL I. FERGUSON
GENERAL PARTNERS: AMG-MGT, LLC., a Michigan limited liability company
By: /s/David Gerchak
David Gerchak
Its: Manager
BLUEWATER CORPORATION, a Michigan corporation
By: /s/Joel I. Ferguson
Joel I. Ferguson
Its: President