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8-K - FORM 8-K - REAL ESTATE ASSOCIATES LTD III | real3vista_8k.htm |
Exhibit 10.3
ASSIGNMENT AND ASSUMPTION OF LIMITED PARTNER INTEREST
AND
SECOND AMENDMENT TO THE AGREEMENT AND AMENDED CERTIFICATE OF LIMITED PARTNERSHIP
(VISTA HOUSING ASSOCIATES)
This Assignment and Assumption of Limited Partner Interests and Second Amendment to the Agreement and Amended Certificate of Limited Partnership (this Amendment) of VISTA HOUSING ASSOCIATES, a limited partnership organized under the laws of the State of California (the Partnership), is dated and effective as of December 14, 2012 (the Effective Date), by and among REAL ESTATE ASSOCIATES LIMITED III, a California limited partnership (the Assignor), ALVAREZ BRACERO LP, LLC, a Delaware limited liability company (the Assignee), BUCARE DEVELOPMENT CORPORATION, a Puerto Rico corporation (the General Partner).
W I T N E S S E T H:
WHEREAS, the Assignor acquired a limited partner interest in the Partnership (the LP Interest) pursuant to the Partnerships Agreement and Amended Certificate of Limited Partnership, dated as of May 5, 1981, by and between the General Partner, and the Assignor, as amended by the First Amendment to Agreement and Amended Certificate of Limited Partnership (collectively, the Partnership Agreement), including but not limited to a 99% interest in all profits, losses and tax credits under Section 42 of the Code;
WHEREAS, Section 8.2.1 of the Partnership Agreement permits the Assignor to transfer and assign all or any part of the LP Interest to the Assignee;
WHEREAS, Section 8.2.2 of the Partnership Agreement authorizes the substitution of the Assignee as a Substitute Limited Partner in the Partnership;
WHEREAS, the Assignor wishes to assign the LP Interest to the Assignee as of the Effective Date for $21,900.00, and the Assignee wishes to accept such assignment of the LP Interest for the consideration and upon the terms and conditions of this Amendment;
WHEREAS, the Assignee is willing to undertake all of the obligations of the Assignor under the Partnership Agreement (the Obligations); and
WHEREAS, the General Partner desires to acknowledge such undertaking of the Obligations by the Assignee and to release the Assignor from the Obligations and all other liabilities in connection with the LP Interest.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration hereinafter described, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. Capitalized terms used but not defined herein shall have the respective meanings attributed thereto in the Partnership Agreement.
2. As of the Effective Date and in consideration of Twenty-One Thousand Nine Hundred Dollars and 00/100 ($21,900.00) paid by the Assignee to the Assignor, and provided such consideration has in fact been paid to the Assignor, the Assignor assigns to the Assignee and the Assignee accepts from the Assignor, one hundred percent (100%) of the Assignors right, title and interest in and to the LP Interest, including, without limitation, the Assignors entire right to allocations of Profits and Losses and tax credits under Section 42 of the Code and all items entering into the computation thereof, and to all distributions of Cash from Operations, Net Refinancing Cash and surplus cash from a Disposition, however denominated, under the Partnership Agreement; provided, however, that (i) solely for purposes of allocating the Profits and Losses and tax credits from operations (collectively, the Tax Benefits) between the Assignor and the Assignee, the Assignor shall receive all Tax Benefits attributable to any day before December 1, 2012, and the Assignee shall receive all Tax Benefits attributable to December 1, 2012, and any day thereafter; and (ii) the Assignee shall receive all distributions of Cash from Operations or the Net Refinancing Cash or the surplus cash from a Disposition distributed by the Partnership after the Effective Date regardless of whether such distributions are attributable to any period prior or subsequent to the Effective Date.
3. The Assignor hereby represents and warrants the following:
b. Conflicts. To the Assignors actual knowledge, the execution, delivery and performance by the Assignor of this Amendment and the performance of the transactions contemplated hereby and thereby will not (A) violate (1) any provision of law, statute, rule or regulation the effect of which would be to cause or be reasonably expected to have a material adverse effect on the ability of the Assignor to perform any of its obligations under this Amendment, (2) any order of any governmental authority having proper jurisdiction over the Assignor, or (3) any provision of any indenture, loan agreement or other material agreement to which the Assignor is a party or by which it or any of its property is or may be bound, (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, loan agreement or other material agreement or (C) result in the creation or imposition of any mortgage, deed of trust, lien, pledge, claim, equity interest, participation interest, security interest or other charge or encumbrance of any kind with respect to the LP Interest.
c. Enforceability. This Amendment has been duly authorized, executed and delivered by the Assignor and the terms hereof constitute the legal, valid and binding obligations of the Assignor enforceable against the Assignor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
d. Title and Ownership. Assignor is the sole legal and beneficial owner of the LP Interest and has full power and lawful authority to transfer, convey and assign to the Assignee all of the Assignors right, title and interest in and to the LP Interest in the manner contemplated hereby. . After giving effect to the consummation of the transactions contemplated hereby, neither the Assignor nor any person claiming under or through the Assignor has any valid claim to or interest in the LP Interest.
e. Liens. The LP Interest is free from all mortgage, deed of trust, lien, pledge, claim, equity interest, participation interest, security interest or other charge or encumbrance of any kind created or authorized by the Assignor.
5. The Assignee represents and warrants to the Assignor that:
b. Authorization. The execution, delivery and performance by the Assignee of this Amendment, the issuance of the Note and the performance of the transactions contemplated hereby and thereby (i) have been duly authorized by all requisite action and (ii) will not (A) violate (1) any provision of law, statute, rule or regulation the effect of which would be to cause or be reasonably expected to have a material adverse effect on the ability of the Transferee to perform any of its obligations under this Amendment, (2) any order of any governmental authority having proper jurisdiction over the Assignee, (3) any provision of the organizational documents of the Assignee, or (4) any provision of any indenture, loan agreement or other material agreement to which the Assignee is a party or by which it or any of its property is or may be bound, or (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, loan agreement or other material agreement.
7. By its execution hereof, the Assignee hereby agrees to become a Substitute Limited Partner of the Partnership and, subject to the foregoing provisions of this Amendment, agrees to be bound (to the same extent as the Assignor was bound) by the Partnership Agreement and the provisions therein as they relate to the Assignor or the LP Interest.
11. Notwithstanding any provisions to the contrary in the Partnership Agreement and after consultation with its counsel, the General Partner hereby consents to the transfer and assignment of the LP Interest to the Assignee and the substitution of the Assignee as a Substitute Limited Partner with respect to the LP Interest pursuant to this Amendment without any conditions or requirements other than with respect to the representations, warranties, covenants and undertakings of the parties expressly set forth in this Amendment, including, without limitation, the Assignees (i) assumption of, and agreement to pay, the Obligations, and (ii) agreement to be bound by the terms of the Partnership Agreement.
[End of text; signature page follows]
ASSIGNOR: REAL ESTATE ASSOCIATES LIMITED III, a California limited partnership
By National Partnership Investments, LLC, a California limited liability company, its general partner
By Bethesda Holdings I, LLC,
a Delaware limited liability company,
its member
By AIMCO/Bethesda Holdings, Inc.,
a Delaware corporation,
its member
By /s/John Bezzant
Name: John Bezzant
Title: Executive Vice President
ASSIGNEE AND SUBSTITUTE
LIMITED PARTNER: ALVAREZ BRACERO LP, LLC,
a limited liability company
By ALVAREZ BRACERO ASSOCIATES, INC., its sole member
By: /s/Felix Alvarez
Name: Felix Alvarez
Title: President
GENERAL PARTNER: BUCARE DEVELOPMENT CORPORATION
By: /s/Angel R. Caban
Name: Angel R. Caban
Title: President