Exhibit 10.2
ASSIGNMENT
AGREEMENT
This
Assignment Agreement (the “Agreement”) is made as of May 19, 2011
(the “Effective Date”), by and among Real Estate Associates Limited VI, a
California limited partnership (the “Assignor”); Linda Kittleson (
“Assignee”), and Duane A. Kittleson in his capacity as general partner of
New-Bel-Mo Enterprises, a limited partnership formed under the laws of the State
of Wisconsin (the “Partnership”) (the “General Partner” and
together with the Assignor, and the Assignee, each a “Party“ and, as the
context requires, any two or more, collectively, the “Parties”), with
reference to the following:
A.
The Partnership is governed by that certain Amended and Restated Agreement and
Certificate of Limited Partnership of the Partnership, dated August 22, 1983, as
it may have been amended from time to time (the “Amended Partnership
Agreement”) (any capitalized word or phrase used but not defined herein
shall have the meaning set forth in the Amended Partnership Agreement).
B.
The General Partner is the operating general partner of the Partnership and
Assignor is the limited partner of the Partnership.
C.
The Partnership is a plaintiff in various lawsuits filed in the United States
Court of Federal Claims against the United States of America (the “Government”)
seeking compensation for the Government’s alleged repudiation of certain
contract rights held by the Partnership and others relating to multi-family
housing properties which are part of the rural housing program under Section 515
and 521 of the Housing Act of 1949 (the “Litigation”).
D.
Assignor has agreed to sell and assign all of its interest in the Partnership to
the Assignee and withdraw from the Partnership, the Assignee has agreed to
purchase such interest, and the General Partner has consented to such assignment
and withdrawal, 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.
Sale. Effective as of the Closing (as hereinafter defined),
and subject to the terms and conditions set forth below (i) Assignor agrees to
sell to the Assignee one hundred percent (100%) of Assignor’s interest in the
Partnership, including, without limitation, all Profits and Losses, Cash from
Operations, Distributions of Cash from Refinancing, Distributions of Cash from
Disposition, all other Partnership assets, and all rights to any fees, loan
repayments and reimbursements (collectively, the “Interest”), and
(ii) Assignee agrees to purchase the Interest.
2.
Consideration. In consideration for Assignor’s Interest, at
the Closing, the Assignee shall pay to Assignor to One Hundred Twenty One
Thousand Eighty Two and no/100 Dollars ($121,082.00), less $2,161.00 withheld to
pay State of Wisconsin withholding tax on nonresident partners for the year
ended December 31, 2010 and an estimate of such tax for 2011 in the amount of
$5,061.00 (the “2011 estimate”). The Partnership will hold the amount
withheld to pay the 2011 Wisconsin withholding tax
until the proper amount of such withholding is determined in 2012 and shall
refund to Assignee the amount not needed, if any, to pay such tax at the time
the actual amount is determined (the “Payment”). The Payment will
be paid by wire transfer of immediately available funds pursuant to instructions
from Assignor through a mutually agreeable escrow agent.
3.
Closing. “Closing” shall mean the date on which Payment is
made to Assignor and the Interest is transferred by Assignor to the
Assignee. Closing shall occur on May 19, 2011 or as otherwise agreed by
the parties (the “Closing Date”); provided, however, if Closing does not
occur by May 31, 2011, this Agreement shall terminate without any further action
by the parties. As of the Closing, the Assignee shall pay Assignor the
Payment.
4.
Releases.
4.1
Effective as of the Closing, except for the representations, warranties
and covenants of the Assignor set forth in this Agreement, the General Partner,
for itself and for and on behalf of its partners, sub-partners, members,
directors, officers, employees, servants, agents, representatives,
administrators, assigns, and attorneys, and on behalf of the Partnership
(collectively, the “Partnership Parties”) and Chyane Group LLC, hereby
release, waive and relinquish all actions, causes of action, claims and demands
whatsoever, at law or in equity, and damages (collectively, “Claims”)
that any of the Partnership Parties or Chyane Group LLC has or may have against
Assignor and/or its respective partners, sub-partners, members, directors,
officers, employees, servants, agents, representatives, administrators, assigns,
and attorneys (collectively, the “Assignor Parties”) from the beginning
of time up to and including the Closing Date.
4.2
Effective as of the Closing, except for the representations, warranties
and covenants of the General Partner, on behalf of the Partnership, set forth in
this Agreement, Assignor, for itself and the other Assignor Parties, hereby
releases, waives, relinquishes all Claims that Assignor or any of the Assignor
Parties has or may have against the Partnership Parties, or any of them, and the
Chyane Group LLC, from the beginning of time up to and including the Closing
Date.
5.
Representations and Warranties.
5.1
As a material inducement to the Assignee and the General Partner entering
into this Agreement, Assignor hereby represents and warrants to the Assignee and
the General Partner that the following are true and correct as of the Effective
Date, and as of Closing, and which warranties and representations shall survive
the Effective Date, Closing and the withdrawal of Assignor from the
Partnership:
(a)
Assignor is the owner of the Interest and the Interest is not subject to
any claim, lien, pledge, encumbrance, or security interest of any nature
whatsoever and the Assignee shall acquire the same free of any rights or claims
thereto by any other party claiming by, through or under Assignor.
(b)
The execution and delivery of this Agreement by Assignor 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 the Assignee and the General Partner, this
Agreement is binding upon and enforceable against Assignor in accordance with
its terms.
(c)
Assignor’s Interest represents all of the interest in the Partnership
owned by the Assignor. Assignor possesses no other equity in the
Partnership or any other right to receive payment upon the sale or other
disposition of the Partnership, or the Partnership’s assets, or otherwise.
5.2
As a material inducement to Assignor entering into this Agreement, the
Assignee hereby represents and warrants to Assignor that (i) the
execution and delivery of this Agreement by the Assignee and the performance of
the transactions contemplated herein have been duly authorized by all requisite
proceedings; (ii) assuming the due and proper execution and delivery by
Assignor, this Agreement is binding upon and enforceable against the Assignee in
accordance with its terms; (iii) Assignee has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders’ fees or agents’
commissions or other similar payment in connection with this Agreement, (iv)
Assignee is aware of the restrictions on transfer or encumbrance of the Interest
under the Amended 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”), is able to bear the economic
risk of his investment in the Interest, is aware that he 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 Amended Partnership Agreement and the Interest is
registered, or an exemption from the registration requirements is available with
respect thereto, under the Securities Laws, (v) Assignee is acquiring the
Interest for her own account and not with a view to resell, transfer or
otherwise dispose of it, and (vi) Assignee is an affiliate of the General
Partner and is experienced in financial transactions such as ownership of the
Interest, understands the business and operations of the Partnership, and has
had an opportunity to ask questions about and seek information about the
Partnership and the Partnership’s Project, and has not relied upon any express
or implied representations or warranties from Assignor with regard to the
Interest, the Partnership, or the Project. The foregoing representations
and warranties are true and correct as of the Effective Date and as of Closing,
and shall survive the Effective Date, Closing and the withdrawal of Assignor
from the Partnership.
5.3
As a material inducement to Assignor entering into this Agreement, the
General Partner, on behalf of the Partnership, hereby represents and warrants to
Assignor that: (i) the execution and delivery of this Agreement by the
General Partner and its performance of the transactions contemplated herein have
been duly authorized by all requisite partnership proceedings;
(ii) assuming the due and proper execution and delivery by Assignor, this
Agreement is binding upon and enforceable against the Partnership in accordance
with its terms; (iii) the Litigation has been settled and the Partnership
has received a total of $342,597.94 in settlement proceeds net of legal fees,
but before amounts paid pursuant to (v), below; (iv) the Partnership will not
receive any additional proceeds from the Litigation or the settlement of the
Litigation; (v) the Partnership has paid a total of $171,298.97 to the General
Partner or its affiliates, including, but not limited to, Chyane Group, LLC for
services rendered in conjunction with the Litigation; and (vi) the
Partnership has advised Rural Development (The U.S. Department of Agriculture)
that Assignor is exiting the Partnership and that Assignee is acquiring
Assignor’s Interest in the Partnership and is being substituted as the limited
partner, and Rural Development has advised the Partnership that the transaction
contemplated by this Agreement does not require approval by Rural
Development. The foregoing representations and warranties are true and
correct as of the Effective Date and shall survive the Effective Date and the
withdrawal of Assignor 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, the
Project or any other matter.
6.
Tax and Financial Matters.
6.1
The General Partner hereby agrees to and shall deliver to Assignor drafts
of the Partnership’s 2011 federal and state tax returns by approximately March
1, 2012, for the period during which the Assignor was a limited partner, for
Assignor’s review prior to preparation of the final tax returns, and if the
Assignor has given the General Partner comments, if any, on the draft returns
within twenty-one (21) days after the drafts are submitted to Assignor for
review, shall deliver to Assignor the final form of such 2011 tax returns by
April 10, 2012; provided, Assignor hereby acknowledges that it shall consent for
all purposes to the Partnership’s election pursuant to Section 754 of the
Internal Revenue Code of 1986, as amended, if so set forth on the Partnership’s
2011 federal income tax return for the period during which the Assignor was a
limited partner;
6.2
Assignor consents to the Partnership’s use of the interim closing of the
partnership books method as described in Treasury Regulation §1.706-1(c)(2) with
respect to all items of gain, loss, income, deduction, or credit in reporting
the Partnership’s 2011 taxable income, for the period during which the Assignor
was a limited partner, with the closing of the books to occur with respect to
the Assignor effective as of the time of the Closing.
6.3
The General Partner shall deliver to the Assignor the audited financial
statements of the Partnership for Fiscal Year 2011 by March 31, 2012 in the form
required by Rural Development (the U.S. Department of Agriculture).
6.4
If the General Partner shall fail to have prepared and delivered any of
the returns or other information required by Sections 6.1 and 6.3, above, then,
after written notice to the General Partner and the failure of the General
Partner to cure the failure within thirty (30) days after such notice is
received, the Assignor may have the returns and other information prepared at
the sole cost and expense of the Partnership.
6.5
The General Partner shall, with respect to any matter which could affect
the Assignor, give prompt notice to the Assignor of any of the following actions
taken by the General Partner, on behalf of the Partnership, and, the General
Partner shall, if applicable, permit the Assignor to participate, solely on its
own behalf, in any proceedings and/or disputes related to such actions at
Assignor’s own expense:
(a)
Extension of the statute of limitations for assessing or computing any tax
liability against the Partnership (or the amount or character of any Partnership
tax items);
(b)
Settlement of any audit with the IRS concerning the adjustment or readjustment
of any partnership item(s) (within the meaning of Section 6231(a)(3) of the
Code);
(c)
Filing of a request for an administrative adjustment with the IRS at any time or
filing of a petition for judicial review with respect to any such request;
(d) Initiation or
settlement of any judicial review or action concerning the amount or character
of any partnership tax item(s) (within the meaning of Section 6231(a)(3) of the
Code); or
(e)
Intervention in any action brought by any other Partner for judicial review of a
final adjustment.
7.
Miscellaneous.
7.1
The Assignor and the General Partner, on behalf of the Partnership,
acknowledge and agree that, as of the Closing, Assignor will no longer be a
limited partner of the Partnership and all of Assignor’s rights and obligations
under the Amended Partnership Agreement and under any and all other written or
oral agreements by and among Assignor, the Partnership, and/or the General
Partner shall be terminated and of no further force or effect as of the Closing,
except with respect to the Assignor’s representations, warranties and covenants
set forth herein. Without limitation to the generality of the foregoing,
Assignor hereby waives any and all rights and claims with respect to
(a) Assignor’s Interest, except as set forth in Section 6, above, and then
solely with respect to Assignor’s interest in the matters specified therein, and
(b) Assignor’s role as a limited partner of the Partnership set forth in the
Amended Partnership Agreement or otherwise. Notwithstanding anything contained in this Agreement, the
Partnership and the General Partner acknowledge that matters may arise after the
Closing that relate back to events that occurred prior to the Closing (for
purposes of illustration and not limitation, audits by the IRS). If such
matters may affect the Assignor, the Partnership and the General Partner agree
that they shall conduct themselves in a manner which is consistent with their
obligations to the Assignor of good faith and fair dealing.
7.2
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, (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:
If
to the Assignor:
c/o
National Partnership Investments Corp.
6701
Center Drive, Suite 520
Los
Angeles, California 90045
Attention:
Asset Management
with
a copy to:
c/o
Apartment Investment and Management Company
4582
S. Ulster St., Suite 1100
Attention:
Legal Department
Denver,
Colorado 80237
If to the Assignee, the Partnership, or the General
Partner:
Duane A. Kittleson
DAK Developers/Management, Inc.
1020 Lincoln Ave.
Fennimore,
WI 53809
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.
7.3
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.
7.4
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.
7.5
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 of Wisconsin.
7.6
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 the
Assignor.
7.7
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.
7.8
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.
7.9
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.
7.10
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.
7.11
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.
7.12
The Partnership shall undertake, at its expense, to comply with any
further documentation or requirements which may hereafter be imposed by Rural
Development with respect to Assignor’s withdrawal from the Partnership, and
shall indemnify and hold harmless Assignor from and with respect to any such
costs or expenses; provided that Assignor furnishes any relevant information
required by Rural Development in connection therewith, at its expense.
[Signature Page to Follow]
IN WITNESS WHEREOF, the General Partner, the Assignee, and the
Assignor have entered into this Agreement as of the date set forth above.
GENERAL
PARTNER:
/s/
Duane A. Kittleson
DUANE
A. KITTLESON
ASSIGNEE:
/s/
LINDA KITTLESON
LINDA
KITTLESON
ASSIGNOR:
REAL
ESTATE ASSOCIATES LIMITED VI,
a
California limited partnership
By
National Partnership Investments Corp.,
a
California corporation, its General Partner
By:
/s/John McGrath
Name:
John McGrath
Title:
Senior Vice President
Chyane
Group LLC hereby joins this Assignment Agreement for the purpose of agreeing to
its release of the Assignor Parties set forth in Section 4.1 hereof.
CHYANE
GROUP LLC
By:
/s/ Duane A. Kittleson
Duane A. Kittleson
