PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made and entered into as
of January 13, 2000, by and between Echelon International Corporation, a Florida
corporation, and Echelon Affordable Housing, Inc., a Florida corporation, as
sellers (collectively, "Sellers"), and ▇▇▇▇▇▇ Affordable Housing, Inc., a
Delaware corporation, as purchaser ("Purchaser").
WITNESSETH
WHEREAS, Sellers are the legal and beneficial owners of limited
partner interests (the "Partnership Interests") in five multi-investor tax
credit funds (the "Funds"), which Partnership Interests and Funds are more
particularly identified in Exhibit A hereto; and
WHEREAS, Purchaser desires to purchase from Sellers, and Sellers
desire to sell to Purchaser, all the Partnership Interests on the terms and
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Purchase of Partnership Interests
1.1 Basic Transaction. On and subject to the terms and conditions
of this Agreement, Purchaser shall purchase from Sellers, and Sellers
shall sell to Purchaser, the Partnership Interests.
1.2 Purchase Price. The aggregate purchase price (the "Purchase
Price") for the Partnership Interests shall equal the sum of
$21,065,000 plus the Recapture Premium (as defined in Section 5.7),
and shall be payable as follows:
(a) $21,065,000 shall be paid by Purchaser to Sellers at the
closing of the transactions contemplated by this Agreement (the
"Closing") by wire transfer of immediately available U.S. funds
to an account designated by Sellers; and
(b) the Recapture Premium shall be paid in accordance with
Section 5 hereof.
1.3 The Closing. The Closing shall be held at the offices of
White & Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, commencing at 10:00 a.m. (New York time) on January 14, 2000,
or at such other place and earlier time and date as shall be agreed
upon by the parties hereto (the actual date of the Closing is
hereinafter referred to as the "Closing Date").
1.4 Deliveries at Closing. At the Closing, Sellers will deliver
to Purchaser the various certificates, instruments and documents
referred to in Section 6.1 hereof, and Purchaser will deliver to
Sellers the cash portion of the Purchase Price described in Section
1.2(a) and the various certificates, instruments and documents
referred to in Section 6.2 hereof.
2. Representations and Warranties of Sellers
Sellers represent and warrant to Purchaser that the statements
contained in this Section 2 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date. The
representations and warranties set forth in this Section 2 shall not survive the
Closing Date (except for those set forth in Sections 2.5 and 2.12, which shall
survive the Closing Date; provided, however, that the representations and
warranties set forth in Section 2.5 shall terminate upon the merger of EIN
Acquisition Corp. with and into Echelon International Corporation (the
"Merger")).
2.1 Organization. Each Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida.
2.2 Authorization. Each Seller has full power and authority to
execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by each Seller and,
assuming that this Agreement constitutes a valid and binding
obligation of Purchaser, is a valid and binding obligation of each
Seller enforceable against each Seller in accordance with its terms,
except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
2.3 Noncontravention. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (a) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court to which
either Seller is subject or any provision of its charter or bylaws, or
(b) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any notice or
consent under any agreement, contract, lease, license, instrument or
other arrangement to which either Seller is a party or by which it is
bound or to which any of its assets are subject, except for such
notices and consents which must be given or obtained pursuant to the
partnership agreements for the various Funds (the "Fund Agreements").
2.4 Description of Partnership Interests. With respect to each
Partnership Interest, the following information is set forth on
Exhibit A hereto:
(a) the name, state of organization, taxpayer identification
number and tax shelter registration number of the relevant Fund;
and
(b) the number of units comprising such Partnership Interest
and whether such Partnership Interest is represented by a
separate certificate.
2.5 Ownership of Partnership Interests. Sellers are the sole
legal and beneficial owners of the Partnership Interests. Sellers
have not granted any security interests, liens, claims or
encumbrances with respect to the Partnership Interests which will
remain outstanding as of the Closing Date. At the Closing,
Sellers will transfer the Partnership Interests to Purchaser free
and clear of any liens, claims or encumbrances of any kind
whatsoever of which Sellers have knowledge.
2.6 Consents. Except for the consent of the general partner
of each Fund (a "General Partner") and except as set forth in the
Fund Agreements, no consent, authorization or approval of any
person, or of any court or governmental authority, is required in
connection with the consummation by Sellers of the transactions
contemplated by this Agreement.
2.7 Capital Contributions. Sellers have made all scheduled
capital contributions required to be made by them to any Fund
under the existing Fund Agreements as a result of the ownership
of the Partnership Interests.
2.8 Fund Agreements. Sellers have provided to Purchaser true
and correct copies of each Fund Agreement (and all amendments
thereto) and all other agreements, instruments or writings of any
kind in the possession of Sellers which set forth or govern the
rights and obligations of either Seller in its capacity as the
owner of the Partnership Interests, in each case to which either
Seller is a party or of which either Seller has knowledge.
2.9 Defaults. Sellers are not in default with respect to any
of their material obligations under any Fund Agreement and, to
Sellers' knowledge, no General Partner is in default with respect
to any of its material obligations under the applicable Fund
Agreement.
2.10 Audits. To Sellers' knowledge, except as set forth in
Schedule 2.10, no income tax audit has ever been commenced by the
Internal Revenue Service with respect to any Fund or any
lower-tier limited partnership or limited liability company (a
"Project Partnership") in which any Fund has invested.
2.11 Litigation. To Sellers' knowledge, except as set forth
in Schedule 2.11, no litigation, arbitration or similar
proceeding has been commenced, or is threatened, against any Fund
or Project Partnership which, if determined adversely to any such
party, would materially and adversely affect such Fund or Project
Partnership.
2.12 Brokers. Sellers have no liability or obligation to pay
any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by this Agreement and no
such person or entity claims any of the foregoing with respect to
the transactions contemplated by this Agreement.
3. Representations and Warranties of Purchaser
Purchaser represents and warrants to Sellers that the statements
contained in this Section 3 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date. The
representations and warranties set forth in this Section 3 shall not survive the
Closing Date (except for (x) those set forth in Sections 3.4, 3.5 and 3.6, which
shall survive for a period of one year after the Closing Date, and (y) those set
forth in Section 3.7, which shall survive the Closing Date).
3.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
3.2 Authorization. Purchaser has full power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Purchaser and, assuming that this Agreement
constitutes a valid and binding obligation of Sellers, is a valid and
binding obligation of Purchaser enforceable against Purchaser in accordance
with its terms, except to the extent that its enforceability may be subject
to applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
3.3 Noncontravention. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will (a) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge or other restriction of any
government, governmental agency or court to which Purchaser is subject or
any provision of its charter or bylaws, or (b) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify or cancel,
or require any notice or consent under any agreement, contract, lease,
license, instrument or other arrangement to which Purchaser is a party or
by which it is bound or to which any of its assets are subject.
3.4 Due Diligence. Purchaser has conducted all due diligence that
Purchaser deems necessary or desirable with respect to the Partnership
Interests, this Agreement and the transactions contemplated hereby in order
for it to enter into this Agreement and consummate the transactions
contemplated hereby. Except for the limited representations of Sellers
specifically set forth in Section 2 hereof, Purchaser will rely solely upon
such due diligence in purchasing the Partnership Interests. Notwithstanding
anything in this Agreement, it is expressly understood and agreed that
Purchaser is acquiring the Partnership Interests "AS IS", "WHERE IS", and
that Sellers have not made and do not and will not make any representations
or warranties, express or implied, which might be pertinent in considering
whether to purchase the Partnership Interests or to make and enter into
this Agreement, except, in each case, to the extent of the limited
representations set forth in Section 2 hereof. Sellers are not liable or
bound in any manner by any warranties, either express or implied,
guarantees, or any promises, statements, representations or information
pertaining to the Partnership Interests or to the value thereof made or
furnished by any broker or any agent, employee, servant or other person
representing or purporting to represent Sellers.
3.5 Purchase for Investment. Purchaser will acquire the Partnership
Interests for its own account for investment and not with a view toward any
resale or distribution thereof, without prejudice, however, to the rights
of Purchaser at all times to sell or otherwise dispose of all or any part
of the Partnership Interests under the Securities Act of 1933, as amended
(the "Securities Act"), or under an exemption from such registration
available under the Securities Act. Purchaser is an "accredited investor"
as defined under Regulation D of the Securities Act and has substantial
experience in purchasing investments similar to the Partnership Interests.
Purchaser has evaluated the merits and risks inherent in purchasing the
Partnership Interests and is a able to bear the financial risks of such
investment.
3.6 Tax Status. Purchaser is neither a "foreign person" within the
meaning of Sections 897 and 1445 of the Internal Revenue Code of 1986, as
amended (the "Code"), nor a "tax-exempt entity" within the meaning of
Section 168(h)(2) of the Code.
3.7 Brokers. Purchaser has no liability or obligation to pay any fees
or commissions to any broker, finder or agent with respect to the
transactions contemplated by the Agreement and no such person or entity
claims any of the foregoing with respect to the transactions contemplated
by this Agreement.
4. Covenants
4.1 Consents. Purchaser will use reasonable efforts to obtain, prior
to January 14, 2000, all consents required for the admission of Purchaser
as a substitute limited partner in each Fund (the "Consents"); provided
that Sellers shall have cooperated with Purchaser in obtaining such
Consents and in complying with the applicable requirements of the Fund
Agreements prior to such time. Purchaser shall pay all costs incurred by it
in connection with obtaining the Consents and effecting the admission of
Purchaser as a substitute limited partner in each Fund, including any
amounts payable to any General Partner pursuant to a Fund Agreement.
4.2 Delivery of Documents. Prior to Closing, Sellers shall deliver to
Purchaser all documents, or copies thereof, in its possession which relate
to any of the Funds and which do not contain any proprietary or
confidential information. Sellers may retain copies of any or all of such
documents.
4.3 Transfer Taxes. Purchaser shall pay when due all transfer taxes,
if any, imposed by any governmental authority with respect to the transfer
of the Partnership Interests to Purchaser, and shall indemnify and hold
Sellers harmless from and against any loss, liability or claim against or
incurred by Sellers as a result of Purchaser's failure to pay such transfer
taxes.
4.4 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Partnership Interests in accordance with the schedule
attached hereto as Exhibit B. Each Seller and Purchaser shall utilize such
allocation in the preparation of all tax returns and financial statements
reflecting its sale or purchase, as the case may be, of the Partnership
Interests and shall not take any positions which are inconsistent
therewith.
5. Recapture Bonds
5.1 Procedures. Promptly after Closing, Purchaser and Sellers shall
take the following actions in order to obtain any recapture bonds (the
"Bonds") required to be delivered to the Internal Revenue Service (the
"IRS") in order for Sellers to avoid any recapture of federal income tax
credits claimed by Sellers pursuant to Section 42 of the Code with respect
to their ownership of the Partnership Interests.
(a) Sellers shall request from the IRS a 30-day extension of the
due date for providing the Bonds (such due date, as it may be extended
from time to time, is hereinafter referred to as the "Bonding Date");
(b) Purchaser shall use its best efforts to obtain a written
commitment from a surety selected by Purchaser and reasonably
acceptable to Sellers (the "Surety") which contains the following
provisions:
(i) if the Merger occurs prior to the Bonding Date and
Purchaser guarantees the obligations of Sellers to the Surety
with respect to the Bonds, the Surety will issue the Bonds on or
prior to the Bonding Date for a premium based on Purchaser's
credit rating;
(ii) if the Merger does not occur prior to the Bonding Date
and Purchaser does not guarantee the obligations of Sellers to
the Surety with respect to the Bonds, the Surety will issue the
Bonds on or prior to the Bonding Date for a premium based on
Sellers' credit rating; and
(iii) if the Merger occurs after the Bonding Date and the
Surety has already issued the Bonds for a premium based on
Sellers' credit rating and Purchaser then delivers to the Surety
a guarantee of the obligations of Sellers to the Surety with
respect to the Bonds, then the surety will pay to the Purchaser,
in exchange for such guarantee, an amount equal to the excess of
(x) the premium charged for the Bonds based on Sellers' credit
rating over (y) the premium that would have been charged for the
Bonds based on Purchaser's credit rating.
(c) Purchaser and Sellers shall cooperate with each other and
prepare, execute and deliver such documents and forms as may be
necessary to obtain the Bonds prior to the Bonding Date.
5.2 Merger Occurs Prior to Bonding Date. If the Merger occurs prior to
the Bonding Date, whether or not the commitment described in Section 5.1(b)
is obtained, Purchaser will (a) provide such guarantee or other form of
credit enhancement as may be required in order to cause a surety to issue
the Bonds on behalf of Sellers on or prior to the Bonding Date and (b) pay
directly to such surety the full amount of all premiums payable as
consideration for the issuance of the Bonds.
5.3 Bonding Date Occurs Prior to Merger. If the Bonding Date occurs
prior to the Merger, whether or not the commitment described in Section
5.1(b) is obtained, Sellers will (a) cause a surety to issue the Bonds on
behalf of Sellers on or prior to the Bonding Date and (b) pay directly to
such surety any premium then due as consideration for the issuance of the
Bonds. Within two business days after the later of (x) the consummation of
the Merger and (y) the delivery by Sellers to Purchaser of a receipt and/or
invoice for any premium paid and/or payable as consideration for the
issuance of the Bonds, Purchaser will pay to Sellers an amount equal to
such premium. If, after the Merger, Purchaser guarantees the obligations of
Sellers to a surety with respect to the Bonds, then Purchaser shall be
entitled to retain any rebate or other payment made by such surety in
exchange for Purchaser's guarantee.
5.4 Merger Does Not Occur. If any agreement with respect to the merger
is not executed prior to January 31, 2000, or following execution such
agreement is terminated for any reason, Purchaser shall pay $435,000 to
Sellers within two business days after the applicable date and, upon such
payment, shall be relieved of any further obligations under this Section 5.
5.5 Merger Occurs but Bonds Not Obtained. If, for any reason other
than the willful failure by Sellers to comply with the provisions of this
Section 5, the Sellers are unable to obtain the Bonds and the Merger is
consummated despite the absence of the Bonds, Purchaser shall pay, and
hereby agrees to pay, to Sellers an amount equal to fifty percent (50%) of
any "credit recapture amount" (as defined in Section 42(j)(2) of the Code)
of Sellers resulting from the transfer of the Partnership Interests
pursuant hereto.
5.6 Payments. Any amounts payable to Sellers pursuant to Section 5.3,
Section 5.4 or Section 5.5 shall be paid by wire transfer of immediately
available U.S. funds to an account designated by Sellers. Any amount
payable by Purchaser pursuant to Section 5.3 shall be paid in such manner
as shall be agreed upon by Purchaser and the surety.
5.7 Recapture Premium. For purposes of this Agreement, the term
"Recapture Premium" shall mean the amount payable by Purchaser pursuant to
Section 5.2, Section 5.3 (less any rebate or other payment received by
Purchaser from a surety), Section 5.4 or Section 5.5, as the case may be.
5.8 Purchaser to Include Affiliates. For purposes of the foregoing
provisions of this Section 5, the term "Purchaser" also includes any
affiliate of Purchaser that performs any of the obligations of Purchaser
under this Section 5.
6. Closing Conditions
6.1 Conditions to Obligations of Purchaser. The obligation of
Purchaser to consummate the transactions contemplated by this Agreement is
subject to the satisfaction or waiver of the following conditions:
(a) the representations and warranties set forth in Section 2
shall be true and correct in all material respects as of the Closing
Date;
(b) Sellers shall have performed and complied with all their
covenants hereunder in all material respects through the Closing Date;
(c) there shall not be any injunction, judgment, order, decree or
ruling in effect preventing consummation of any of the transactions
contemplated by this Agreement;
(d) Sellers shall have delivered to Purchaser a Closing
Certificate in the form attached hereto as Exhibit C;
(e) to the extent that Sellers have previously granted security
interests to the Funds with respect to the Partnership Interests,
Sellers shall have delivered to Purchaser, with respect to each such
Partnership Interest, a copy of a termination statement evidencing the
termination of the applicable Fund's security interest in such
Partnership Interest or such other documentation reasonably
satisfactory to Purchaser which evidences that the security interest
has been terminated;
(f) each of the required Consents shall have been obtained and
appropriate documentation, in each case in the form specified by the
respective Fund Agreement and otherwise in form and substance
reasonably satisfactory to Purchaser, shall have been executed by all
relevant parties to effect the transfer of the Partnership Interests
to Purchaser and the admission of Purchaser as a substitute limited
partner in each Fund; and
(g) Sellers shall have delivered to Purchaser a Certificate of
Non-Foreign Status in the form attached hereto as Exhibit D.
6.2 Conditions to Obligations of Seller. The obligation of Sellers to
consummate the transactions contemplated by this Agreement is subject to
the satisfaction or waiver of the following conditions:
(a) the representations and warranties set forth in Section 3
shall be true and correct in all material respects as of the Closing
Date;
(b) Purchaser shall have performed and complied with all its
covenants hereunder in all material respects through the Closing Date;
(c) there shall not be any injunction, judgment, order, decree or
ruling in effect preventing consummation of any of the transactions
contemplated by this Agreement;
(d) Purchaser shall have delivered to Sellers a Closing
Certificate in the form attached hereto as Exhibit E; and
(e) each of the required Consents shall have been obtained and
appropriate documentation, in each case in the form specified by the
respective Fund Agreement and otherwise in form and substance
reasonably satisfactory to Sellers, shall have been executed by all
relevant parties to effect the transfer of the Partnership Interests
to Purchaser and the admission of Purchaser as a substitute limited
partner in each Fund, and Purchaser shall have cooperated with Sellers
in complying with the applicable requirements set forth in the Fund
Agreements relating to the transfer of the Partnership Interests to
Purchaser and the admission of Purchaser as a substitute limited
partner.
7. Miscellaneous
7.1 No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
7.2 Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement
or any of its rights, interests, or obligations hereunder without the prior
written approval of the other party.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
7.4 Headings. The section headings contained in the Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
7.5 Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given two
business days after it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient
as set forth below:
If to Sellers prior to the Merger:
Echelon International Corporation
and Echelon Affordable Housing, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, prior to the
Merger, to:
White & Case LLP
1155 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sellers after the Merger:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, after the Merger,
to:
▇▇▇▇▇ Raysman ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
▇▇▇▇▇▇ Affordable Housing, Inc
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim or other communication
shall be deemed to have been duly given unless and until it actually is
received by the intended recipient. Any party may change the address to
which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other party notice in the
manner herein set forth.
7.7 Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New
York.
7.8 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
Purchaser and Sellers. No waiver by any party of any default,
misrepresentation, or beach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
7.9 Severability. If any term, provision, covenant or restriction
contained in this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its
regulatory policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
7.10 Expenses. Except as otherwise specifically provided herein, each
party hereto will bear its own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
7.11 Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean including
without limitation.
7.12 Knowledge. When any representation or warranty contained in this
Agreement is expressly qualified by the knowledge of Sellers, such
knowledge shall mean the actual knowledge of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇. and ▇▇▇ ▇. ▇▇▇▇▇▇▇.
7.13 Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference
and made a part hereof.
7.14 Entire Agreement. This Agreement constitutes the entire agreement
among the parties and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, to the extent
they have related in any way to the subject matter hereof.
7.15 Termination. This Agreement shall terminate automatically if the
Closing does not occur on or before January 14, 2000, unless the Closing
Date is extended by mutual agreement of all the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PURCHASER: ▇▇▇▇▇▇ AFFORDABLE HOUSING, INC.
By /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SELLERS: ECHELON INTERNATIONAL CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
ECHELON AFFORDABLE HOUSING, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
EXHIBIT A
DESCRIPTION OF PARTNERSHIP INTERESTS
======================= ================== =================== ====================== ================= ================
State of Taxpayer Tax Shelter Number of Units Holding in
Name of Fund Organization Identification Registration Number Held Certificate
Number of Fund Form?
======================= ================== =================== ====================== ================= ================
American Tax Credit Delaware ▇▇-▇▇▇▇▇▇▇ 96058000264 4 No
Corporate Fund III,
L.P.
----------------------- ------------------ ------------------- ---------------------- ----------------- ----------------
KeyCorp Investment Ohio ▇▇-▇▇▇▇▇▇▇ 6 No
Limited Partnership II
----------------------- ------------------ ------------------- ---------------------- ----------------- ----------------
▇▇▇▇▇▇ Housing Tax New York ▇▇-▇▇▇▇▇▇▇ 95276000023 6.738544 Yes
Credit Fund L.P.
----------------------- ------------------ ------------------- ---------------------- ----------------- ----------------
▇▇▇▇▇▇ Housing Tax Delaware ▇▇-▇▇▇▇▇▇▇ 97241000369 8.673 Yes
Credit Fund VI L.P.
----------------------- ------------------ ------------------- ---------------------- ----------------- ----------------
National Corporate California ▇▇-▇▇▇▇▇▇▇ 97139000133 5 No
Tax Credit Fund VII
----------------------- ------------------ ------------------- ---------------------- ----------------- ----------------
EXHIBIT B
ALLOCATION OF PURCHASE PRICE
The cash portion of the Purchase Price payable pursuant to Section
1.2(a) of the Agreement shall be allocated among the Partnership Interests as
follows:
Partnership Interest Price
▇▇▇▇▇▇ Housing Tax Credit Fund L.P. $ 4,452,826
▇▇▇▇▇▇ Housing Tax Credit Fund VI L.P. 5,720,099
KeyCorp Investment Limited Partnership II 4,989,556
National Corporate Tax Credit Fund VII 3,092,815
American Tax Credit Corporate Fund III, L.P. 2,809,704
TOTAL $21,065,000
The Recapture Premium payable pursuant to Sections 1.2(b) and 5 of the
Agreement shall be allocated among the Partnership Interests in the same ratios
as the foregoing cash portion of the Purchase Price is allocated among such
Partnership Interests.
EXHIBIT C
CLOSING CERTIFICATE
Pursuant to Section 6.1(d) of the Purchase Agreement between Echelon
International Corporation and Echelon Affordable Housing, Inc. ("Sellers") and
▇▇▇▇▇▇ Affordable Housing, Inc. ("Purchaser") made and entered into as of
January 13, 2000 (the "Purchase Agreement"), the undersigned hereby certify on
behalf of Sellers as follows:
(1) The representations and warranties of Sellers set forth in Section
2 of the Purchase Agreement are true and correct in all material respects
as of the date hereof;
(2) Sellers have performed and complied with all its covenants under
the Purchase Agreement in all material respects through the date hereof;
and
(3) No injunction, judgment, order, decree or ruling is in effect with
respect to Seller which would prevent the consummation of the transactions
contemplated by the Purchase Agreement.
This ____ day of January, 2000.
ECHELON INTERNATIONAL CORPORATION
By:
Name: ______________________________
Title: ______________________________
ECHELON AFFORDABLE HOUSING, INC.
By:
Name: ______________________________
Title: ______________________________
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
In order to comply with Sections 897 and 1445 of the Internal Revenue
Code (the "Code"), the undersigned hereby certify on behalf of Echelon
International Corporation and Echelon Affordable Housing, Inc. (the "Sellers")
as follows:
(1) Neither Seller is a "foreign person" within the meaning of Section
7701 of the Code;
(2) The employer identification number of Echelon International
Corporation is ▇▇-▇▇▇▇▇▇▇, and the employer identification number of
Echelon Affordable Housing, Inc. is ▇▇-▇▇▇▇▇▇▇;
(3) The address of each Seller is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; and
(4) Each Seller understands that this certification may be disclosed
to the Internal Revenue Service and that any false statement contained
herein could be punished by fine, imprisonment or both.
Under penalties of perjury, the undersigned declare that they have
examined this certification and, to the best of their knowledge and belief, it
is true, correct and complete, and they further declare that they have the
authority to sign this certification on behalf of the Sellers.
This _____ day of January, 2000.
ECHELON INTERNATIONAL CORPORATION
By:
Name: ______________________________
Title: ______________________________
ECHELON AFFORDABLE HOUSING, INC.
By:
Name: ______________________________
Title: ______________________________
EXHIBIT E
CLOSING CERTIFICATE
Pursuant to Section 6.2(d) of the Purchase Agreement between Echelon
International Corporation and Echelon Affordable Housing, Inc. ("Sellers") and
▇▇▇▇▇▇ Affordable Housing, Inc. ("Purchaser") made and entered into as of
January 13, 2000 (the "Purchase Agreement"), the undersigned hereby certifies on
behalf of Purchaser as follows:
(1) The representations and warranties of Purchaser set forth in
Section 3 of the Purchase Agreement are true and correct in all material
respects as of the date hereof;
(2) Purchaser has performed and complied with all its covenants under
the Purchase Agreement in all material respects through the date hereof;
and
(3) No injunction, judgment, order, decree or ruling is in effect with
respect to Purchaser which would prevent the consummation of the
transactions contemplated by the Purchase Agreement.
This ____ day of January, 2000.
▇▇▇▇▇▇ AFFORDABLE HOUSING, INC.
By:
Name: ______________________________
Title: ______________________________