EXHIBIT 10.18
AGREEMENT TO PURCHASE AND SELL PARTNERSHIP INTERESTS
This Agreement To Sell Partnership Interests (the "Agreement") is entered into
as of this 1st day of October, 1999, in Youngstown, Ohio by and between
Austintown Apartments LLC, a limited liability corporation organized and validly
existing under the laws of the State of Ohio whose primary place of business is
0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 ("Austintown Apartments"), Liberty LGP
Limited Partnership, a limited partnership organized and validly existing under
the laws of the Commonwealth of Massachusetts whose primary place of business is
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Liberty LGP"), Liberty Housing
Partners Limited Partnership, a limited partnership organized and existing under
the laws of the Commonwealth of Massachusetts whose primary place of business is
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Liberty Housing"), Xx. Xxxxx
X. Xxxxxx, an individual whose primary place of business is 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxx 00000 ("Mr. Manchi"), and Xx. Xxxxxx X. Xxxxx, an individual
whose primary place of business is 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000
("Xx. Xxxxx").
Whereas, Austintown Associates Limited Partnership is a limited partnership that
was organized and is validly existing under the laws of the State of Ohio whose
primary place of business is 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000
("Austintown Associates"); and
Whereas, the local general partner of Austintown Associates is Mr. Manchi, and
the associate general partner of Austintown Associates is Liberty LGP, and the
sole limited partner of Austintown Associates is Liberty Housing; and
Whereas, the sole business of Austintown Associates is the ownership and
operation of that certain 200 unit multifamily housing project commonly known as
Compass West Apartments, 1050 Compass West, Xxxxxxxxxx, Xxxx 00000 (the
"Project"); and
Whereas, Liberty Housing acquired a ninety-eight percent (98.0%) limited
partnership interest in Austintown Associates as a limited partner (the "Liberty
Housing Interest") and Liberty LGP acquired a one percent (1.0%) associate
general partnership interest in Austintown Associates (the "Liberty Housing
Interest"), which limited and general partnership interests were acquired in
connection with a re-syndication of the original limited and general partnership
interests of Austintown Associates; and
Whereas, the original limited partners of Austintown Associates were Mr. Manchi,
Xx. Xxxxx, Xxxxxxx Xxxxxxx, J. Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxx,
Xxxxx Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxxxx X.
Xxxxxxx, Xxxxxx X. Lanes, Noble X. Xxxxxx, Xxxx X. Xxxxx, Xx., Xxxxxx X.
Xxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xx., Xxxxxx X. Xxxx,
Xxxx X. Xxxxxx, Xxxxx Xxxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxxx
(collectively, the "Original Limited Partners"); and
Whereas, a portion of the purchase price of the Liberty Housing Interest was
paid by Liberty Housing executing and delivering to each Original Limited
Partner a non-recourse promissory note (collectively, the "Original Purchase
Notes" and individually, the "Original Purchase Note"); and
Whereas, Liberty Housing secured repayment of the Original Purchase Notes by
executing and delivering to each Original Limited Partner a pledge agreement
(collectively, the "Pledge Agreements"), which Pledge Agreements granted a
security interest to each Original Limited Partner in an undivided portion of
the Liberty Housing Interest; and
Whereas, Austintown Apartments is desirous of purchasing from Liberty LGP all of
the following, to wit: a) the Liberty LGP Interest; and b) all right, title and
interest that Liberty LGP has had, currently has, and may have in
the future, in and to Austintown Associates, including, without limitation all
right, title and interest in and to any and all real, personal and intangible
property rights and interests of, in and to Austintown Associates, and excluding
only payment of the prorated management fee pursuant to the provisions of
paragraph 4 of this Agreement (collectively, the "Liberty LGP Related Property
Interests"); and
Whereas, Liberty LGP is desirous of selling its Liberty LGP Interest and Related
Property Interests to Austintown Apartments; and
Whereas Austintown Apartments is desirous of purchasing from Liberty Housing all
of the following, to wit: a) the Liberty Housing Interest; and b) all right,
title and interest that Liberty Housing has had, currently has, and may have in
the future, in and to Austintown Associates, including, without limitation, all
right, title and interest in and to any and all real, personal and intangible
property rights and interests of, in and to Ausintown Associates (collectively,
the Liberty Housing Related Property Interests"); and
Whereas, Liberty Housing is desirous of selling its Liberty Housing Interest and
Liberty Housing Related Property Interests to Austintown Associates; and
Therefore, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which consideration is acknowledged by all the parties, Mr.
Manchi, Xx. Xxxxx, Austintown Apartments, Liberty LGP and Liberty Housing
mutually covenant and agree as follows:
1. Sale and Purchase of Liberty LGP Interest and Liberty LGP Related Property
Interests.
Subject to the terms and conditions set forth herein, Liberty LGP agrees to sell
to Austintown Apartments, and Austintown Apartments agrees to purchase from
Liberty, the Liberty LGP Interest and Liberty LGP Related Property Interests.
2. Sale and Purchase of Liberty Housing Interest and Liberty Housing Related
Property Interests.
Subject to the terms and conditions set forth herein, Liberty Housing agrees to
sell to Austintown Apartments, and Austintown Apartments agrees to purchase from
Liberty Housing, the Liberty Housing Interest and the Liberty Housing Related
Property Interests.
3. Purchase Price.
The total purchase price (the "Purchase Price") of the Liberty LGP Interest,
Liberty LGP Related Property Interests, Liberty Housing Interest and Liberty
Housing Related Property Interests being acquired by Austintown Associates from
Liberty LGP and Liberty Housing pursuant to paragraphs 1 and 2 of this Agreement
is the sum of the following: a) Two Hundred Fifty Thousand Dollars
($250,000.00); b) cancellation of the Original Purchase Note dated October 30,
1984, and drawn payable to the order of Mr. Manchi in the original principal
amount of Four Hundred Thousand Dollars ($400,000.00) (the "Manchi Original
Purchase Note"); and c) cancellation of the Original Purchase Note dated October
30, 1984, and drawn payable to the order of Xx. Xxxxx in the original principal
amount of Four Hundred Thousand Dollars ($400,000.00) (the "Xxxxx Original
Purchase Note"). The Purchase Price shall be paid in accordance with the
provisions set forth in paragraph 4 of this Agreement. The parties acknowledge
that this Agreement does not allocate the Purchase Price between Liberty LGP and
Liberty Housing. The parties agree that the purchase price shall be allocated
between Liberty LGP and Liberty Housing at the sole discretion of Liberty LGP
and Liberty Housing.
The Purchase Price shall be paid and deposited with the Limited Escrow Agent (as
hereinafter defined) on or before the Deposit Date (as hereinafter defined) in
the following manner, to wit:
3.1 On or before one business day prior to the Deposit Date, Mr. Manchi
and Xx. Xxxxx, shall make the following contributions to the capital
of Austintown Apartments, to wit: a) cash in the amount of One Hundred
Twenty Five Thousand Dollars ($125,000.00); b) the Manchi Original
Purchase Note, which note shall be endorsed by Mr. Manchi, without
recourse, to the order of Austintown Apartments; c) the Xxxxx Original
Purchase Note, which note shall be endorsed by Xx. Xxxxx, without
recourse, to the order of Austintown Apartments; and d) a promissory
note identical in form and content to the promissory note set forth in
Exhibit A to this Agreement (the "Xxxxxx-Xxxxx Promissory Note").
3.2 On or before the Deposit Date, Austintown Apartments shall undertake
the following actions and make the following deposits with the Limited
Escrow Agent, to wit: a) pay the sum of One Hundred Twenty Five
Thousand Dollars ($125,000.00) to the Limited Escrow Agent; b) cancel
the Manchi Original Purchase Note and deliver the same to the Limited
Escrow Agent; c) cancel the Xxxxx Original Purchase Note and deliver
the same to the Limited Escrow Agent; and d) endorse the Xxxxxx-Xxxxx
Promissory Note, with recourse, to the order of Liberty LGP and
Liberty Housing and deliver the same to the Limited Escrow Agent.
4. Prorations.
The parties agree that the sale of the Liberty LGP Interest, Liberty LGP Related
Property Interests, Liberty Housing Interest and Liberty Housing Related
Property Interests shall not be subject to any prorations except the annual
management fee paid to Liberty LGP, which management fee shall be prorated to
the date of Deposit Date. Each party agrees to pay their legal and all other
out-of-pocket expenses associated with the sale of said general and limited
partnership interests.
5. Conveyance of Liberty LGP Interest, Liberty LGP Related Property Interest,
Liberty Housing Interest and Liberty Housing Related Property Interests.
Liberty LGP shall convey its Liberty LGP Interest and LGP Related Property
Interests to Austintown Apartments by a limited warranty assignment, which
assignment shall be identical in form and content to the limited warranty
assignment set forth in Exhibit B to this Agreement and shall be executed and
delivered by Liberty LGP to the Limited Escrow Agent on or before the Deposit
Date.
Liberty Housing shall convey its Liberty Housing Interest and Liberty Housing
Related Property Interests to Austintown Apartments by a limited warranty
assignment, which assignment shall be identical in form and content to the
limited warranty assignment agreement set forth in Exhibit C to this Agreement
and shall be executed and delivered by Liberty LGP to the Limited Escrow Agent
on or before the Deposit Date.
6. Representation and Warranties of Liberty LGP.
Liberty LGP represents and warrants to Austintown Apartments that:
6.1 Liberty LGP is, and will remain during the term of this Agreement and
for three (3) years following the Deposit Date, duly organized,
validly existing and in good standing under the laws and jurisdiction
of its organization and, to the extent necessary, duly authorized and
qualified to transact any and all business contemplated by this
Agreement in the jurisdiction where the Project is located; and
6.2 Liberty LGP possesses and shall continue to possess all requisite
authority, power, licenses, permits, franchises and approvals
necessary to conduct its business and to execute, deliver and comply
with its obligations under this Agreement; and
6.3 Subject only to the occurrence of the conditions precedent set forth
in paragraphs 10 and 11 of this Agreement, the execution and delivery
of this Agreement and Liberty LGP's performance of and compliance with
the terms hereof in the manner contemplated by this Agreement will not
violate its
limited partnership agreement, any instrument governing its
operations, or any laws which violation could have a material adverse
effect upon the validity, performance and enforceability of any of the
terms of this Agreement applicable to Liberty LGP, and will not
constitute a default or event which, with notice or the lapse of time
or both, would constitute a default, under any contract, agreement, or
other instrument dated on or after December 27, 1995 and to which
Liberty LGP is a party and signatory, or which may be applicable to
any of it assets and of which Liberty LGP has actual knowledge; and
6.4 This Agreement constitutes a valid, legal and binding obligation of
Liberty LGP, enforceable in accordance with its terms; and
6.5 Liberty LGP owns legal and equitable title to the Liberty LGP Interest
and Liberty LGP Related Property Interests being conveyed to
Austintown Apartments under the terms of this Agreement, which legal
and equitable title is free and clear of any liens or encumbrances of
any type or nature; and
6.6 Liberty LGP has no obligation to sell or transfer the Liberty LGP
Interest and Liberty LGP Related Property Interests, except to
Austintown Apartments as provided in this Agreement; and
6.7 To the knowledge of Liberty LGP, there is no litigation or other
claims pending before any court, administrative or other governmental
body involving, or threatened against, the Liberty LGP Interest and
Liberty LGP Related Property Interests being conveyed to Austintown
Apartments under the terms of this Agreement
7. Liberty Housing represents and warrants to Austintown Apartments that:
7.1 Liberty Housing is, and will remain during the term of this Agreement
and for three (3) years following the Deposit Date, duly organized,
validly existing and in good standing under the laws and jurisdiction
of its organization; and
7.2 Liberty Housing possesses and shall continue to possess all requisite
authority, power, licenses, permits, franchises and approvals
necessary to conduct its business and to execute, deliver and comply
with its obligations under this Agreement; and
7.3 Subject only to the occurrence of the conditions precedent set forth
in paragraphs 10 and 11 of this Agreement, the execution and delivery
of this Agreement and Liberty Housing's performance of and compliance
with the terms hereof in the manner contemplated by this Agreement
will not violate its limited partnership agreement, any instrument
governing its operations, or any laws which violation could have a
material adverse effect upon the validity, performance and
enforceability of any of the terms of this Agreement applicable to
Liberty Housing, and will not constitute a default or event which,
with notice or the lapse of time or both, would constitute a default,
under any contract, agreement, or other instrument to which Liberty
Housing is a party or which may be applicable to any of it assets and
of which Liberty Housing has actual knowledge; and
7.4 This Agreement constitutes a valid, legal and binding obligation of
Liberty Housing, enforceable in accordance with its terms; and
7.5 Liberty Housing owns legal and equitable title to the Liberty Housing
Interest and Liberty Housing Related Property Interests being conveyed
to Austintown Apartments under the terms of this Agreement, which
legal and equitable title is free and clear of any liens or
encumbrances of any type or nature except for the lien of the Pledge
Agreements securing the Original Purchase Notes ; and
7.6 Liberty Housing has no obligation to sell or transfer its Liberty
Housing Interest and Liberty Housing Related Property Interests,
except to Austintown Apartments as provided in this Agreement; and
7.7 To the knowledge of Liberty Housing, there is no litigation or other
claims pending before any court, administrative or other governmental
body involving, or threatened against, the general partnership
interest being conveyed to Austintown Apartments under the terms of
this Agreement
8. Austintown Apartments represents and warrants to Liberty LGP and Liberty
Housing that:
8.1 Commencing November 1, 1999, Austintown Apartments will be duly
organized, validly existing and in good standing under the laws and
jurisdiction of its organization, and that at all times after November
1,
1999, and throughout the remaining term of this Agreement it shall
remain, to the extent necessary, duly authorized and qualified to
transact any and all business contemplated by this Agreement in the
jurisdiction where the Project is located; and
8.2 Austintown Apartments possesses and shall continue to possess all
requisite authority, power, licenses, permits, franchises and
approvals necessary to conduct its business and to execute, deliver
and comply with its obligations under this Agreement; and
8.3 Subject only to the occurrence or waiver of the conditions precedent
set forth in paragraphs 10 and 11 of this Agreement, the execution and
delivery of this Agreement and Austintown Apartments's performance of
and compliance with the terms hereof in the manner contemplated by
this Agreement will not violate its articles of incorporation,
by-laws, any instrument governing its operations, or any laws which
violation could have a material adverse effect upon the validity,
performance and enforceability of any of the terms of this Agreement
applicable to Austintown Apartments, and will not constitute a default
or event which, with notice or the lapse of time or both, would
constitute a default, under any contract, agreement, or other
instrument to which Austintown Apartments is a party or which may be
applicable to any of it assets; and
8.4 This Agreement constitutes a valid, legal and binding obligation of
Austintown Apartments, enforceable in accordance with its terms; and
8.5 Austintown Apartments understands that the interests being conveyed to
it under the terms of paragraphs 1 and 2 of this Agreement have not
been registered or qualified under the Securities Act of 1933 (the
"1933 Act") or the securities laws of any state, and that neither all
nor any part of said interests may be resold unless said sale is
registered under the 1933 Act and such laws or unless an exemption
from registration or qualification is available; and
8.6 Austintown Apartments, by virtue of its ownership and management by
Messrs. Manchi and Xxxxx, considers itself a substantial,
sophisticated investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks associated with acquiring the Liberty LGP Interest,
Liberty LGP Related Property Interests, Liberty Housing Interest and
Liberty Housing Related Property Interests; and
8.7 Austintown Apartments is familiar with and has access to all material
information concerning the Project, the past, current and future
operation of the Project; and
8.8 Austin Incorporated is not acquiring the Liberty LGP Interest, Liberty
LGP Related Property Interests, Liberty Housing Interest or the
Liberty Housing Related Property Interests with a view to distribution
in violation of the 1933 Act. Neither Austintown Apartments nor anyone
acting on its behalf has offered, transferred, pledged, sold or
otherwise disposed of the Liberty LGP Interest, Liberty LGP Related
Property Interests, Liberty Housing Interest or Liberty Housing
Related Property Interests being conveyed to it, any interest in the
Liberty LGP Interest, Liberty LGP Related Property Interests, Liberty
Housing Interest or Liberty Housing Related Property Interests or any
other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Liberty LGP Interest,
Liberty LGP Related Property Interests, Liberty Housing Interest or
the Liberty Housing Related Property Interests, any interest in the
Liberty LGP Interest, Liberty LGP Related Property Interests, Liberty
Housing Interest or Liberty Housing Related Property Interests or any
other similar security from, or otherwise approached or negotiated
with respect to the Liberty LGP Interest, Liberty LGP Related Property
Interests, Liberty Housing Interests, Liberty Housing Related Property
Interests, any interest in the Liberty LGP Interest, Liberty LGP
Related Property Interests, Liberty Housing Interest or Liberty
Housing Related Property Interests or any other similar security with,
any person in any manner, or made any general solicitation by means of
general advertising or in any other manner , or taken any other action
any of which would constitute a distribution of the Liberty LGP
Interest, Liberty LGP Related Property Interests, Liberty Housing
Interest or Liberty Housing Related Property Interests under the 1933
Act or which would render the disposition of the Liberty LGP Interest,
Liberty LGP Related Property Interests, Liberty Housing Interest or
Liberty Housing Related Property Interests a violation of section 5 of
the 1933 Act or require registration pursuant thereto, nor will it
act, nor has it authorized or will authorize any person to act, in
such manner with respect to the Liberty LGP Interest, Liberty LGP
Related Property Interests, Liberty Housing Interest or Liberty
Housing Related Property Interests.
9. Representation and Warranties of Messrs. Manchi and Xxxxx.
Messrs. Manchi and Xxxxx, individually and jointly, represent to Liberty LGP and
Liberty Housing that:
9.1 That they possess and shall continue to possess all requisite
authority and power necessary to comply with their obligations set
forth in paragraphs 3.1 and 13 of this Agreement; and
9.2 Subject to the occurrence of the conditions set forth in paragraphs 10
and 11 of this Agreement, the compliance with their obligations set
forth in paragraphs 3.1 and 13 of this Agreement will not constitute a
default or event which, with notice or the lapse of time or both,
would constitute a default, under any contract, agreement, or other
instrument to which either of them is a party or which may be
applicable to any of their assets; and
9.3 Paragraphs 3.1 and the applicable provisions of paragraph 13 of this
Agreement constitutes a valid, legal and binding obligation of each of
them, enforceable in accordance with the terms set forth in said
paragraph.
10. Condition Precedent - Departmental Approval.
The parties acknowledge that the transfer of the Liberty LGP Interest and
Liberty Housing Interest can not be effectuated without the prior approval of
the United States Department of Housing and Urban Development's (the
"Department"). Immediately upon the execution of this Agreement by all parties,
and upon the parties receipt of all necessary consents by the Original Limited
Partners as provided for in subparagraph 11 of this Agreement, Austintown
Apartments, at its sole cost and expense, shall prepare and file with the
Department's Cleveland Area Office all documents required by the Department
regarding its approval of the transfer of the Liberty LGP Interest and Liberty
Housing Interest; and Austintown Apartments shall use its best efforts to obtain
the Department's approval concerning the transfer of Liberty LGP Interest and
Liberty Housing Interest. If the parties can not obtain the Department's
approval concerning the transfer of either the Liberty LGP Interest or the
Liberty Housing Interest within six (6) months following receipt of all
necessary consents by the Original Limited Partners as provided for in paragraph
11 of this Agreement, then this Agreement shall automatically become null and
void and no party shall have any further rights or duties hereunder.
11. Condition Precedent - Original Limited Partner Approval.
The parties acknowledge that the terms and conditions set forth in the Pledge
Agreements require that the transfer of the Liberty Housing Interest and Liberty
Related Property Interests as contemplated by this Agreement receive the
unanimous consent of the Original Limited Partners. Immediately upon all
parties' execution of this Agreement, the parties shall fully cooperate with
each other and use their best efforts to obtain said unanimous consent of the
Original Limited Partners. If the parties can not obtain unanimous consent of
the Original Limited Partners to the transfer of the Liberty Housing Interest
and Liberty Housing Related Property Interests as contemplated by this Agreement
on or before April 1, 2000, then this Agreement shall automatically become null
and void and no party shall have any further rights or duties hereunder.
12. Escrow Deposit and Disbursement.
12.1 The parties hereby appoint Letson, Griffith, Xxxxxxx, Xxxxxxx &
Xxxxxxxxx Co., L.P.A., 000 Xxxxx Xxxx Xxxxxx, Xxxxxx, Xxxx, Facsimile
Number 000-000-0000, E-Mail Number (the "Limited Escrow Agent") as the
escrow agent to collect and disburse the closing deposits of the
parties in accordance with the terms set forth herein. The parties
acknowledge that the Limited Escrow Agent has acted as legal counsel
for Messrs. Manachi and Xxxxx and Austintown Apartments concerning
the purchase of the Liberty LGP Interest, Liberty LGP Related Property
Interests, Liberty Housing Interest and Liberty Housing Related
Property Interests, and the parties hereby waive any conflict of
interest that may arise because the Limited Escrow Agent acted as such
legal counsel and is the party responsible for collecting and
disbursing the deposits of the parties. Messrs. Manchi and Xxxxx shall
be solely responsible for payment of all fees charged by Letson,
Griffith, Xxxxxxx & Xxxxxxxxx Co., L.P.A. in connection with its
duties as Limited Escrow Agent. The parties agree that the Limited
Escrow Agent shall have the right to select any legal counsel to
defend any action brought against it by any party to this Agreement
concerning any matter related to this Agreement. The parties, jointly
and severally, agree to apy all legal fees and related expenses
charged by the counsel so selected by the Limited Escrow Agent.
12.2 The Limited Escrow Agent agrees to hold and disburse the deposits of
all parties in accordance with the terms set forth herein.
12.3 On or before the fifth business day following the occurrence of the
condition precedent referred to in paragraph 10 of this Agreement (the
"Deposit Date") all parties shall make their respective deposits with
the Limited Escrow Agent.
12.4 If the Limited Escrow Agent shall first have received the deposits of
all parties on or before the Deposit Date, then the Limited Escrow
Agent shall distribute: a) to Liberty LGP and Liberty Housing the
following: i) the sum of One Hundred Twenty Five Thousand Dollars
($125,000.00); ii) the cancelled Manchi Original Purchase Note; iii)
the cancelled Xxxxx Original Purchase Note; and iv) the Xxxxxx-Xxxxx
Promissory Note; and b) to Austintown Apartments the limited warranty
assignment of the Liberty LGP Interest, Liberty LGP Related Property
Interests, Liberty Housing Interest and Liberty Housing Related
Property Interests deposited by Liberty LGP and Liberty Housing.
12.5 If The Limited Escrow Agent has not received the deposit of all
parties on or before the Deposit Date, then the Limited Escrow Agent
shall immediately send written notice to all parties specifying which
party or parties have failed to make the required deposits and,
thereafter, the Limited Escrow Agent shall continue to hold all
deposits until such time as it has received written notice from any
party who has made its required deposit instructing the Limited Escrow
Agent as to the disposition of said complying party's deposits. Upon
receipt of said written notice, the Limited Escrow Agent shall
immediately comply with the instructions set forth in the written
notice received by it and, thereafter, shall give written notice to
all other parties to this Agreement as to the action undertaken by the
Limited Escrow Agent.
13. Release and Covenant Not To Xxx.
In consideration of the covenants and agreements set forth herein, effective
upon the receipt and disbursement of all deposits as set forth in paragraph 12.4
of this Agreement, Liberty LGP and Liberty Housing do hereby release, acquit and
forever discharge Mr. Manchi, Xx. Xxxxx, Austintown Apartments and Austintown
Associates, their related management company, and all other agents, attorneys,
affiliates, heirs, executors, personal representatives, successors and assigns
of and from any and all charges, claims, demands, damages, lawsuits, actions or
causes of action, of any kind or description whatsoever, whether arising out of
tort, contract or otherwise, in law or in equity, excepting only payment of the
management fee proration pursuant to paragraph 4 of this Agreement, which
Liberty LGP and Liberty Housing now have, have had or may hereafter have against
Mr. Manchi, Xx. Xxxxx, Austintown Apartments, Austintown Associates, their
related management company, and all other agents, attorneys, affiliates, heirs,
executors, personal representatives, successors and assigns, resulting from any
matter whatsoever arising in connection with the operation of the Project,
management of the Project by a related management company and any self-dealing
between the related management company, Mr. Manchi, Xx. Xxxxx and Austintown
Associates, the distribution or failure to distribute surplus cash or any other
property of Austintown Associates, including all past, present and future
consequences, losses, negotiations, injuries, expenses, including reasonable
attorneys' fees, and damages of any kind, nature or description relating thereto
from January 1, 1960, to December 31, 2002.
In consideration of the covenants and agreements set forth herein, effective
upon the receipt and disbursement of all deposits as set forth in paragraph 12.4
of this Agreement, Mr. Manchi, Xx. Xxxxx and Austintown Apartments do hereby
release, acquit and forever discharge Liberty LGP and Liberty Housing, their
agents, attorneys, affiliates,
successors and assigns of and from any and all charges, claims, demands,
damages, lawsuits, actions or causes of action, of any kind or description
whatsoever, whether arising out of tort, contract or otherwise, in law or in
equity, which Mr. Manchi, Xx. Xxxxx or Austintown Apartments, their agents,
attorneys, affiliates, heirs, executors, personal representatives, successors
and assigns, now have, have had or may hereafter have against Liberty LGP or
Liberty Housing, their agents, attorneys, affiliates, successors and assigns,
resulting from any matter whatsoever arising in connection with the operation of
the Project, management of the Project, distribution or failure to distribute
surplus cash or any other property of the Project, and re-syndication of the
original limited and general partnership interests of Austintown Associates,
including all past, present and future consequences, losses, negotiations,
injuries, expenses, including reasonable attorneys' fees, and damages of any
kind, nature or description relating thereto from January 1, 1960, to December
31, 2002.
In consideration of the covenants and agreements set forth herein, effective
upon the receipt and disbursement of all deposits as set forth in paragraph 12.4
of this Agreement, Liberty LGP and Liberty Housing do hereby release, acquit and
forever discharge the accounting firm of Xxxx-Xxxxxxx & Co., Cleveland, Ohio and
Xx. Xxxx Xxx Xxxxxxxxx, a partner in said accounting firm, their successors and
assigns, of and from any and all charges, claims, demands, damages, lawsuits,
actions or causes of action, of any kind or description whatsoever, whether
arising out of tort, contract or otherwise, in law or in equity, which Liberty
LGP and Liberty Housing, their agents, attorneys, affiliates, successors and
assigns, now have, have had or may hereafter have against Xxxx-Xxxxxxx & Co. and
Xx. Xxxx Xxx Xxxxxxxxx, their successors and assigns, resulting from any matter
whatsoever arising in connection with the preparation of audited financial
statements concerning the Project, including all past, present and future
consequences, losses, negotiations, injuries, expenses, including reasonable
attorneys' fees, and damages of any kind, nature or description relating thereto
from January 1, 1960, to December 21, 2002.
14. Original Purchase Notes.
The parties acknowledge that, except for the cancelled Manchi Original Purchase
Note and Xxxxx Original Purchase Note, all or a portion of the remaining
Original Purchase Notes may remain in full force and effect after the
consummation of the transaction that is the subject of this Agreement, and that
the Liberty Housing Interest and Liberty Housing Related Property Interest are
being acquired by Austintown Apartments subject to the Pledge Agreements that
secure repayment of the Original Purchase Notes. The parties further acknowledge
and agree that the Original Purchase Notes are non-recourse obligations and the
execution of this Agreement and performance of the terms thereof by the parties
does not, and is not intended to, impose any liability to any holder of any
Original Purchase Note or any third party upon either Austintown Apartments, Mr.
Manchi or Xx. Xxxxx for the non-payment of any principal, interest or other
amounts owing under the terms of the Original Purchase Notes. Subject to the
foregoing limitation of liability, Austintown Apartments agrees to use its best
efforts to insure the timely payment of principal, interest and other amounts
owing under the terms of the Original Purchase Notes.
15. Miscellaneous.
15.1 No amendment or modification of this Agreement shall be valid unless
evidenced by an instrument, in writing, signed by all the parties.
15.2 If any one or more of the covenants, agreements, provisions, or terms
of this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
15.3 Notices hereunder shall be in writing, and may be delivered by hand,
first class, registered or certified mail, express delivery, facsimile
or other telecommunication device capable of confirmation of receipt,
addressed to the parties at the addresses first set forth above, or at
such other address as each party may furnish to the other parties in
writing.
15.4 This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Ohio.
15.5 This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but all of which together
shall constitute one and the same instrument.
15.6 All representations and warranties set forth in this Agreement shall
remain in full force and effect until the fourth anniversary of the
Deposit Date, and thereafter said representations and warranties shall
become null and void.
In Witness Whereof, the parties have duly executed and delivered this Agreement
as of the day and year first set forth above.
SIGNATURE PAGE
AUSTINTOWN ASSOCIATES
AGREEMENT TO PURCHASE AND SELL PARTNERSHIP INTERESTS
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Austintown Apartments LLC
By: /s/ Xxxxxx X. Xxxxx
Managing Member
Liberty LGP Limited Partnership
By: Liberty Housing Corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
President
Liberty Housing Corporation
Liberty Housing Partners Limited Partnership
By: TNG Properties, Inc, General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
President
TNG Properties, Inc.
Letson, Griffith, Xxxxxxx, Xxxxxxx & Xxxxxxxxx Co., L.P.A.
By:_______________________________
General Partner
EXHIBIT A
AGREEMENT TO PURCHASE AND SELL PARTNERSHIP INTERESTS
PURCHASE MONEY NOTE FORM
DATE: [INSERT DATE OF ESCROW DEPOSIT]
CITY: YOUNGSTOWN
STATE: OHIO
1. BORROWER'S PROMISE TO PAY
For value received, we promise to pay the sum of One Hundred Twenty Five
Thousand Dollars ($125,000.00) (this amount is called "principal"), plus
interest, pursuant to section 2 hereof, to the order of the Lender. The Lender
is [insert Austintown Apartments LLC]. We understand that the Lender may
transfer this Note. The Lender or anyone who takes this Note by transfer and who
is entitled to receive payments under this Note is called the "Note Holder".
2. INTEREST
Interest will be charged on unpaid principal until the full amount of principal
has been paid. We will pay interest at an annual rate of nine percent (9.0%),
which interest shall be calculated on the basis of a three hundred sixty-five
(365) day year.
The interest rate required by this section 2 is the rate we will pay both before
and after any default described in Section 6(B) of this Note.
3. PAYMENTS
We will make a payment of principal and interest in the amount of Eighty Six
Thousand Two Hundred and Fifty Dollars ($86,250.00) on [insert first anniversary
date of escrow deposit date], and we will make a final payment of principal and
interest in the amount of Fifty Four Thousand Five Hundred Dollars ($54,500.00)
on [insert second anniversary date of escrow deposit date].
Each payment will be applied to interest before principal. If, on [insert second
anniversary date of escrow deposit date], we still owe any amounts under this
Note, we will pay those amounts in full on that date, which date is called the
"maturity date".
We will make our payments at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, or
at a different place if required by the Note Holder.
4. BORROWER'S RIGHT TO PREPAY
A payment of principal only is known as a "Prepayment". When we make a
Prepayment, we will tell the Note Holder in writing that we are doing so. We may
make a full prepayment or partial prepayments without paying any
prepayment charge. The Note Holder will use all of our prepayments to reduce the
amount of principal that we owe under this Note. If we make a partial
prepayment, there will be no changes in the due date or in the amount of our
first annual payment unless the Note Holder agrees in writing to those changes.
All prepayments shall be applied first to accrued interest and then to
principal.
5. LOAN CHARGES
If a law, which applies to this loan and which sets maximum loan charges, is
finally interpreted so that the interest or other loan charges collected or to
be collected in connection with this loan exceed the permitted limits, then: (I)
any such loan charge shall be reduced by the amount necessary to reduce the
charge to the permitted limit; and (II) any sums already collected from us which
exceeded permitted limits will be refunded to us. The Note Holder may choose to
make this refund by reducing the principal we owe under this Note or by making a
direct payment to us.
6. BORROWER'S FAILURE TO PAY AS REQUIRED
(A) Late Charges for Overdue Payments
If the Note Holder has not received the full amount of any annual payment by the
end of fifteen (15) calendar days after the date it is due, we will pay a late
charge to the Note Holder. The amount of the charge will be three percent (3.0%)
of our overdue payment of principal and/or interest. We will pay this late
charge promptly but only once on each late payment.
(B) Default
If I do not pay the full amount of each annual payment on the date it is due, we
will be in default.
(C) Notice of Default
If we are in default, the Note Holder may send us a written notice telling us
that if we do not pay the overdue amount by a certain date, the Note Holder may
require us to pay immediately the full amount of principal which has not been
paid and all the interest that we owe on that amount. That date must be at least
thirty (30) days after the date on which the notice is delivered or mailed to
us.
(D) No Waiver By Note Holder
Even if, at a time when we are in default, the Note Holder does not require us
to pay immediately in full as described above, the Note Holder will still have
the right to do so if we are in default at a later time.
(E) Payment of Note Holder's Costs and Expenses
If the Note Holder has required us to pay immediately in full as described
above, the Note Holder will have the right to be paid back by us for all of its
costs and expenses in enforcing this Note to the extent not prohibited by
applicable law. Those expenses include, for example, reasonable attorneys' fees.
7. GIVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given
to us under this Note will be given by delivering it or by mailing it by first
class mail to us at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000.
Any notice that must be given to the Note Holder under this Note will be given
by mailing it by first class mail to the Note Holder at the address stated in
Section 3(A) above or at a different address if we are given a notice of that
different address.
8. OBLIGATIONS OF PERSONS UNDER THIS NOTE
If more than one person signs this Note, each person is fully and personally
obligated to keep all of the promises made in this Note, including the promise
to pay the full amount owed. Any person who is a guarantor, surety or endorser
of this Note is also obligated to do these things. Any person who takes over
these obligations, including the obligations of a guarantor, surety or endorser
of this Note, is also obligated to keep all of the promises made in this Note.
The Note Holder may enforce its rights under this Note against each person
individually or against all of us together. This means that any one of us may be
required to pay all of the amounts owed under this Note.
9. WAIVERS
We and any other person who has obligations under this Note waive the rights of
presentment and notice of dishonor. "Presentment" means the right to require the
Note Holder to demand payment of amounts due. "Notice of Dishonor" means the
right to require the Note Holder to give notice to other persons that amounts
due have not been paid.
10. GOVERNING LAW
The Note Holder and we agree that this Note and the rights and obligations of
all the parties under this Note shall be governed by and construed under the
applicable laws of the State of Ohio.
WITNESS THE HAND(S) AND SEALS(S) OF THE UNDERSIGNED.
--------------------------------------
Borrower, Xxxxx X. Xxxxxx
---------------------------------------
Borrower, Xxxxxx X. Xxxxx
EXHIBIT B
AGREEMENT TO PURCHASE AND SELL PARTNERSHIP INTERESTS
ASSIGNMENT FORM
This Assignment is made as of the [insert escrow deposit date], by Liberty LGP
Limited Partnership, a limited partnership organized and validly existing under
the laws of the Commonwealth of Massachusetts whose primary business address is
000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Assignor").
For good and valuable consideration, the receipt and sufficiency of which
consideration is acknowledged by the Assignor, the Assignor does hereby grant,
transfer and assign to Austintown Apartments LLC, a limited liability
corporation organized and existing under the laws of the State of Ohio whose
primary business address is 1050 Compass West, Xxxxxxxxxx, Xxxx 00000 all of the
following interests, to wit: a) one hundred percent (100.0%) of the Assignor's
general partnership interest in and to Austintown Associates, a limited
partnership organized and existing under the laws of the State of Ohio whose
primary place of business is 1050 Compass West, Youngstown, Ohio; b) all right,
title and interest, if any, that the Assignor has had, currently has, and may
have in the future, in and to Austintown Associates, including, without
limitation all right, title and interest in and to any and all real, personal
and intangible property rights and interests of, in and to Austintown
Associates.
Wherefore, the Assignor has caused this Assignment to be executed and delivered
as of the day and year first set forth above.
[SIGNATURE BLOCK]
[NOTARY BLOCK]
EXHIBIT C
AGREEMENT TO PURCHASE AND SELL PARTNERSHIP INTERESTS
ASSIGNMENT FORM
This Assignment is made as of the [insert escrow deposit date], by Liberty
Housing Partners Limited Partnership, a limited partnership organized and
validly existing under the laws of the Commonwealth of Massachusetts whose
primary business address is 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Assignor").
For good and valuable consideration, the receipt and sufficiency of which
consideration is acknowledged by the Assignor, the Assignor does hereby grant,
transfer and assign to Austintown Apartments LLC, a limited liability
corporation organized and existing under the laws of the State of Ohio whose
primary business address is 1050 Compass West, Xxxxxxxxxx, Xxxx 00000 all of the
following interests, to wit: a) one hundred percent (100.0%) of the Assignor's
limited partnership interest in and to Austintown Associates, a limited
partnership organized and existing under the laws of the State of Ohio whose
primary place of business is 1050 Compass West, Youngstown, Ohio; b) all right,
title and interest, if any, that the Assignor has had, currently has, and may
have in the future, in and to Austintown Associates, including, without
limitation all right, title and interest in and to any and all real, personal
and intangible property rights and interests of, in and to Austintown
Associates.
Wherefore, the Assignor has caused this Assignment to be executed and delivered
as of the day and year first set forth above.
[SIGNATURE BLOCK]
[NOTARY BLOCK]
