WHEN ALL ELSE FAILS LITIGATION GENERAL PARTNER REMOVALS

WHEN ALL ELSE FAILS … LITIGATION, GENERAL PARTNER REMOVALS, WORKOUTS By: Deborah Thaxter Nixon Peabody LLP IPED – Boston, MA October 11 -12, 2007 1

LITIGATION ANALYSIS IS CRITICAL TO YOUR WORKOUT OR DISPOSITION PLAN (The word “Sues” is not a forbidden four letter word) $#!$#! • Know your rights and your leverage • Marshall your troops at the border • Choose your forum – If you don’t, they will • You cannot escape – litigation is everywhere 2

WHEN THE LP AND GP HAVE DIFFERENT DISPOSITION STRATEGIES WHEN THE LP WANTS TO SELL AND GP SAYS NO WAY • Specific Exit Provision – Timing issue – Right of First Refusal 3

WHEN THE LP WANTS TO SELL AND GP SAYS NO WAY (cont. ) • Dissolution Provisions – State Law Requirements – Impact on the Waterfall – What actually happens after dissolution 4

WHEN THE LP WANTS TO SELL AND GP SAYS NO WAY (Cont. ) • GP Removal Provisions – With or Without Cause – Fiduciary Duties – Forfeiture vs Push Aside – Management Agent Removal 5

WHEN THE LP WANTS TO SELL AND GP SAYS NO WAY (Cont. ) • LP Right to Sell or Assign its LP Interest – Threat of Unfriendly Third Party – Assignment of Economic Benefits – 13 to 18 Year Window 6

WHEN THE LP WANTS TO SELL AND GP SAYS NO WAY (Cont. ) • LP Leverage Based on Required Consent for Refinancing – Debt/Equity Conflict – Negotiated Exit Language – Prepayment Penalty Payback 7

WHEN THE GP WANTS TO SELL AND THE LP PREFERS STATUS QUO • Unilateral Transfers • Timing and Recapture Bonds • Disclosure Obligations – Fiduciary duties? – Immediate flip in higher value • Resyndications 8

WHEN THE UPPER TIER INVESTORS BECOME RESTLESS • Public Funds – Books and Records Request – Threats to Proxy Contests • Corporate Funds – Recapture Risks – Take Over of GP Syndicator Role – Self-Dealing Concerns 9

ARE YOU READY FOR A FIGHT? • Where can the lawsuit be brought? • Should you be first to the Courthouse? • Do you own the moral high ground? • Will it help or hurt your exit strategy? 10

REVIEW PROJECT DOCUMENTS KEY PARTNERSHIP PROVISIONS • Removal of property manager • Removal of GP – – Push aside or forfeiture Cure period Valuation of GP interest Deferred Developer Fees 11

REVIEW PROJECT DOCUMENTS KEY PARTNERSHIP PROVISIONS (CONT. ) • • • Repurchase GP Development and Operating Deficit Obligations GP and Developer Guaranties Adjusters Venue and Jurisdiction 12

KEY LOAN PROVISIONS • • Events of Default and Cure Period Foreclosure Procedure Guaranties Consent required for change in General Partner and property manager 13

MARSHALL YOUR FORCES AND TAKE CHARGE AT CONSTRUCTION PHASE • Problems – GP Affiliated General Contractor with multiple projects – Delays and Cost Overruns – Failure to meet place in service date and loss of credits 14

MARSHALL YOUR FORCES AND TAKE CHARGE AT CONSTRUCTION PHASE (CONT. ) • Protections – – – Construction contract terminates with removal of affiliated G. P. Payment and performance bonds Subguard insurance products Don’t leave construction draw monitoring to lender Site visits 15

MARSHALL YOUR FORCES AND TAKE CHARGE AT CONSTRUCTION PHASE (CONT. ) • Remedial Actions – – Exercise rights under payment and/or performance bonds Remove and replace GP Terminate construction contract Work with local tax credit agencies to swap or secure additional credits – Repurchase demand 16

MARSHALL YOUR FORCES AND TAKE CHARGE AFTER LEASE-UP • Problems – – – – Low occupancy, negative cash flow and growing payables Failure to pay debt service or property taxes Deferred maintenance – low REAC Scores The “gap” between construction and permanent loans Misappropriation or co-mingling of funds Compliance issues Failure to provide yearly audited financials 17

MARSHALL YOUR FORCES AND TAKE CHARGE AFTER LEASE-UP (CONT. ) • Protections – – Strong key partnership provisions Properly documented advances Properly documented demands for corrective behavior Workout agreement and escrow of removal documents 18

MARSHALL YOUR FORCES AND TAKE CHARGE • Remedial Actions – Replace property manager w Voluntary vs. involuntary removal – Remove and Replace GP w w w Has GP shown willingness to work with LP? What are the grounds for an involuntary removal? Push aside v. complete removal Can the GP interest be sold to a new third party GP? 2530 red flag risk and who wants the liability? – Send monetary demands to GP and Guarantors 19

CHOOSE YOUR FORUM AND PICK YOUR TIME • Location of your business vs. location of property or adversary – State vs. Federal – Use of Declaratory Judgment to pick forum – Requests for injunctive relief – who goes first? • Are the defaults substantial? – Misappropriation of funds – Risk of loss of credits due to failure to meet placed in service date 20

CHOOSE YOUR FORUM AND PICK YOUR TIME – Risk of Foreclosure – Federal and state regulatory problems – Failure to provide financial information • Can your adversary afford to litigate • GP/Developer claims – – Debt/equity conflict Poor underwriting vs. poor management Promises made to GP to step into existing project Failure to fund equity advances 21

CHOOSE YOUR FORUM AND PICK YOUR TIME • Upper tier investor pressure – Greater investor scrutiny – Recent investor lawsuits – Use of upper tier reserves 22

LITIGATION IS HERE TO STAY • City vs. Property Partnerships – Administrative proceeding to shut down property as a public nuisance – Court proceeding by sheriff to declare property a public nuisance and to require extensive security improvements • GP/GC vs. LP Sponsor/Syndicator – Termination of construction contracts and lien filings – Removals of GP and/or property manager – Bankruptcy litigation over effect of removal of GP (358 B. R. 24) 23

LITIGATION IS HERE TO STAY – Third party suits against agencies, including against tax credit authority that granted tax credit swap – Recovery of and defense against monetary demands against GPs and Guarantors • Upper tier institutional investors vs. Syndicators – Books and Records – Removals of Syndicators as General Partners – Exit strategy disputes over consents, back end splits and recapture 24

NEGOTIATING A WORK-OUT AGREEMENT • Does GP stay or go? – How value GP interest? – Does GP keep residual interest as SLP? • Who Pays What to Whom – GP fees – GP loans – amount and priority 25

NEGOTIATING A WORK-OUT AGREEMENT (Cont’d) – Capital contribution advances vs LP Loans – Tax consequences of canceling developers fees – Cash payments • Remedy for Defaults under Workout Agreement – Signed assignment and partnership amendment documents in escrow 26

NEGOTIATING A WORK-OUT AGREEMENT (Cont’d) – Forfeiture of fees – Penalty payments – Cross-collateralization and cross-default provisions • Bankruptcy Proof Provisions • Venue and Jurisdiction 27

NEGOTIATING A WORK-OUT AGREEMENT (Cont’d) • Release – General or limited in scope – Time period covered – Tax compliance carve-out – Effect on guaranty of non-released party – Representations as to liens, payables and claims B 10533214. 1 28