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MANAGING THE UNEXPECTED: MANAGING THE UNEXPECTED: WORKOUTS, LIABILITY, WORKOUTS, LIABILITY,

BANKRUPTCY AND MOREBANKRUPTCY AND MORE

By: Deborah ThaxterNixon Peabody LLP

IPED – San Diego, CAApril 26-27, 2007

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LITIGATION ANALYSIS IS CRITICAL TO LITIGATION ANALYSIS IS CRITICAL TO YOUR WORKOUT PLANYOUR WORKOUT 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

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REVIEW PROJECT DOCUMENTSREVIEW PROJECT DOCUMENTS

• Removal of property manager• Removal of GP

– Push aside or forfeiture– Cure period– Valuation of GP interest– Deferred Developer Fees

KEY PARTNERSHIP PROVISIONS

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• Repurchase• GP Development and Operating Deficit Obligations• GP and Developer Guaranties• Adjusters• Venue and Jurisdiction

REVIEW PROJECT DOCUMENTSREVIEW PROJECT DOCUMENTS

KEY PARTNERSHIP PROVISIONS (CONT.)

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• Events of Default and Cure Period• Foreclosure Procedure• Guaranties• Consent required for change in General Partner and

property manager

KEY LOAN PROVISIONS

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• Problems – GP Affiliated General Contractor with multiple projects– Delays and Cost Overruns– Failure to meet place in service date and loss of credits

MARSHALL YOUR FORCES AND MARSHALL YOUR FORCES AND TAKE CHARGETAKE CHARGE

AT CONSTRUCTION PHASE

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• 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

MARSHALL YOUR FORCES AND MARSHALL YOUR FORCES AND TAKE CHARGETAKE CHARGE

AT CONSTRUCTION PHASE (CONT.)

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• 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

MARSHALL YOUR FORCES AND MARSHALL YOUR FORCES AND TAKE CHARGETAKE CHARGE

AT CONSTRUCTION PHASE (CONT.)

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• 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

MARSHALL YOUR FORCES AND MARSHALL YOUR FORCES AND TAKE CHARGETAKE CHARGE

AFTER LEASE-UP

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• Protections– Strong key partnership provisions– Properly documented advances– Properly documented demands for corrective behavior– Workout agreement and escrow of removal documents

MARSHALL YOUR FORCES AND MARSHALL YOUR FORCES AND TAKE CHARGETAKE CHARGE

AFTER LEASE-UP (CONT.)

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• Remedial Actions– Replace property manager

Voluntary vs. involuntary removal

– Remove and Replace GP 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

MARSHALL YOUR FORCES AND MARSHALL YOUR FORCES AND TAKE CHARGETAKE CHARGE

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CHOOSE YOUR FORUM AND PICK CHOOSE YOUR FORUM AND PICK YOUR TIMEYOUR 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

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CHOOSE YOUR FORUM AND PICK CHOOSE YOUR FORUM AND PICK YOUR TIMEYOUR 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

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• Upper tier investor pressure– Greater investor scrutiny

– Recent investor lawsuits

– Use of upper tier reserves

CHOOSE YOUR FORUM AND PICK CHOOSE YOUR FORUM AND PICK YOUR TIMEYOUR TIME

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• 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)

LITIGATION IS HERE TO STAY LITIGATION IS HERE TO STAY

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– 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

LITIGATION IS HERE TO STAYLITIGATION IS HERE TO STAY

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NEGOTIATING A WORK-OUT NEGOTIATING A WORK-OUT AGREEMENTAGREEMENT

• 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

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– 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

NEGOTIATING A WORK-OUT NEGOTIATING A WORK-OUT AGREEMENT AGREEMENT (Cont’d)(Cont’d)

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– Forfeiture of fees

– Penalty payments

– Cross-collateralization and cross-default provisions

• Bankruptcy Proof Provisions

• Venue and Jurisdiction

NEGOTIATING A WORK-OUT NEGOTIATING A WORK-OUT AGREEMENT (Cont’d)AGREEMENT (Cont’d)

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• 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

NEGOTIATING A WORK-OUT NEGOTIATING A WORK-OUT AGREEMENT (Cont’d)AGREEMENT (Cont’d)

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