EAHDC ENCORE AFFORDABLE HOUSING DEVELOPMENT CORP. A non-profit Entity of The Housing Authority of the City of Tampa, Florida Board of Directors Meeting October 15, 2014
Meeting Agenda Encore Affordable Housing Development Corp. October 15, 2014 I. CALL TO ORDER II. MINUTES FROM THE PREVIOUS MEETING January 16, 2013 III. NEW BUSINESS Presentation of Resolution No. 2014-0004-EAHDC Resolution No. 2014-0004-EAHDC A RESOLUTION TO APPROVE THE ABOVE-REFERENCED RESOLUTION IN ORDER TO AUTHORIZE THE EXECUTION OF ASSIGNMENT AND ASSUMPTION OF INVESTOR PARTNER INTERESTS AND RELATED DOCUMENTS FOR ELLA AT ENCORE, LP. IV. ADJOURNMENT
I. CALL TO ORDER Minutes of the Regular Meeting of the Board of Directors of the Encore Affordable Housing Development Corporation January 16, 2013 President Harvey called the meeting of the Encore Affordable Housing Development Corporation Board of Directors to order at 11:03am. Other Directors in attendance were Ben Wacksman, Rubin E. Padgett, James Cloar, Manny Alvarez, Billi Johnson-Griffin, and legal counsel, Ricardo Gilmore. II. APPROVAL OF MINUTES A motion to approve the Minutes from the October 17, 2012 Board Meeting was made by Director Alvarez and seconded by Director Wacksman: Director Wacksman Director Padgett Director Cloar Director Alvarez Director Harvey Director Johnson-Griffin Yes Yes Yes Yes Yes Yes III. NEW BUSINESS Annual meeting to approve the election of Officers for President and Vice President. President Harvey passed the meeting over to Attorney Gilmore to conduct the election. Attorney Gilmore opened the floor for President of the Board. Motion to re-elect the present President Hazel Harvey for the position of President of the Board was made by Director Wacksman and seconded by Director Alvarez. Attorney Gilmore asked if there were any more nominations and there were none. President Harvey is re-elected as President. Floor was opened by Attorney Gilmore for the Vice-President election. Motion to re-elect the present Vice President Robert Shimberg for the position of Vice President of the Board was made by Director Cloar and seconded by Director Johnson-Griffin. Attorney Gilmore asked if there were any more nominations and there were none. Vice President Shimberg is re-elected as Vice President. III. ADJOURNMENT There being no further business to come before this Board, a motion to adjourn was made by Director Alvarez and seconded by Director Johnson-Griffin, Dr. Harvey adjourned the meeting at 11:04 am. Approved this 15th Day of October 2014 Hazel Harvey, President Jerome D. Ryans, Secretary
Resolution 2014-0004-EAHDC
ENCORE AFFORDABLE HOUSING CORPORATION DEVELOPMENT CORPORATION RESOLUTION SUMMARY SHEET 1. Describe the action requested of the Board of Directors Re.: Resolution Number: 2014-0004-EAHDC The Board of Directors is requested to approve the above-referenced resolution in order to authorize the execution of assignment and assumption of investor partner interests and related documents for Ella at Encore, LP 2. Who is making request: A. Entity: ENCORE AFFORDABLE HOUSING DEVELOPMENT CORPORATION B. Project: Ella Assignment of limited partner Interest C. Originator: LEROY MOORE 3. Cost Estimate (if applicable): $ NA Narrative: The Board of Directors is requested to approve the above-referenced resolution in order to authorize the execution of assignment and assumption of investor partner interests and related documents for Ella at Encore, LP Attachments (if applicable): HUD Notice of Transfer Ella EAHDC Board Resolution 0004 Assignment Assumption and Fourth Amendment Agreement Ella Acknowledgement, Consent and Agreement Certificate
ENCORE AFFORDABLE HOUISNG DEVELOPMENT CORPORATION RESOLUTION FY2014-0004 EAHDC AUTHORIZING THE EXECUTION OF ASSIGNMENT AND ASSUMPTION OF INVESTOR PARTNER INTERESTS AND RELATED DOCUMENTS FOR ELLA AT ENCORE, LP WHEREAS, Encore Affordable Housing Development Corporation (EAHDC) is the General Partner in The Ella at Encore, LP which serves as the owner entity for the 160 unit Ella at Encore Senior Residences; WHEREAS, EAHDC, along with the other Assignors to the Partnership Agreement desire to authorize the assignment and transfer of limited partner interests in the Ella at Encore, LP; WHEREAS, NEF Assignment Corporation and NEF Community Investments, Inc., are the Assignee Partners who will acquire Limited Partner interest from Bank of America, NA and Bank of America CDC Special Holding Company, Inc.; and, WHEREAS, The Terms and Conditions of this Assignment and related documents are as described in the attached Ella at Encore, LP Assignment and Assumption of Investor Partner Interests, Acknowledgement and Consent Agreement, General Partner Tax Certificate, and HUD Notice of Transfer, along with related documents. NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of Encore Affordable Housing Development Corporation authorizes it s Secretary to execute, in substantial form, the Assignment and Assumption of Investor Partner Interests, Acknowledgement and Consent Agreement, General Partner Tax Certificate, and HUD Notice of Transfer, along with related documents for Ella at Encore, LP. Adopted this 15 th day of October 2014. President Secretary
ACKNOWLEDGMENT, CONSENT AND AGREEMENT THIS ACKNOWLEDGMENT, CONSENT AND AGREEMENT (the "Agreement") is given by HOUSING AUTHORITY OF THE CITY OF TAMPA, FLORIDA, a public body corporate and politic, organized and existing under the laws of the State of Florida ("THA"), to NEF ASSIGNMENT CORPORATION, as nominee, an Illinois not-for-profit corporation, its successors and assigns (the "NEFAC"). W I T N E S S E T H: WHEREAS, pursuant to that certain Assignment and Assumption of Investor Partner Interests and Fourth Amendment to Amended and Restated Agreement of Limited Partnership of The Ella at Encore, LP dated October 14, 2014 (the Assignment and Assumption ), Bank of America, N.A (the Investor Limited Partner ) is assigning its limited partner interest in The Ella at Encore, LP (the Partnership ) to NEFAC and Banc of America CDC Special Holding Company, Inc. (the Special Limited Partner ) is assigning its interest in the Partnership to NEF Community Investments, Inc., an Illinois not-for-profit corporation ( NEFCI ); WHEREAS, the Assignment and Assumption states that in addition to the assignment of the entire interest of the Investor Limited Partner and Special Limited Partner to NEFAC and NEFCI, respectively, the Investor Limited Partner is also assigning all of its rights and obligations under certain documents which include, without limitation, the Non-Negotiable Capital Demand Note dated August 30, 2011 for $4,000,000 (the Demand Note ) and the Agreement of Capital Demand Note Parties also dated August 30, 2011 (the Demand Note Agreement ) (collectively, the Demand Note and Demand Note Agreement shall be referred to collectively herein as the Demand Note Documents. Copies of the Demand Note Documents are attached hereto as Exhibit A; WHEREAS, since THA is the maker of the Demand Note and THA is not a party to the Assignment and Assumption, NEFAC has requested the specific acknowledgment, consent and agreement of THA to the assignment of the rights and obligations under the Demand Note Documents to NEFAC; NOW THEREFORE, in consideration for and as an inducement for NEFAC and NEFCI to accept the assignment of the interests of the Investor Limited Partner and Special Limited Partner pursuant to the Assignment and Assumption, THA further agrees as follows. 1. THA hereby acknowledges, consents and agrees to the assignment of the rights and obligations currently held by the Investor Limited Partner under the Demand Note Documents to NEFAC. Further, as of the date of this Agreement, THA hereby acknowledges, consents and agrees to the exercise of the rights and obligations initially held by the Investor Limited Partner pursuant to the Demand Note Documents by NEFAC. 2. As of the date of this Agreement, all notices or demands to the Investor Limited Partner pursuant to Section 3 of the Demand Note Agreement shall be delivered or sent to: Page 1 of 4 #32638997_v3
If to the Investor Limited Partner: NEF Assignment Corporation, as nominee 10 South Riverside Plaza, Suite 1700 Chicago, Illinois 60606 Attn: Mark Siranovic E-mail: marks@nefinc.org with copies to: NEF Community Investments, Inc. c/o National Equity Fund, Inc. 10 South Riverside Plaza, Suite 1700 Chicago, Illinois 60606 Attn: General Counsel 3. This Agreement shall be governed by and construed under the laws of the State of Florida. IN WITNESS WHEREOF, witness the execution hereof by THA on this, the day of 2014. HOUSING AUTHORITY OF THE CITY OF TAMPA, FLORIDA By: Jerome D. Ryans, President/CEO Page 2 of 4 #32638997_v3
Acknowledgment of Encore Affordable Housing Development Corporation By its signature below, Encore Affordable Housing Development Corporation, the general partner of The Ella at Encore, LP, hereby acknowledges and consents to the foregoing Acknowledgement, Consent and Agreement of the Housing Authority of the City of Tampa, Florida to the assignment of the rights and obligations of Bank of America, N.A. to NEF Assignment Corporation, as nominee, an Illinois not-for-profit corporation, pursuant to that certain Assignment and Assumption of Investor Partner Interests and Fourth Amendment to Amended and Restated Agreement of Limited Partnership. ENCORE AFFORDABLE HOUSING DEVELOPMENT CORPORATION, a Florida notfor-profit corporation By: Jerome D. Ryans Secretary Date: Page 3 of 4 #32638997_v3
Exhibit A Demand Note and Demand Note Agreement Page 4 of 4 #32638997_v3
AGREEMENT OF CAPITAL DEMAND NOTE PARTIES (The Ella at Encore) AGREEMENT OF CAPITAL DEMAND NOTE PARTIES (the Agreement ) is made as of August 30, 2011, by and among HOUSING AUTHORITY OF THE CITY OF TAMPA, FLORIDA, a public body corporate and politic, organized and existing under the laws of Florida (the Credit Provider ), ENCORE AFFORDABLE HOUSING DEVELOPMENT CORPORATION, a Florida not-for-profit corporation (the "General Partner"), and BANK OF AMERICA, N.A., a national banking association (the Investor Limited Partner ). Recitals A. The General Partner is being admitted to The Ella at Encore, LP, a Florida limited partnership (the Partnership ), which will be governed by an Amended and Restated Agreement of Limited Partnership dated as of August 30, 2011 (as amended, modified, supplemented or restated from time to time, the "Partnership Agreement ). B. The General Partner is a wholly owned subsidiary of the Credit Provider. D. The Investor Limited Partner is about to enter into the Partnership Agreement with the General Partner whereby the Investor Limited Partner will acquire a limited partnership interest in the Partnership pursuant to the Partnership Agreement. E. As a condition to the Investor Limited Partner entering into the Partnership Agreement, acquiring a limited partnership interest in the Partnership and becoming the Investor Limited Partner of the Partnership, the Credit Provider has agreed to enter into that certain Non- Negotiable Capital Demand Note in the amount of $4,000,000 of even date herewith ( the Demand Note ) whereby the Credit Provider has agreed to capitalize the General Partner so that it may fulfill its obligations to the Partnership and Investor Limited Partner under the terms of the Partnership Agreement. F. The availability of the Demand Note to the General Partner and, under certain circumstances as set forth in the Demand Note, the Investor Limited Partner, for purposes of satisfying the General Partner's obligations under the Partnership Agreement are material to the Investor Limited Partner, and the Investor Limited Partner would not be making its investment in the Partnership but for the availability of the Demand Note. I. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Partnership Agreement. NOW, THEREFORE, in order to induce the Investor Limited Partner to enter into the Partnership Agreement and become a limited partner of the Partnership, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Credit Provider, the General Partner and the Investor Limited Partner agrees as follows: Section 1. Until the obligations of the General Partner under the Partnership Agreement are paid in cash in full or fully performed, as applicable, or the end of the #10281394_v5
Compliance Period, whichever occurs first, the Credit Provider and General Partner covenant and agree with the Investor Limited Partner, and its successors and assigns, that: (a) the Demand Note will not be terminated, revoked, amended, modified, supplemented, restated, repudiated or satisfied other than by payment in full in cash; (b) all amounts due under the Demand Note shall be payable to the General Partner or Investor Limited Partner in accordance with the terms of the Demand Note without defense, setoff or counterclaim; (c) if the General Partner is removed or Retires as General Partner of the Partnership, the Demand Note will not be terminated, revoked, amended, modified, supplemented, restated, repudiated or satisfied other than by payment in full in cash for all of the obligations incurred by the General Partner prior to its removal or Retirement, if any; (d) if the Investor Limited Partner or Special Limited Partner exercises its rights to become an additional general partner under the terms of Section 6.3C of the Partnership Agreement, the Demand Note shall remain in full force and effect for the obligations of Encore Affordable Housing Development Corporation during such period of time until the Demand Note is paid in full in cash; (e) other than entering into and performing its obligations under the Partnership Agreement, the General Partner shall not engage in any business or activity including, for the avoidance of any doubt, incurring any liabilities or granting any security interest in any of its assets (other than as contemplated to secure the financing contemplated in the Partnership Agreement); and (f) the General Partner shall at all times be the wholly owned and controlled subsidiary of the Credit Provider. Section 2. The Credit Provider and General Partner hereby represent and warrant to the Investor Limited Partner that: (a) the execution and delivery and the observance and performance of this Agreement and the Demand Note, do not and will not conflict with or result in a breach of the terms or provisions of any existing rule, regulation or order of any court or governmental body or of any indenture, agreement or instrument to which the General Partner or the Credit Provider is a party, or by which the General Partner or the Credit Provider is bound, or to which the General Partner or the Credit Provider is subject, or constitute a default thereunder; (b) the Credit Provider has the right and requisite power and authority to enter into this Agreement and the Demand Note and perform its obligations hereunder and thereunder; (c) this Agreement and the Demand Note have been duly executed and delivered by the Credit Provider and the General Partner, as applicable, and constitute valid and binding obligations enforceable against the General Partner and the Credit Provider, as applicable, in accordance with their respective terms; (d) there are no facts or circumstances of any kind or nature whatsoever of which the General Partner or the Credit Provider is aware (including the fact that an affiliate of the Investor Limited Partner is the Credit Provider s development partner and a Class B Limited Partner of the Partnership) that could in any way impair or prevent the General Partner or the Credit Provider from performing its obligations under this Agreement or the Demand Note, as #10281394_v5 2
applicable; (e) any and all financial information with respect to the General Partner and the Credit Provider that the General Partner and the Credit Provider have given to the Investor Limited Partner in connection with the transactions contemplated by this Agreement and the Partnership Agreement fairly and accurately present its financial condition and results of operations as of the date thereof and for the period indicated therein, and, since the date thereof, there have been no adverse change in the financial conditions or results of operations of the General Partner or the Credit Provider, as applicable. The General Partner and Credit Provider jointly and severally hereby agree to indemnify and hold the Investor Limited Partner free and harmless from and against all loss, cost, damage and expenses, including reasonable attorney s fees and costs, which the Investor Limited Partner may sustain because of the inaccuracy or breach of any of the foregoing representations and warranties, each of which shall survive the execution and delivery of this Agreement. With regard to any claim arising from an action in tort, nothing in this Agreement shall be deemed or construed as a waiver of any privilege, immunity or other protection which may be available to the General Partner or the Credit Provider under the doctrine of sovereign immunity or the limitations of liability contained in Section 768.28, Florida Statutes. Likewise, to the extent applicable, any claim for indemnity arising from a tort action brought under this Agreement shall comply with the procedural requirements and pre-suit conditions contained in Section 768.28, Florida Statutes. Section 3. All notices or demands by the Credit Provider, the General Partner and the Investor Limited Partner to any other party hereto relating to this Agreement or the Demand Note shall be in writing and shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier or telefacsimile to the applicable person or entity, as the case may be, at its address set forth below: If to General Partner: with copies to: If to Credit Provider: Encore Affordable Housing Development Corporation c/o Housing Authority for the City of Tampa, Florida 1529 W. Main Street Tampa, FL 33607 Attn: Jerome D. Ryans, Secretary Fax: 813-367-0778 Saxon, Gilmore, Carraway & Gibbons, P.A. 201 E. Kennedy Boulevard, Suite 600 Tampa, FL 33602 Attn: Bernice S. Saxon, Esq. Fax: 813-314-4555 Housing Authority of the City of Tampa, Florida 1529 W. Main Street Tampa, FL 33607 Attn: President/CEO and SVP/COO #10281394_v5 3
Fax: 813-367-0778 with copies to: Investor Limited Partner: Saxon, Gilmore, Carraway & Gibbons, P.A. 201 E. Kennedy Boulevard, Suite 600 Tampa, FL 33602 Attn: Bernice S. Saxon, Esq. Fax: 813-314-4555 Bank of America, N.A. MA1-225-02-02 225 Franklin Street Boston, MA 02110 Attn: Gregory Doble Fax: 671-346-2724 with copies to: Holland & Knight LLP 10 St. James Avenue Boston, MA 02116 Attn: James E. McDermott, Esq. Fax No. 617-523-6850 Parties to this Agreement may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other parties. All notices or demands sent in accordance with this Section 3 shall be deemed received on the earlier of the date of actual receipt or 3 business days after the deposit thereof in the mail. Section 4. (a) Should any suit be brought to enforce the terms of this Agreement or any obligation herein, the prevailing party shall be entitled to reasonable attorney's fees, costs and expenses incurred therein. (b) Neither the Investor Limited Partner, nor any of its respective officers, directors, employees, or counsel shall be liable for any action lawfully taken or omitted to be taken by it or them hereunder or in connection with the Demand Note or this Agreement, except for its or their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. (c) THIS AGREEMENT AND THE DEMAND NOTE SHALL BE BINDING UPON THE CREDIT PROVIDER AND THE GENERAL PARTNER, AS APPLICABLE, AND THEIR SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, THE INVESTOR LIMITED PARTNER AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT #10281394_v5 4
IN WRITING DULY SIGNED FOR AND ON BEHALF OF ALL PARTIES TO THIS AGREEMENT. (d) No failure by the Investor Limited Partner to exercise any right or remedy under this Agreement or the Demand Note, or the delay by the Investor Limited Partner to exercise the same, will operate as a waiver thereof. No waiver by the Investor Limited Partner will be effective unless it is in writing, and then only to the extent specifically stated. The Investor Limited Partner s rights under this Agreement and the Demand Note will be cumulative and not exclusive of any other right or remedy that the Investor Limited Partner may have. (f) This Agreement may be executed in several counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the original or the same counterpart [Remainder of this page intentionally left blank] #10281394_v5 5
Encore Affordable Housing Development Corporation c/o Housing Authority of the City of Tampa, Florida 5301 W. Cypress Street Tampa, Florida 33607, 2014 To: NEF Assignment Corporation, as nominee 10 S. Riverside Plaza, Suite 1700 Chicago, IL 60606 Re: The Ella at Encore, LP Ladies and Gentlemen: In order to assist you in the transfer of the limited partner interest in The Ella at Encore, LP (the Partnership ), from Bank of America, N.A. and Banc of America CDC Special Holding Company, Inc. to NEF Assignment Corporation as Nominee, its successors and assigns, and NEF Community Investments, Inc. (together the "Limited Partner"), the undersigned Encore Affordable Housing Development Corporation, as General Partner of the Partnership (the General Partner ) hereby certifies to you that the following statements are true and correct. Unless otherwise defined herein, capitalized terms shall have the meanings set forth in the Partnership Agreement (as defined below): 1. The Partnership will be continued pursuant to the Amended and Restated Agreement of Limited Partnership dated August 30, 2011, as amended by that certain First Amendment to the Amended and Restated Agreement of Limited Partnership dated as of December 20, 2012, that certain Second Amendment to the Amended and Restated Agreement of Limited Partnership dated February 19, 2013 and that certain Third Amendment to the Amended and Restated Agreement of Limited Partnership dated January 24, 2014 (collectively, the Partnership Agreement ), a true and correct copy of which has been furnished to you by the undersigned. 2. The information supplied by the undersigned and their Affiliates to the Investor Limited Partner in connection with the investment of the Investor Limited Partner in the Partnership including, without limitation, the facts incorporated into the Initial Economic Projections attached to the Partnership Agreement and attached to this letter as Exhibit A, does not misstate any material fact or omit to state any material fact necessary in order to make such information provided, in the light of the circumstances under which such information was provided, not misleading. In addition, the General Partner is unaware of #32639008_v4 1
any changes that have occurred after the initial closing of the Partnership in August 2011 that would render the Economic Projections materially inaccurate. 3. Sixty-four (64) of the residential units in the Project are occupied by persons having 60% or less of the area median income, as adjusted for family size. Ninety-six (96) of the residential units in the Project are occupied by persons having 50% or less of the area median income, adjusted for family size. 4. Rents charged to low-income occupants will not exceed 30% of the applicable income limitation as determined under Section 42(g)(1) of the Internal Revenue Code of 1986, as the same may be amended from time to time (the Code ). 5. The Partnership has not, and is not anticipated to receive any federally funded grants. 6. Over 50% of the costs of the land and building comprising the Project has been financed with the proceeds of a tax-exempt bond for which volume cap authority has been issued. 7. The portion of the Project on which any low-income housing tax credit is claimed will be retained as low-income housing until the end of the fifteen-year period commencing on the date in which the Project will first be placed in service. 8. On May 5, 2011, the Florida Housing Finance Corporation issued a letter to the Partnership indicating that the Project is expected to qualify for LIHTCs in the annual amount of $888,136. 9. On December 19, 2013, the accounting firm of Mayer Hoffman McCann P.C. determined that the adjusted annual Federal Low Income Tax Credit amount the Project will qualify for is $923,324. 10. The Project is located in Census Tract 12057004000, which was a qualified census tract for purposes of the LIHTC basis boost provided for in Code Section 42(d)(5)(B). 11. The Partnership will enter into an Extended Use Agreement with respect to the Project as required under Section 42 of the Code and the Partnership will comply with the terms of the Extended Use Agreement. 12. The fees payable by the Partnership to the General Partner and affiliate(s) as set forth in the Partnership Agreement, including the developer s fee are reasonable in amount and ordinary and customary in nature for the services to be provided and such services have been and shall be provided as anticipated. 13. One hundred and sixty (160) of the residential units in the Project will be available to the general public, will be leased exclusively on a nontransient basis and will not be leased to any all-student households. Other than income qualification and general tenant screening for credit worthiness, criminal background and rental history, and as previously described to you, there will be no preferences given to any category of tenants (other than with respect to internal transfers). To the extent any preferences will be given, they have been and will be subordinated to the requirements of Title VIII of the Civil Rights Act of 1968. #32639008_v4 2
14. The Partnership has not made and will not make an election under Treasury Regulation 301.7701-2 and -3 to be taxed other than as a partnership for federal income tax purposes and has filed as a partnership on all of its previously filed federal income tax returns. 15. The Residential Condominium Unit has been formed and the Project does not include any commercial space. We understand that you will rely on the truth and accuracy of the foregoing statements in your purchase of the partnership interests in the Partnership. Very truly yours, GENERAL PARTNER: ENCORE AFFORDABLE HOUSING DEVELOPMENT CORPORATION, a Florida not-forprofit corporation By Jerome D. Ryans, Secretary #32639008_v4 3
Exhibit A
PROJECTION OF MINIMUM GAIN de-minimis exception allows the debt in the stack CALCULATION OF GAIN (LOSS) 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 Freddie Mac - - 2,884,418 2,852,071 2,818,079 2,782,359 2,744,824 2,705,380 2,663,931 2,620,374 2,574,604 2,526,506 2,475,964 2,422,852 2,367,040 2,308,390 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THA 'Equity' Note - - 839,927 872,348 833,826 728,854 620,071 507,571 391,465 271,879 148,959 22,868 - - - - THA Land Loan - - 1,630,880 1,693,832 1,759,214 1,827,120 1,897,646 1,970,896 2,046,972 2,125,985 2,208,048 2,293,279 2,275,589 2,235,667 2,196,741 2,159,199 THA RHF Loan - - 4,946,546 4,947,041 4,947,536 4,948,030 4,948,525 4,949,020 4,949,515 4,950,010 4,950,505 4,951,000 4,951,495 4,951,990 4,952,485 4,952,981 THA NSP2 Loan - - 3,250,163 3,250,488 3,250,813 3,251,138 3,251,463 3,251,788 3,252,113 3,252,438 3,252,764 3,253,089 3,253,414 3,253,739 3,254,065 3,254,390 City HOME - - 2,500,125 2,500,375 2,500,625 2,500,875 2,501,125 2,501,375 2,501,625 2,501,875 2,502,125 2,502,375 2,502,625 2,502,875 2,503,125 2,503,375 City NSP2 - - 1,000,050 1,000,150 1,000,250 1,000,350 1,000,450 1,000,550 1,000,650 1,000,750 1,000,850 1,000,950 1,001,050 1,001,150 1,001,250 1,001,350 Total Debt - - 17,052,108 17,116,304 17,110,342 17,038,726 16,964,104 16,886,579 16,806,270 16,723,312 16,637,854 16,550,067 16,460,137 16,368,274 16,274,706 16,179,686 Land 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 1,600,000 Off site Improvments - - - - - - - - - - - - - - - - Replacement Reserve Bal. - - 28,280 85,966 144,805 204,821 66,117 124,560 184,171 244,974 306,994 84,654 143,467 203,456 264,645 327,058 Capitalized Replacement Res. - - - - - - 196,000 196,000 196,000 196,000 196,000 476,000 476,000 476,000 476,000 476,000 Gross Book Value 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 22,038,735 Accum Depreciation - (120,788) (1,077,435) (1,967,155) (2,816,421) (3,653,001) (4,522,160) (5,372,701) (6,198,155) (7,008,555) (7,818,965) (8,674,076) (9,551,507) (10,393,088) (11,213,175) (12,033,252) Book Value of Property 23,638,735 23,517,947 22,589,579 21,757,546 20,967,119 20,190,555 19,378,692 18,586,593 17,820,751 17,071,155 16,322,764 15,525,313 14,706,695 13,925,103 13,166,205 12,408,541 Minimum Gain (Loss) $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ 315,090 $ 1,024,754 $ 1,753,443 $ 2,443,171 $ 3,108,501 $ 3,771,145 CHANGE IN MINIMUM GAIN $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ 315,090 $ 709,664 $ 728,689 $ 689,728 $ 665,330 $ 662,644 Ending Capital Account - LP 3,315,842 3,473,594 7,219,016 6,440,489 5,702,146 4,978,761 4,223,510 3,491,356 2,788,681 2,105,350 1,426,181 700,755 (43,216) (755,847) (1,443,746) (2,128,618) Allocated Minimum Gain to LP - - - - - - - - - - 315,059 1,024,652 1,753,267 2,442,926 3,108,190 3,770,768 Expected basis for future losses $3,315,842 $3,473,594 $7,219,016 $6,440,489 $5,702,146 $4,978,761 $4,223,510 $3,491,356 $2,788,681 $2,105,350 $1,741,240 $1,725,407 $1,710,051 $1,687,080 $1,664,444 $1,642,149 Note: LP Capital Account assumes no reduction from cash flow, as the Benefit Schedule does not include it as a benefit. 8/25/2011 3:00 PM Page 1
PROJECTED VALUE OF TAX CREDITS, TAX LOSSES, AND CASH FLOW AMOUNTS TO INVESTOR Federal Cash Value of Equity Net Income Tax Benefit / Historic Tax Gross State State Tax Cumulative Cumulative Capital Amount (Loss) (Expense) Federal LIHTC Credit Tax Credit Credit Cash Flow Annual Benefit Benefit Net Benefit Account 2011 3,315,842 - - - - - - - - (3,315,842) 3,315,842 2012-157,752 (58,368) - - - - (58,368) (58,368) (3,374,211) 3,473,594 2013 4,853,764 (1,108,342) 410,087 791,171 - - - 1,201,258 1,142,889 (7,026,717) 7,219,016 2014 - (778,526) 288,055 898,845 - - - 1,186,900 2,329,789 (5,839,817) 6,440,489 2015 (738,344) 273,187 898,845 - - - 1,172,032 3,501,821 (4,667,785) 5,702,146 2016 (723,385) 267,652 898,845 - - - 1,166,497 4,668,319 (3,501,287) 4,978,761 2017 (755,251) 279,443 898,845 - - - 1,178,288 5,846,607 (2,322,999) 4,223,510 2018 (732,154) 270,897 898,845 - - - 1,169,742 7,016,349 (1,153,257) 3,491,356 2019 (702,675) 259,990 898,845 - - - 1,158,835 8,175,184 5,578 2,788,681 2020 (683,332) 252,833 898,845 - - - 1,151,678 9,326,862 1,157,256 2,105,350 2021 (679,168) 251,292 898,845 - - - 1,150,137 10,476,999 2,307,393 1,426,181 2022 (725,426) 268,408 898,845 - - - 1,167,253 11,644,252 3,474,646 700,755 2023 (743,972) 275,269 107,674 - - - 382,944 12,027,195 3,857,589 (43,216) 2024 (712,630) 263,673 - - - - 263,673 12,290,869 4,121,263 (755,847) 2025 (687,900) 254,523 - - - - 254,523 12,545,391 4,375,785 (1,443,746) 2026 (684,872) 253,403 - - - - 253,403 12,798,794 4,629,188 (2,128,618) 2027 (642,372) 237,678 - - - - 237,678 13,036,472 4,866,866 (2,770,990) 2028 (618,570) 228,871 - - - - 228,871 13,265,343 5,095,737 (3,389,561) 2029 - - - - - - - - - - 2030 - - - - - - - - - - - - - 8,169,606 (11,559,167) 4,276,892 8,988,451 - - - - 13,265,343 (3,389,561) At Sale 2028-3,389,561 - (1,254,137) - - - - - - (1,254,137) - 13,265,343 3,841,599 Total $ 8,169,606 $ (8,169,606) $ 3,022,754 $ 8,988,451 $ - $ - $ - $ - $ 12,011,205 8/25/2011 2:59 PM Page 1
THE ELLA AT ENCORE, LP ASSIGNMENT AND ASSUMPTION OF INVESTOR PARTNER INTERESTS AND FOURTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP This Assignment and Assumption of Investor Interests and Fourth Amendment (this Amendment ) is entered into as of the day of, 2014 and made effective as of the day of, 2014 by and among Bank of America, N.A., a national banking association (the Assignor Investor Limited Partner ), Banc of America CDC Special Holding Company, Inc., a North Carolina corporation (the Assignor Special Limited Partner, and together with the Assignor Investor Limited Partner, the Assignor Partners ), NEF Assignment Corporation, an Illinois not-for-profit corporation, as nominee, (the Assignee Investor Limited Partner ), and NEF Community Investments, Inc., an Illinois not-for-profit corporation (the Assignee Special Limited Partner, and together with the Assignee Investor Limited Partner, the Assignee Partners ), and Encore Affordable Housing Development Corporation, a Florida not for profit corporation (the General Partner ). W I T N E S S E T H : WHEREAS, the Assignor Partners are partners of The Ella at Encore, LP (the Partnership ); WHEREAS, the Partnership is governed by the Amended and Restated Agreement of Limited Partnership dated as of August 30, 2011, as amended by that certain First Amendment to the Amended and Restated Agreement of Limited Partnership dated as of December 20, 2012, that certain Second Amendment to the Amended and Restated Agreement of Limited Partnership dated February 19, 2013 and that certain Third Amendment to the Amended and Restated Agreement of Limited Partnership dated January 24, 2014 (collectively, the Partnership Agreement ); WHEREAS, the Assignor Investor Limited Partner is the sole Investor Limited Partner and the holder of a 99.99% partnership interest in the Partnership (the Investor Interest ), and the Assignor Special Limited Partner is the sole Special Limited Partner and the holder of a 0.00% partnership interest in the Partnership (the Special Limited Partner Interest ); WHEREAS, the parties acknowledge that the assignment contemplated hereby includes not only the Investor Interest and Special Limited Partner Interest of Assignor Partners, but also their rights and obligations under the Partnership Agreement and under all other documents contemplated under the Partnership Agreement that may inure to the benefit of the Assignor Partners thereunder (collectively, the Ancillary Documents ; the Investor Interest and Special Limited Partner Interest, together with all rights and obligations of the Assignor Partners under the Ancillary Documents are collectively referenced herein as the Investor Partner Interests ). WHERAS, in addition to the assignment contemplated hereby, the parties desire to amend the Partnership Agreement on the terms hereinafter set forth. #32638842_v6
NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth, the parties agree as follows: 1. Definitions. Capitalized terms not defined herein shall have the meanings ascribed to them in the Partnership Agreement. 2. Representations and Warranties by Assignor Partners. The Assignor Partners hereby represent and warrant, jointly and severally, to the Assignee Partners that (i) the execution, delivery and performance by the Assignor Partners of this Amendment are within their respective corporate powers and have been duly authorized by all necessary corporate action on their part, (ii) the Assignor Partners own their respective Investor Partner Interests free and clear of all liens, claims, security interests, transfer restrictions and other encumbrances, other than as specifically provided in the Partnership Agreement, (iii) this Amendment does not constitute a default under any agreement to which either of the Assignor Partners is a party or by which either of the Assignor Partners is bound and, except as specified on Exhibit B, no consents or Requisite Approvals to the substitution of the Assignee Investor Limited Partner and Assignee Special Limited Partner as Investor Limited Partner and Special Limited Partner, respectively, pursuant to this Amendment are required from any party, including, without limitation, the General Partner of the Partnership or any lender, and (iv) the Assignor Investor Limited Partner has paid in full the First and the Second Installment of its Capital Contributions and the Reimbursement Contribution. 3. Assignment of Investor Limited Partner Interest and Special Limited Partner Interest. The Assignor Investor Limited Partner hereby assigns to the Assignee Investor Limited Partner the Investor Limited Partner Interest being the Assignor Investor Limited Partner s entire right, title and interest in and to the profits, losses and tax credits of the Partnership, together with all rights and obligations of the Assignor Investor Limited Partner in the Investor Partner Interests, including, without limitation, its interest under the Partnership Agreement and any and all of the agreements described on Exhibit C attached hereto. The Assignor Special Limited Partner hereby assigns to the Assignee Special Limited Partner the Special Limited Partner Interest, being the Assignor Special Limited Partner s entire right, title and interest in and to the Profits, Losses and Federal Low Income Tax Credits of the Partnership, together with all rights and obligations of the Assignor Special Limited Partner in the Investor Partner Interests, including without limitation, its interest under the Partnership Agreement and any and all of the agreements described on Exhibit C attached hereto. 4. Effect of Assignments. From and after the date of this Amendment, the Assignor Partners and the Assignee Partners shall treat the Assignee Partners as the owners of the Investor Partner Interests for all purposes, including the allocation of all profits, gains, losses, and credits for income tax purposes and any distributions with respect thereof. The Assignor Partners, jointly and severally, shall indemnify and hold the Assignee Partners harmless against all claims, losses, liabilities, costs and expenses (including attorneys fees) arising out of the Assignor Partners acts or omissions as the predecessor Investor Limited Partner and Special Limited Partner, and any liability or obligation of any Assignor Partner under the Partnership #32638842_v6 2
Agreement and any agreement or instrument other than the Partnership Agreement which may have accrued on or before the date hereof. 5. Assumption. The Assignee Investor Limited Partner hereby accepts the Investor Interest and agrees to be bound by the Partnership Agreement and to assume all rights and obligations of the Assignor Investor Limited Partner in the Investor Partner Interests which may accrue after the date hereof. The Assignee Special Limited Partner hereby accepts the Special Limited Partner Interest and agrees to be bound by the Partnership Agreement and to assume all rights and obligations of the Assignor Special Limited Partner in the Investor Partner Interests which may accrue after the date hereof. The Assignee Partners, jointly and severally, shall indemnify and hold the Assignor Partners harmless against all claims, losses, liabilities, costs and expenses (including attorneys fees) arising out of the Assignee Partners acts or omissions as the successor Investor Limited Partner and Special Limited Partner, and any liability or obligation of any Assignee Partner under the Partnership Agreement and any agreement or instrument other than the Partnership Agreement, which may accrue on or after the date hereof. 6. Rights of Assignee Partners. The parties agree that they shall reasonably cooperate with each other and with the General Partner for the purpose of causing the Assignee Partners to be admitted, pursuant to this Amendment effective as of the date of this Amendment, as Substitute Limited Partners of the Partnership in their respective capacities as either Investor Limited Partner or Special Limited Partner, as applicable. 7. Further Covenants and Representations by Assignor Partners. The Assignor Partners hereby further covenant that the Assignor Partners will, at any time, and from time to time, upon written request therefor, execute and deliver to the Assignee Partners, any reasonable corrective or confirmatory instruments (in forms reasonably acceptable to the Assignor Partners) which the Assignee Partners may reasonably request in order to fully assign, transfer and vest in the Assignee Partners, or their successors, nominees and assigns, the Investor Partner Interests and to protect their rights, title and interest in and to the Investor Partner Interests, or to otherwise realize upon or enjoy such rights in and to the Investor Partner Interests. The Assignor Partners further covenant that they will promptly provide the Assignee Partners with copies of all correspondence, notices, reports and similar documents related to the Partnership that are received by the Assignor Partners. The Assignor Partners represent and warrant, jointly and severally, to the Assignee Partners that no further action (other than the execution and delivery by the parties of this Amendment) is required under the Partnership Agreement in order to admit the Assignee Partners as Substitute Limited Partners. 8. Costs and Fees. The Assignor Investor Limited Partner shall pay all reasonable and customary expenses incurred by the General Partner or the Partnership in connection with the transfer of the Investor Partner Interests contemplated by this Amendment, including any excise or transfer taxes and accounting fees payable with respect to the transfer and assignment of the Investor Partner Interests. 9. Amendment of Partnership Agreement. The parties acknowledge and agree that the Partnership Agreement is hereby amended as follows: #32638842_v6 3
a) All references to Investor Limited Partner and Special Limited Partner in the Partnership Agreement shall mean the Assignee Investor Limited Partner and the Assignee Special Limited Partner, respectively, and their respective successors in such capacity. b) All references to Class B Limited Partner in the Partnership Agreement are hereby deemed to be stricken. The parties hereto acknowledge that the Class B Limited Partner Withdrawal Date as such term is defined in the Partnership Agreement occurred on January 24, 2014. As of January 24, 2014, the Class B Limited Partner withdrew from the Partnership and was released from any and all obligations relating to the Partnership, the Project, the Guaranty or the Assignor Limited Partners and relinquished all of its rights relating to the Partnership, the Project the Assignor Limited Partners and the Guaranty. Any and all costs incurred by the Class B Limited Partner including but not limited to Development Costs, Development Deficit Loans and Operating Expense Loans made by the Class B Limited Partner to the Partnership have been repaid in full. Any portion of the Partnership Management Fee that was owed to the Class B Limited Partner was paid in full prior to its withdrawal. (c) The definition of Cumulative Priority Distribution is hereby deleted in its entirety and is replaced with the following definition: Cumulative Priority Distribution means, as of a point in time, the amount, on a cumulative basis, of the Priority Distribution to which the Special Limited Partner shall become entitled hereunder. (d) The references to Section 6.4Q found in Section 6.4(P)(iv), (v) and (vi) of the Partnership Agreement are hereby deleted and replaced with references to Section 6.4P. (e) The reference to Section 6.4Q(iii) in Section 10.1A clause Second is hereby deleted and replaced with a reference to Section 6.4P(iii). (f) The reference to Section 6.4Q(iii) in Section 10.1B clause Third is hereby deleted and replaced with a reference to Section 6.4P(iii). (g) The identification of the Special Limited Partner and Investor Limited Partner in Exhibit A of the Partnership Agreement is hereby amended as follows and replaced with the attached Exhibit A: SPECIAL LIMITED PARTNER: NEF Community Investments, Inc. c/o National Equity Fund, Inc. #32638842_v6 4
10 South Riverside Plaza, Suite 1700 Chicago, IL 60606 Attn: Mark Siranovic 312-697-6173 (Telephone No.) Email: marks@nefinc.org INVESTOR LIMITED PARTNER: NEF Assignment Corporation, as nominee c/o National Equity Fund, Inc. 10 South Riverside Plaza, Suite 1700 Chicago, IL 60606 Attn: Mark Siranovic 312-697-6173 (Telephone No.) Email: marks@nefinc.org (h) The language of Section 6.3C of the Partnership Agreement is hereby supplemented as may be required to clarify that any entity of which a majority of the partnership interest is owned, directly or indirectly, by an Affiliate of the Special Limited Partner may become an additional general partner under the terms and conditions set forth in those sections, and all references to Bank of America in those sections are hereby deleted. 10. Counterparts. This Amendment may be executed in counterparts, each taken together with the other counterparts shall constitute one instrument, binding and enforceable against each signatory to any counterpart instrument. Any facsimile signature shall be accepted as an original if containing a copy of the original signature notwithstanding that the original has not been received. 11. General Acknowledgement. Subject to approval by all applicable lenders, third parties and governmental authorities listed on Exhibit B, and the obligations of the respective parties hereunder, the General Partner hereby consents to the transactions and amendments of the Partnership Agreement evidenced by this Amendment and hereby agrees and acknowledges that the Assignee Investor Limited Partner and the Assignee Special Limited Partner are admitted to the Partnership as Substitute Limited Partners, specifically as the Investor Limited Partner, and Special Limited Partner, respectively, pursuant to the Partnership Agreement. The General Partner hereby represents and warrants to the Assignee Investor Limited Partner and the Assignee Special Limited Partner the following: a) Assignor Investor Limited Partner has heretofore funded Capital Contributions in the amount of $8,303,825, has paid in full the Reimbursement Contribution, and has satisfied all obligations of the Assignor Investor Limited Partner to make the payments under the Partnership Agreement to pay all Installments of the Investor Limited Partner s Capital Contributions. The Special Limited Partner has no obligation to pay Capital Contributions or any other amounts under the Partnership Agreement. The Assignee Investor Limited Partner shall not assume #32638842_v6 5
any obligation to make future Installments of Capital Contributions because all Capital Contributions have previously been contributed to the Partnership by the Assignor Investor Limited Partner. b) To the General Partner s actual knowledge, as of the date hereof, Assignor Investor Limited Partner and Assignor Special Limited Partner are not in default in the performance of any of their respective obligations under the Partnership Agreement, and no fact or circumstance exists, which, with giving of notice or the passage of time, would constitute a breach of their respective obligations under the Partnership Agreement. c) To the General Partner s actual knowledge as of the date hereof, there is no action pending or threatened against the Partnership, the General Partner or THA that would have a material, adverse effect on the General Partner s or THA s ability to perform their respective obligations as a party to the Partnership Agreement or other Project documents. 12. Ratification of Partnership Agreement. Except as specifically modified herein, the terms and conditions of the Partnership Agreement shall remain in full force and effect and hereby are ratified and confirmed in all respects by the parties hereto. This Amendment is binding upon, and inures to the benefit of, the parties hereto and their respective successors and assigns. 13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to conflicts of law principles thereof. #32638842_v6 6
IN WITNESS WHEREOF, the Assignor Partners, and the Assignee Partners have executed this Amendment or caused this Amendment to be executed as of the day first written above. ASSIGNOR PARTNERS: BANK OF AMERICA, N.A., a national banking association By: Claudia B. Robinson Senior Vice President BANC OF AMERICA CDC SPECIAL HOLDING COMPANY, INC., a North Carolina corporation By: Claudia B. Robinson Senior Vice President ASSIGNEE PARTNERS: NEF ASSIGNMENT CORPORATION, an Illinois not-for-profit corporation, as nominee By: Mark Siranovic Senior Vice President NEF COMMUNITY INVESTMENTS, INC., an Illinois not-for-profit corporation By: Mark Siranovic Senior Vice President The Ella at Encore, LP Assignment and Assumption of Investor Partner Interests and Fourth Amendment to Amended and Restated Agreement of Limited Partnership Signature Page 1 of 2
GENERAL PARTNER: ENCORE AFFORDABLE HOUSING DEVELOPMENT CORPORATION, a Florida notfor-profit corporation By: Jerome D. Ryans Secretary The Ella at Encore, LP Assignment and Assumption of Investor Partner Interests and Fourth Amendment to Amended and Restated Agreement of Limited Partnership Signature Page 2 of 2