Structuring General Partner Transfers During the Compliance Period By: Thomas A. Giblin Nixon Peabody LLP

Successfully Completing A General Partner Transfer Understanding buyer/seller perspectives Tax and business issues Common due diligence traps Obtaining required consents Working with project lenders and investors Processing general partner transfers: the investor perspective

Understanding Sellers Motivation to Sell Retirement/family succession issues Corporate merger/sale/restructuring of developer Workout/removal situation Death/incapacity/bankruptcy Insufficient access to additional resources

Understanding Buyers Motivation to Buy Property management fees Efficiencies with nearby projects Future acquisition/rehabilitation transaction Unlocking residual value (conversion to market rate/condominium) Charitable purpose/mission for non-profits Access to debt/equity not available to current owner

Ownership Transfers: Business Issues Structuring the business deal - Identifying assumed obligations - Release/indemnification - Representations and warranties Addressing deferred maintenance/repairs Partnership restructuring issues (refinancing/debt restructuring) Negotiating management transition Scope of due diligence review

Common Due Diligence Traps When Acquiring Partnership Interests Real estate/property due diligence Tax credit due diligence Financial due diligence

Real Estate/Property Due Diligence Understanding physical condition/deferred maintenance – Physical needs assessment – Phase I report Confirm no ROFR/Options have been granted UCC/litigation/judgment searches and title date down reports Review of material contracts – Termination fees/assignability – Construction warranties Rent rolls Identify deed restrictions/use agreements that survive repayment of loan

TAX CREDIT DUE DILIGENCE Tax credit application/carryover/LURA/regulatory agreements/8609s Tenant files (especially 1 st year files to confirm minimum set-aside) IRS Form 8823 (non-compliance reports) Use of IRS Form 8821 (Tax Information Authorization)

Financial Due Diligence Reviewing tax returns and financial statements - Unpaid tax credit adjusters - Accrued fees and loans to partners - Unpaid development fees Understanding accrued soft debt and other financing issues - Accrued interest (especially with soft debt) - Loan terms/balloon payments Understanding existing capital account balances

Understanding Consent Requirements Lender Tax credit agency HUD Syndicator/investor Other partners Local jurisdiction (if tax exemption/PILOT)

Working with Project Lenders Reviewing transfer restrictions/due on sale clauses Obtaining required lender consents – General partner interest – Management agent change Negotiating application and transfer fees Obtaining no default letter Transferring any key principal/guarantor liability Reserve funding

Ownership Transfers: Tax Issues Managing exit tax liability Calculating recapture liability/obtaining recapture bond Reviewing partner capital account balances Addressing future reallocations Phantom income Debt restructuring/debt forgiveness Other state and local tax issues – Termination/liquidation under state law – Real estate transfer tax issues

Processing Ownership Transfers: the Investor Perspective Understanding reasons behind the proposed transfer Underwriting experience and financial strength of replacement general partner Status of reporting obligations/adjusters/asset management fees Assumption of all general partner obligations/replacement guaranties Underwriting new accountant/management agent Exit strategy Consents (lender/agency consents) Impact on other deals with investor Insurance issues