Exhibit 2.1
This
Plan of Liquidation (the
“Plan”), dated as of
July 15, 2019, is entered into by and between American Tax Credit Properties III L.P., a Delaware limited
partnership (the
“Partnership”), and Richman Tax Credit Properties III L.P., a Delaware limited partnership (the
“General Partner”), for the purposes of completing the liquidation and winding up of the Partnership. Certain capitalized terms used but
not defined herein have the meanings assigned to them in the Partnership Agreement (as defined below).
RECITALS
WHEREAS, the Partnership is governed by the Amended and Restated Agreement of Limited Partnership of the Partnership, dated June 13, 1990, as amended (the
“Partnership Agreement”);
WHEREAS, with the sale or disposition of all Local Partnership Interests and substantially all other assets of the Partnership, the Partnership has dissolved in
accordance with the terms of Section 8.1(a)(ii) of the Partnership Agreement;
WHEREAS, the General Partner has determined to cause the Partnership to adopt this Plan in order to best carry out the liquidation and winding up of the
Partnership, as contemplated by Section 8.2 of the Partnership Agreement;
NOW, THEREFORE, the Partnership hereby adopts this Plan as follows:
1. The Partnership shall undertake to promptly sell, dispose of or otherwise liquidate all of its remaining assets and to apply the proceeds thereof as provided in this Plan.
2. The Partnership shall apply the proceeds resulting from the sale or other disposition of all of its remaining assets, as follows:
(a) First, to payment of liabilities owing to creditors (including the payment of any current or deferred management fees and administrative fees); and
(b) Second, to deposit to an account (the “Liquidation Trust Account”), to be maintained in trust by a bank, trust company or other financial institution, as a
reserve, as contemplated by Section 8.2(b) of the Partnership Agreement, for the purpose of paying any liabilities, including any contingent or unforeseen liabilities (“Future Liabilities”), and for the purpose of distributing all remaining net
assets, if any, in accordance with Section 8.2(c) of the Partnership Agreement.
3. Upon the implementation of the Plan, the Partnership shall file a certificate of cancellation with the Secretary of State of the State of Delaware in accordance with Section 17-203 of the Delaware
Revised Uniform Limited Partnership Act (the “Certificate of Cancellation”) (such filing, the “Cancellation”).
4. The term of the Liquidation Trust Account shall be three (3) years; provided that the Liquidation Account Trustee (as defined below) may determine to extend the term from time to time in six (6)
month increments as necessary or desirable to satisfy the Future Liabilities (such term, as it may be extended, the “Trust Account Term”). During the Trust Account Term, Richman Tax Credit Properties III L.P., or such other Person as shall be
designated by the General Partner for the purposes hereof (the “Liquidation Account Trustee”), shall, from time to time, apply the funds in the Liquidation Trust Account, or cause such funds to be applied, to the satisfaction of the Future
Liabilities.
5. Concurrently with the execution of this Plan, the Partnership and the Liquidation Account Trustee shall enter into an Account Assignment Agreement, in the form of Annex I, with respect to the
assignment to the Liquidation Account Trustee of certain accounts of the Partnership. The provisions of such Account Assignment Agreement shall be deemed to be a part of this Plan, and the actions of the Liquidation Account Trustee in respect
thereof shall be entitled to all the protections of this Plan.
6. For the avoidance of doubt, expenses of the Liquidation Account Trustee, incurred in performance of its duties as such, shall be deemed to be Future Liabilities and shall be payable out of the
Liquidation Trust Account.
7. If, at any time during the Trust Account Term, the Liquidation Account Trustee, in its discretion, determines that the amount of funds in the Liquidation Trust Account exceeds the amount that is
reasonably necessary for the purpose of paying any Future Liabilities, the Liquidation Account Trustee shall apply the excess funds to a cash distribution among the persons who were Limited Partners at the date of Cancellation and the General
Partner, in proportion to their respective ownership interests as of such date, as provided in Section 8.2(c) of the Partnership Agreement.
The Liquidation Account Trustee shall make an initial determination of the availability of any such excess funds as promptly as practicable following the
Cancellation and shall make a distribution of excess funds, if any, as promptly thereafter as practicable.
8. Upon expiration of the Trust Account Term, the Liquidation Account Trustee shall distribute any remaining Liquidation Trust Account funds, in cash, among those persons who were the Limited Partners
as of the date of Cancellation and the General Partner, in proportion to their respective ownership interests as of such date, as provided in Section 8.2(c) of the Partnership Agreement.
To the extent such distribution is not practicable, the Liquidation Account Trustee shall cause any remaining funds in the Liquidation Trust Account to be donated
to a charitable organization of the Liquidation Account Trustee’s choice described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and exempt from United States federal income tax under section 501(a) of the same.
9. Following the Cancellation, the Liquidation Account Trustee shall cause to be made such filings with federal and state tax authorities, and to be provided to the recipients of distributions from
the Liquidation Trust Account such reports with respect thereto, as may be required under applicable law.
10. The obligation of the Partnership to indemnify the General Partner and its Affiliates in accordance with the Partnership’s Certificate of Limited Partnership, the Partnership
Agreement and any contractual arrangements for actions taken in connection with this Plan shall survive the dissolution and liquidation of the Partnership, and any obligation relating thereto, to the extent not satisfied prior to Cancellation,
shall be deemed a Future Liability.
11. The Liquidation Account Trustee and its Affiliates shall not be liable for actions taken in their capacity as such to the same extent as provided in Section 5.8 of the Partnership
Agreement with respect to the General Partner and its Affiliates. The General Partner and the Liquidation Account Trustee shall be authorized to obtain and maintain insurance as may be necessary, appropriate or advisable against liabilities
incurred by them in the performance of their duties under this Plan or, in the case of the General Partner, the performance of its duties under the Partnership Agreement prior to the dissolution and liquidation of the Partnership. To the extent
any rights of indemnification or insurance premiums accrue after the funding of the Liquidation Trust Account, the costs thereof shall be deemed Future Liabilities and shall be payable out of the Liquidation Trust Account.
12. This Plan may at any time, or from time to time, be amended or modified, by the General Partner or, following the Cancellation, by the Liquidation Account Trustee, if the General
Partner or the Liquidation Account Trustee, as the case may be, determines that such amendment or modification is necessary or desirable to better accomplish the purposes hereof.
13. The General Partner or, following the Cancellation, the Liquidation Account Trustee, shall take any and all other actions deemed required, necessary or desirable to complete the
liquidation of the Partnership, including, but not limited to, the execution and delivery of any and all agreements, certificates, instruments or other documents deemed required, necessary or desirable in connection therewith.
[The remainder of this page is left intentionally blank.]
IN WITNESS WHEREOF, this Plan has been
executed as of the date first set forth above.
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PARTNERSHIP:
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AMERICAN TAX CREDIT PROPERTIES III L.P.
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By:
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RICHMAN TAX CREDIT PROPERTIES III L.P.
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its General Partner
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its General Partner
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GENERAL PARTNER:
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RICHMAN TAX CREDIT PROPERTIES III L.P.
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By:
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its General Partner
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By:
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Title: President
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ANNEX I
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "
Agreement"), dated as of
July
15, 2019, is by and between American Tax Credit Properties III L.P. a Delaware limited partnership (the
“Partnership”), and Richman Tax Credit Properties III L.P., a Delaware limited partnership, not individually but in its capacity as Liquidation
Account Trustee for the Partnership (the
"Liquidation Account Trustee"). Capitalized terms used but not otherwise defined herein have the meaning assigned to them in the Plan (as defined below).
B. The bank accounts of the Partnership identified on Schedule I to this Agreement (the “Accounts”) are required to remain open for a period of time following the liquidation of the Partnership in
order to allow checks and other drafts written on the Accounts to be honored and clear.
C. In furtherance of the Plan, the Partnership hereby assigns, conveys and transfers to the Liquidation Account Trustee all rights, title and interest in and to the Accounts, effective immediately
prior to the filing of the Certificate of Cancellation.
D. In the event that any funds remain in the Accounts after all checks and drafts written on the Accounts have been paid, or are outstanding beyond the period during which they may be honored under
applicable laws and procedures, the Liquidation Account Trustee will cause the funds to be transferred to the Liquidation Trust Account.
E. At such time as there are no funds remaining in the Accounts, the Liquidation Account Trustee shall cause the Accounts to be closed.
F. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of
the State of Delaware or any other jurisdiction).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the date first above written.
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PARTNERSHIP:
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AMERICAN TAX CREDIT PROPERTIES III L.P.
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By:
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RICHMAN TAX CREDIT PROPERTIES III L.P.
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its General Partner
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its General Partner
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GENERAL PARTNER:
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RICHMAN TAX CREDIT PROPERTIES III L.P., not individually, but solely in its capacity as Liquidation Account Trustee
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By:
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its General Partner
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By:
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Title: President
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SCHEDULE 1
Accounts
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Entity Name
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Bank Account #
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Bank
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American Tax Credit Properties III L.P.
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004628797102
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Bank of America
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American Tax Credit Properties III L.P.
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60616 - Pemberwick Fund
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US Bank
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