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Exhibit 10.4
ASSIGNMENT AND ASSUMPTION
AGREEMENT
This Assignment and Assumption Agreement (the
"Agreement") is made as of September 28, 2007 (the
"Effective Date"), by and between National Tax Credit
Investors II, a California limited partnership ("NTCI II"), and
National Tax Credit, Inc. II, a California corporation (together
with NTCI 11, each an "Assignor" and, collectively,
"Assignors"); Salem Park Management Company, Inc., a
Arkansas corporation ("General Partner"); and James E.
Lindsey, an individual, Walter L. Harber, an individual, Gary S.
Cuozzo, an individual, Edward Calhoun, an individual (each an
"Assignee" and, collectively, "Assignees" and
together with each of Assignors and General Partner, each a
"Party," and as the context requires, any two or more,
collectively, the "Parties"), with reference to the
following:
A.
Salem Park, A Limited Partnership (the
"Partnership"") was formed as a limited partnership under
the laws of the State of Arkansas and is being governed pursuant
to an Amended and Restated Certificate and Agreement of Limited
Partnership, dated as of September 12, 1991, as amended
(collectively, the "Amended Partnership Agreement") (any
capitalized word or phrase used but not defined herein shall
have the meaning set forth in the Amended Partnership
Agreement).
B.
General Partner is the general partner of the Partnership and
Assignors are the limited partners of the Partnership.
C.
Assignors have agreed to assign all of their
interests in the Partnership to Assignees and withdraw from the
Partnership, Assignees have agreed to acquire such interests and
General Partner has consented to such assignment and assumption,
all pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual
promises and for such other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1.
Assignment and Assumption. Effective as of the "Closing
Date" (as hereinafter defined):
1.1
Effective as of the "Closing" (as hereinafter defined)
(a)
Each Assignor hereby assigns to Assignees 100%
of such Assignor's interest in the Partnership, including,
without limitation, all profits, losses, Cash from Operations,
surplus cash from a Disposition or Partial Disposition of
Partnership Property, and rights to any fees and distributions
(such limited partnership interest in the Partnership is
hereinafter referred to as the "Interest" and together
with the Interest of the other Assignor, collectively, the
"Interests"); and
(b)
Assignees assume and agree to perform all of the obligations of
Assignors under the Amended Partnership Agreement.
1.2 In consideration for the assignments of the
Interests as herein provided, at the Closing Assignees shall pay
to Assignors an aggregate amount (the "Payment") equal to
$1,946,807.00. The Payment shall be treated as a direct
acquisition of the Interests. Each Assignor covenants and agrees
that such sum shall be received in full satisfaction of all
obligations and liabilities due such Assignor in connection with
or in any manner arising out of
the Partnership, the Project or any other assets owned by the
Partnership. The Payment shall be made by federal funds wired
pursuant to instructions from Assignors.
2.
Releases.
2.1 Except for the representations and
warranties of Assignors set forth in this Agreement and the
"Amendment" (as hereinafter defined"), each of the Partnership,
General Partner and each Assignee, for itself and for and on
behalf of its partners, members, directors, officers, employees,
servants, agents, representatives, administrators, assigns, and
attorneys, and on behalf of the Partnership (collectively, the
"Partnership Parties"), hereby releases, waives and
relinquishes all actions, causes of action, claims and demands
whatsoever, at law or in equity, and damages (collectively,
"Claims") that any of the Partnership Parties has or
allegedly has against either or both Assignors and/or their
respective partners, members, directors, officers, employees,
servants, agents, representatives, administrators, assigns, and
attorneys (collectively, the "NTCI Parties") from the
beginning of time up to and including the Closing Date.
2.2 Except for the representations and
warranties of General Partner and the obligations of Assignees
set forth in this Agreement and the Amendment, each Assignor,
for itself and the other NTCI Parties, hereby releases, waives,
relinquishes all Claims that Assignor has or allegedly has
against the Partnership Parties, or any of them, from the
beginning of time up to and including the Closing Date, This
release is meant to include, by way of example and not
limitation, all claims arising from or related to the management
and operation of the Apartment Complex and the Partnership.
2.3
Assignors, General Partner and Assignees each acknowledges that it
is familiar with Section 1542 of the Civil Code of the State of
California, which provides:
A general release does not extend to claims
which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which if known by
him must have materially affected his settlement with the
debtor.
Assignors, for themselves and the other NTCI
Parties, and each of General Partner and each Assignee, for
itself and the other Partnership Parties, waives and
relinquishes any right or benefit which either has or may have
under Section 1542 of the Civil Code of the State of California
or any similar statute under the laws of the State of Arkansas
to the full extent that each may lawfully waive all rights and
benefits pertaining to the matters set forth herein, in
connection with such waiver and relinquishment, Assignors,
General Partner and Assignees each acknowledges that it is aware
that it may hereafter discover facts in addition to or different
from those which it now knows or believes to be true with
respect to the subject matter of this Agreement, but it is the
intention of Assignors, General Partner and Assignees hereby to
fully, finally, and forever settle and release all disputes and
differences, known and unknown, suspected and unsuspected, which
now exist, may exist or hereafter have existed between them, and
in furtherance of such intention, the release herein given shall
be and remain in effect as a full and complete general mutual
release notwithstanding the discovery or existence of any such
additional or different facts.
3. Closing. The closing of the
transactions contemplated by this Agreement (the
"Closing") shall occur no later than September 28, 2007
(the "Closing Date"), In the event the Closing does not
occur on or before the Closing Date, this Agreement shall
terminate automatically without the necessity of any further
action
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