EXHIBIT 2.1
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GENERAL AND LIMITED PARTNER INTEREST ASSIGNMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 10th day of
October, 2001 by and among Maxum LLC, a Nevada limited liability company
(the "GP Buyer"), Western Real Estate Investments, LLC, a Delaware limited
liability company (the "LP Buyer" and, together with the GP Buyer, the
"Buyers"), RAM Funding, Inc., a Delaware corporation (the "MGP Seller"),
Presidio AGP Corp., a Delaware corporation (the "AGP Seller" and, together
with the MGP Seller, the "▇▇ ▇▇▇▇▇▇▇"), and the affiliates of the ▇▇
▇▇▇▇▇▇▇ set forth on the signature page hereof (the "LP Sellers" and,
together with the ▇▇ ▇▇▇▇▇▇▇, the "Sellers").
WITNESSETH
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WHEREAS, the ▇▇ ▇▇▇▇▇▇▇ are the general partners of Resources Accrued
Mortgage Investors 2 L.P., a Delaware limited partnership (the
"Partnership").
WHEREAS, each of the LP Sellers is an affiliate of one or both of the
▇▇ ▇▇▇▇▇▇▇ and a limited partner of the Partnership.
WHEREAS, the MGP Seller desires to sell to the GP Buyer, and the GP
Buyer desires to acquire from the MGP Seller, all of the MGP Seller's
rights and interests (economic and otherwise), duties, liabilities and
obligations (the "MGP Transferred Interest") as set forth in the
Partnership's Amended and Restated Agreement of Limited Partnership, as
amended to date (the "Partnership Agreement"), subject to the terms and
provisions set forth below.
WHEREAS, the AGP Seller desires to sell to the GP Buyer, and the GP
Buyer desires to acquire from the AGP Seller, all of the AGP Seller's
rights and interests (economic and otherwise), duties, liabilities and
obligations as set forth in the Partnership Agreement (the "AGP Transferred
Interest" and, together with the MGP Transferred Interest, the "GP
Transferred Interests"), subject to the terms and provisions set forth
below.
WHEREAS, each of the LP Sellers desire to sell to the LP Buyer, and
the LP Buyer desires to acquire from each of the LP Sellers, all of such LP
Seller's units of limited partnership interest in the Partnership (the
"Transferred Units"), subject to the terms and provisions set forth below.
NOW, THEREFORE, it is hereby agreed, by and between the parties
hereto, as follows:
ARTICLE I
SALE AGREEMENT AND PURCHASE PRICE
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1.1 AGREEMENT FOR SALE AND PURCHASE. For the consideration and
subject to the terms and conditions herein set forth, and in reliance upon
the representations, warranties, covenants and undertakings herein
contained,
(a) the MGP Seller hereby agrees to sell, transfer, assign,
convey, set over and confirm the MGP Transferred Interest unto the GP Buyer
and the GP Buyer hereby agrees to purchase the said MGP Transferred
Interest from the MGP Seller, free and clear of all liens, claims, charges
or encumbrances of any kind or nature whatsoever other than the terms,
covenants and provisions of the Partnership Agreement and this Agreement;
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(b) the AGP Seller hereby agrees to sell, transfer, assign,
convey, set over and confirm the AGP Transferred Interest unto the GP Buyer
and the GP Buyer hereby agrees to purchase the said AGP Transferred
Interest from the AGP Seller, free and clear of all liens, claims, charges
or encumbrances of any kind or nature whatsoever other than the terms,
covenants and provisions of the Partnership Agreement and this Agreement;
(c) each of the LP Sellers hereby agrees to sell, transfer,
assign, convey, set over and confirm its Transferred Units unto the LP
Buyer and the LP Buyer hereby agrees to purchase the said Transferred Units
from the LP Sellers, free and clear of all liens, claims, charges or
encumbrances of any kind or nature whatsoever other than the terms,
covenants and provisions of the Partnership Agreement and this Agreement;
PROVIDED, HOWEVER, that, if, prior to the Closing (as each is hereinafter
defined), (i) the Partnership shall not have entered into a settlement
agreement with respect to the action commenced by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, on
behalf of himself and all others similarly situated, against each of the ▇▇
▇▇▇▇▇▇▇, NorthStar Capital Investment Corp. and Charbird Enterprises, LLC,
defendants, and the Partnership, as nominal defendant, in the Delaware
Court of Chancery (the "Class Action") or (ii) the limited partners of the
Partnership shall not have received the full amount payable to them in
accordance with the terms of any settlement agreement entered into with
respect to the Class Action, the Sellers shall retain the right to receive
all amounts payable with respect to their respective Transferred Units upon
any payment made to the limited partners of the Partnership following the
Closing in accordance with the terms of any such settlement agreement; and
(d) for purposes hereof, settlement of the Class Action is
only for amounts received from third parties and will not include
distributions of the Partnership's funds.
1.2 PURCHASE PRICE.
(a) TRANSFERRED GP INTERESTS.
(i) In consideration of the sale of the MGP Transferred
Interest, the GP Buyer agrees to pay to the MGP Seller the sum of
Nine Hundred Eighty Thousand Dollars ($980,000).
(ii) In consideration of the sale of the AGP Transferred
Interest, the GP Buyer agrees to pay to the AGP Seller the sum of
Twenty Thousand Dollars ($20,000).
(b) TRANSFERRED UNITS. In consideration of the sale of the
Transferred Units, the LP Buyer agrees to:
(i) pay to each of the LP Sellers for each Transferred Unit
owned by such LP Seller, the sum of (A) Seventy-Five Dollars and
Fifty-Two Cents ($75.52) PLUS (B) an amount equal to the total amount
of accounts receivable of the Partnership, calculated in accordance
with generally accepted accounting principles ("GAAP"), which are
less than 30 days old on the Closing Date (as hereinafter defined),
excluding any amounts owed by High Cash Partners, L.P. ("High Cash")
with respect to the Property (as defined below), divided by 187,919
MINUS (C) an amount equal to the total amount of accounts payable by
the Partnership, calculated in accordance with GAAP, divided by
187,919 PLUS OR MINUS (D) normal prorations MINUS (E) any
distributions received prior to the Closing Date by the Partnership
from High Cash above the normal operating cash flow of High Cash,
divided by 187,919; and
(ii) assign to the LP Sellers all of the LP Buyer's right,
title and interest in and to any distributions paid to the LP Buyer
on account of the Class Action, except the distributions set forth in
Section 3.2(b) hereof.
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(c) PAYMENT. The purchase price payable pursuant to
Sections 1.2(a) and 1.2(b) above shall be paid by the GP Buyer or the LP
Buyer, as the case may be, in cash at the Closing; PROVIDED, HOWEVER, that,
in the event that, prior to the Closing, (i) the Partnership shall not have
entered into a settlement agreement with respect to the Class Action or
(ii) the limited partners of the Partnership shall not have received the
full amount payable to them in accordance with the terms of any settlement
agreement entered into with respect to the Class Action, the Sellers shall
retain the right to receive all amounts payable with respect to their
respective Transferred Units upon any payment made to the limited partners
of the Partnership following the Closing in accordance with the terms of
any such settlement agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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2.1 Each of the Sellers hereby jointly and severally represents and
warrants to the Buyers, and to the successors and assigns of the Buyers, as
follows:
(a) AUTHORITY. The execution, delivery and performance of
each of the LP Seller's obligations and responsibilities under this
Agreement and the sale of each of the LP Seller's Transferred Units by such
LP Seller have been duly and validly authorized and all requisite action
will have been taken as of the Closing Date to make this Agreement valid
and binding upon such LP Seller.
(b) NO BREACH OF OTHER AGREEMENTS. Neither the execution and
delivery of this Agreement by the Seller nor, with respect to the sale of
the GP Transferred Interests and the Transferred Units so long as the
requisite consent of limited partners of the Partnership is obtained, the
performance by such Seller of his or its obligations hereunder will (i)
result in a breach, violation or default by such Seller of any provision of
law or of the Partnership Agreement or of any other agreement or
arrangement to which such Seller or the Partnership is a party including,
but not limited to, any and all documents, agreements and arrangements
between the Partnership and High Cash (the "High Cash Documents"), or (ii)
create or impose (or result in the creation or imposition of) any security
interest, lien or other encumbrance upon, with respect to the MGP Seller,
the MGP Transferred Interest or any part thereof or interest therein, or,
with respect to the AGP Seller, the AGP Transferred Interest or any part
thereof or interest therein, or, with respect to the LP Sellers, the
Transferred Units being transferred by the respective LP Seller or any part
thereof or interest therein.
(c) OWNERSHIP OF SELLERS' INTERESTS AND/OR UNITS. The GP
Transferred Interests are the entire general partnership interests in the
Partnership and are owned by the MGP Seller, with respect to the MGP
Transferred Interest, and the AGP Seller, with respect to the AGP
Transferred Interest, free and clear of all liens, claims, charges or
encumbrances of any kind or nature whatsoever, other than the liabilities
and obligations applicable to the ownership of the general partnership
interests in the Partnership as set forth in the Partnership Agreement and
this Agreement. No other person or entity has any right or interest in the
GP Transferred Interests, or in the income, profits, cash flow or
distribution rights attendant thereto.
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Each of the LP Sellers owns the Transferred Units being
transferred by such LP Seller free and clear of all liens, claims, charges
or encumbrances of any kind or nature whatsoever, other than the
liabilities and obligations applicable to the ownership of the limited
partnership interests in the Partnership as set forth in the Partnership
Agreement and this Agreement. No other person or entity has any right or
interest in any of the Transferred Units, or in the income, profits, cash
flow or distribution rights attendant thereto. Neither of the ▇▇ ▇▇▇▇▇▇▇
owns any units of limited partnership in the Partnership ("Units") and none
of the LP Sellers owns any Units other than the Transferred Units.
(d) LAWS, GOVERNMENTAL ORDERS AND LITIGATION RELATING TO SALE
TRANSACTION. There is no litigation, suit, claim, demand or governmental
or other proceeding, including any bankruptcy or insolvency proceeding,
pending, or to the knowledge of either of the ▇▇ ▇▇▇▇▇▇▇, threatened
against any of the Sellers or the Partnership which in any way relates to
or affects the purchase by either of the Buyers of any of the GP
Transferred Interests or the Transferred Units, as the case may be. With
the exception of the Class Action, neither of the ▇▇ ▇▇▇▇▇▇▇ nor any LP
Seller is a party to any pending or, to any of their knowledge, threatened
litigation which in any way relates to the GP Transferred Interests, the
Transferred Units, the Partnership or its assets. Neither the ▇▇ ▇▇▇▇▇▇▇,
the ▇▇ ▇▇▇▇▇▇▇ nor the Partnership is a party to, subject to or bound by
any agreement or any law, judgment, order, writ, injunction or decree of
any court or governmental body which could prevent or adversely affect in
any manner the carrying out of the sale of the GP Transferred Interests or
the Transferred Units pursuant to this Agreement.
(e) NO RIGHTS TO PURCHASE INTERESTS. No person, firm,
corporation or other entity has any right or option to purchase or
otherwise acquire all or any part of the GP Transferred Interests or the
Transferred Units other than the rights of the Buyers hereunder.
(f) NO THIRD PARTY APPROVALS. Except for the consent of the
requisite percentage of limited partners of the Partnership with respect to
the sale of the MGP Transferred Interest, each of the ▇▇ ▇▇▇▇▇▇▇ and each
of the LP Sellers may transfer and sell its GP Transferred Interests, with
respect to the ▇▇ ▇▇▇▇▇▇▇, and Transferred Units, with respect to the LP
Sellers, as herein contemplated without obtaining the consent or approval
of any person or entity, including any governmental entity.
(g) MEMBER DISTRIBUTIONS. Each of the Sellers has received
all distributions and payments which such Seller is entitled to receive as
of the date of this Agreement pursuant to the provisions of the Partnership
Agreement and this Agreement. Each of the Sellers acknowledges that it has
no claims of any kind or nature against the Partnership except with respect
to (i) its indemnification rights as provided for in the Partnership
Agreement and (ii) any amounts paid or payable to owners of Units in
settlement of the Class Action, including amounts due to the LP Buyer based
on its 10,433 Units, all rights to which the LP Buyer has transferred to
the LP Sellers, and on the Closing Date such Seller will deliver a general
release of any rights or claims against the Partnership, the Buyers and
each of their respective partners, managers, members, agents, officers and
directors, except with respect to its indemnification rights as provided
for under the Partnership Agreement and any payment in connection with the
settlement of the Class Action. Each of the Seller's indemnification
rights discussed herein will be assigned by its percentage ownership in the
Partnership immediately prior to the Closing to the Buyers.
(h) CONTRACTS WITH AFFILIATES. Neither the Partnership nor
either of the ▇▇ ▇▇▇▇▇▇▇ or any LP Seller is a party to any contract,
agreement or understanding, written or oral, with any Affiliate (as defined
in the Partnership Agreement) thereof which affects the Partnership or its
business operations or assets with the exception of the Services Agreement
(as defined below) and the Management Agreement (as defined below).
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(i) NO AMOUNTS PAYABLE TO SELLERS. No amounts are payable to
either of the ▇▇ ▇▇▇▇▇▇▇ by the Partnership pursuant to Section 9.8 of the
Partnership Agreement or to the MGP Seller by the Partnership pursuant to
Sections 17.4 and/or 17.5 of the Partnership Agreement. Each of the ▇▇
▇▇▇▇▇▇▇ hereby waives any and all rights afforded to either or both of them
under Sections 9.8, 17.4 and/or 17.5 of the Partnership Agreement. No
amounts are payable to any of the LP Sellers by the Partnership or either
of the ▇▇ ▇▇▇▇▇▇▇ except with respect to any amount paid in settlement of
the Class Action.
2.2 REPRESENTATIONS AND WARRANTIES OF THE ▇▇ ▇▇▇▇▇▇▇. Each of the
▇▇ ▇▇▇▇▇▇▇, jointly and severally, hereby represents and warrants to the
Buyers, and to the successors and assigns of the Buyers, as follows:
(a) AUTHORITY. The execution, delivery and performance of
each of the GP Seller's obligations and responsibilities under this
Agreement and the sale of such GP Seller's MGP Transferred Interest or AGP
Transferred Interest, as the case may be, have been duly and validly
authorized and all requisite action will have been taken as of the Closing
Date (as defined below) to make this Agreement valid and binding upon such
GP Seller.
(b) ORGANIZATION AND STANDING OF THE PARTNERSHIP. The
Partnership is a limited partnership duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(c) ABSENCE OF UNDISCLOSED LIABILITIES. Except for any
liabilities (i) set forth on EXHIBIT A attached to this Agreement, (ii)
disclosed in the Partnership's public filings with the Securities and
Exchange Commission (the "SEC") and (iii) incurred from and after the date
of this Agreement through the Closing Date in the normal course of the
Partnership's business, to the knowledge of each of the ▇▇ ▇▇▇▇▇▇▇, the
Partnership has and will have, as of the Closing Date, no material
liabilities of any nature, whether accrued, absolute, contingent or
otherwise, nor does either of the ▇▇ ▇▇▇▇▇▇▇ know or have reasonable
grounds to know of the basis for the assertion against the Partnership of
any material liabilities of any nature. All state and federal income
taxes, federal and state withholding taxes, FICA taxes, excise taxes, un-
employment compensation taxes, property taxes, real estate taxes and any
other applicable taxes for which the Partnership is responsible for any
period preceding the Closing Date either have been paid or adequate
provision has currently been made for the payment of the same.
(d) INSURANCE. To the ▇▇ ▇▇▇▇▇▇▇' knowledge, since
January 1, 1999, High Cash has maintained comprehensive general liability
insurance and casualty insurance on the Property (as defined below) in such
amounts and coverages and with the companies as set forth on EXHIBIT B
attached to this Agreement.
(e) LITIGATION. With the exception of the Class Action,
there is currently no action, proceeding or investigation pending or, to
the knowledge of either of the ▇▇ ▇▇▇▇▇▇▇, threatened against the
Partnership before any court or governmental department, commission, board,
agency or instrumentality; nor do either of the ▇▇ ▇▇▇▇▇▇▇ know of any
basis for any such action, proceeding or investigation.
(f) HIGH CASH DOCUMENTS.
(i) NO DEFAULTS. Except as disclosed in documents
which have been filed by the Partnership with the SEC and are
available to the public for inspection or copies of which have been
provided to the Buyers by the ▇▇ ▇▇▇▇▇▇▇, neither of the ▇▇ ▇▇▇▇▇▇▇
is aware of any current or prior default by High Cash with respect to
the mortgage (the "Mortgage") held by the Partnership which is
secured by the Sierra Marketplace shopping center (the "Property") or
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any other High Cash Document. The Partnership holds the Mortgage
free and clear of all liens, claims, charges or encumbrances of any
kind or nature whatsoever. No other person or entity has any right
or interest in the Mortgage or any other High Cash Document.
(ii) NO MODIFICATIONS. None of the High Cash Documents,
including, without limitation, the Modification Agreement, has been
modified or amended in any respect since the delivery of such High
Cash Document by the MGP Seller to the GP Buyer.
(g) FINANCIAL STATEMENTS. The tax returns, balance sheets,
profit and loss statements and other operating statements of the
Partnership for calendar years 1999 and 2000 and the current financial
statement of the Partnership for the period of January 1, 2001 through
June 30, 2001 are true, correct and complete in all material respects.
(h) NO RIGHTS OF INTEGRATED RESOURCES, INC. Notwithstanding
any provision contained in the Partnership Agreement, Integrated Resources,
Inc. has no rights, powers, duties or responsibilities whatsoever with
respect to the Partnership.
(i) TRANSFER OF TRANSFERRED UNITS. The assignment of the
Transferred Units by the LP Sellers is not restricted under Section 12.3 of
the Partnership Agreement.
(j) LEASES. Each lease which is in effect with respect to
any portion of the Property (collectively, the "Leases"), has been
delivered by the MGP Seller to the GP Buyer prior to the date hereof. To
the ▇▇ ▇▇▇▇▇▇▇' knowledge, after a written inquiry to High Cash or Kestrel
Management LP, an affiliate of the Agent ("Kestrel"), each of the Leases is
in full force and effect and no party to any of the Leases is in default
thereunder. No term or condition of any of the Leases has been amended or
modified in any respect since the delivery of such Lease by the MGP Seller
to the GP Buyer.
(k) CONSENT SOLICITATION. All of the information set forth
in the Consent Solicitation Statement (as defined below) relating to the
Partnership or the Sellers, or any of them, is true and correct in all
material respects.
2.3 REPRESENTATIONS AND WARRANTIES OF THE BUYERS. Each of the
Buyers, jointly and severally, hereby represents and warrants to the
Sellers as follows:
(a) ORGANIZATION AND STANDING OF THE BUYERS. The GP Buyer is
a limited liability company, duly organized, validly existing and in good
standing under the laws of the State of Nevada. The LP Buyer is a limited
liability company, duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) AUTHORITY. The execution, delivery and performance of
this Agreement and the purchase of the GP Transferred Interests by the GP
Buyer and the Transferred Units by the LP Buyer have been duly and validly
authorized; all requisite corporate action(s) required to have been taken
by the Buyers will have been taken as of the Closing Date in order to make
this Agreement valid and binding upon the Buyers in accordance with its
terms; and neither such execution, delivery or performance, nor the
consummation of the purchase of the GP Transferred Interests and the
Transferred Units violates any provision of law or the articles of
organization of the GP Buyer or the LP Buyer, respectively.
(c) NO BREACH OF OTHER AGREEMENTS. The execution of this
Agreement and the consummation of the purchase of the GP Transferred
Interests and the Transferred Units will not conflict with, result in a
breach of the terms and conditions of, accelerate any provision of, or
constitute any default under any contract or agreement to which the GP
Buyer or the LP Buyer, respectively, is a party.
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(d) LAWS, GOVERNMENTAL ORDERS AND LITIGATION. Neither of the
Buyers is a party to, subject to or bound by any agreement or any law,
judgment, order, writ, injunction or decree of any court or governmental
body which could prevent or adversely effect the consummation of the
purchase of the GP Transferred Interests, with respect to the GP Buyer, and
the Transferred Units, with respect to the LP Buyer. There is no
litigation, suit, claim, demand or governmental or other proceeding,
including any bankruptcy or insolvency proceeding, pending or, to the
knowledge of either of the Buyers, threatened against either of the Buyers
which relates to or affects the purchase of the GP Transferred Interests,
with respect to the GP Buyer, and the Transferred Units, with respect to
the LP Buyer.
(e) CONSENT SOLICITATION. All of the information set forth
in the Consent Solicitation Statement relating to the Buyers, or either of
them, is true and correct in all material respects.
ARTICLE III
CLOSING
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3.1 TIME AND PLACE FOR CLOSING. Subject to the satisfaction of
each of the conditions precedent herein set forth, the Closing shall be
scheduled by the GP Buyer and shall take place promptly after the requisite
consent of the limited partners of the Partnership has been obtained as
contemplated by Section 4.2 hereof. The date on which the transactions
herein contemplated shall be consummated is herein referred to as the
"Closing Date" and the transactions occurring at that time are herein
referred to as the "Closing".
3.2 CONDITIONS PRECEDENT. The obligations of the Sellers and the
Buyers hereunder shall be conditioned upon the following:
(a) LIMITED PARTNERS CONSENT. The receipt of the consent of
the requisite percentage of limited partners of the Partnership as
contemplated by Section 4.2 hereof.
(b) DISTRIBUTIONS. The distribution by the Partnership,
prior to the Closing Date, of an amount equal to (i) the total amount of
cash held by the Partnership MINUS $500,000 to the general and limited
partners of the Partnership in accordance with the provisions of the
Partnership Agreement regarding distributions and (ii) the total amount
payable to the limited partners of the Partnership based on their
respective Units in connection with any settlement of the Class Action
which has been agreed upon by the parties thereto and approved by the
Delaware Court of Chancery. The parties hereto acknowledge and agree that
the funds distributed pursuant to clause (i) of this Section 3.2(b) include
any obligations imposed on the Partnership pursuant to any settlement of
the Class Action to distribute funds in excess of amounts received by the
Partnership from the other defendants to the Class Action.
(c) ASSIGNMENTS. An Assignment of each of the GP Seller's GP
Transferred Interest, and an Assignment of each of the LP Seller's
Transferred Units, in the form attached to this Agreement as EXHIBIT C.
(d) NOTICE TO HIGH CASH. Notice to High Cash, in the form
prepared by the GP Buyer and approved by the MGP Seller, advising High Cash
of the sale of the GP Transferred Interests to the GP Buyer.
(e) TERMINATION OF SERVICES TO PARTNERSHIP UNDER SERVICES
AGREEMENT. Modification of the Services Agreement (the "Services
Agreement") between Presidio and AP-PCC III, L.P. (the "Agent") such that
the Agent is no longer providing any services whatsoever to the
Partnership.
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(f) ASSIGNMENT OF MANAGEMENT AGREEMENT AND CONSENT TO
ASSIGNMENT. Assignment of the Management Agreement (the "Management
Agreement") between High Cash and Kestrel, by Kestrel to the GP Buyer or an
Affiliate of the GP Buyer and the consent of High Cash to such assignment.
(g) ESTOPPEL CERTIFICATES. Receipt of estoppel certificates,
in form and substance as mutually agreed upon by the GP Buyer and the MGP
Seller, from each tenant of space within the Property listed on EXHIBIT D
attached hereto, identifying such tenant's right to purchase any portion of
the Property at any time or from time to time after the date hereof.
3.3 SELLER'S CLOSING DELIVERIES. At (or, as provided below, after)
the Closing, each respective Seller shall deliver, or cause to be
delivered, to the GP Buyer each of the following instruments, documents or
certificates:
(a) ASSIGNMENT. An Assignment of each of the GP Seller's GP
Transferred Interest, and an Assignment of each of the LP Seller's
Transferred Units, in the form attached to this Agreement as EXHIBIT C.
(b) AFFIDAVIT. An affidavit stating the Seller's tax
identification number and principal business address and that such Seller
is a "United States person" as defined by Internal Revenue Code Section
1445(f)(3) and Section 7701(b).
(c) AMENDMENT TO PARTNERSHIP AGREEMENT. An amendment to the
Partnership Agreement pursuant to which (i) the Seller shall withdraw from
the Partnership as a general partner and/or limited partner, as the case
may be; (ii) the GP Buyer shall be admitted to the Partnership as a
substitute general partner in the place and stead of each of the ▇▇
▇▇▇▇▇▇▇; and (iii) such other amendments that the Buyers and/or the Seller
deems reasonably necessary to effect the intent of the transactions
contemplated hereby.
(d) OTHER DOCUMENTS. Such other documents, instruments or
agreements which the Seller is required to deliver to the GP Buyer
hereunder or which the GP Buyer may, either at or subsequent to the
Closing, deem reasonably necessary or desirable in order to consummate the
transactions contemplated hereby, or better to vest in the GP Buyer title
to the GP Transferred Interests and in the LP Buyer title to the
Transferred Units.
(e) RELEASE. A general release of any rights or claims
against the Partnership, the Buyers and each of their respective partners,
managers, members, agents, officers and directors, except with respect to
claims arising out of this Agreement or any indemnification rights provided
for under the Partnership Agreement and any amounts to be paid to the
Sellers, or any of them, with respect to any distributions to be made by
the Partnership from proceeds of the Class Action settlement.
(f) CLOSING CERTIFICATE. A certificate stating that each of
such Seller's representations and warranties set forth in Section 2.1
and/or Section 2.2 hereof, as the case may be, are true and correct at and
as of the Closing Date.
3.4 MGP SELLER'S CLOSING DELIVERIES. At (or, as provided below,
after) the Closing, the MGP Seller shall deliver, or cause to be delivered,
to the GP Buyer each of the following instruments, documents or
certificates:
(a) AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP. An
amendment to the Certificate of Limited Partnership of the Partnership to
be filed with the Secretary of State of the State of Delaware immediately
following the Closing, which reflects the withdrawal of the ▇▇ ▇▇▇▇▇▇▇ and
the addition of the GP Buyer as the managing general partner and associate
general partner of the Partnership.
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(b) COSTS. A certified check or wire transfer from the
Partnership in the amount of the Transaction Costs (as defined in
Section 8.1 below) incurred by the Buyers.
(c) DOCUMENTS. All documents relating to the Partnership's
loan to High Cash as modified to the date of delivery hereunder.
3.5 BUYER'S DELIVERIES. At or prior to the Closing, the GP Buyer
and the LP Buyer shall deliver, or cause to be delivered, to each of the
Sellers:
(a) PURCHASE PRICE. The full amount of the purchase price
payable to such Seller by such Buyer pursuant to Section 1.2 above which
amount will be paid at such time as each of the conditions precedent to the
Closing have been fulfilled and the Sellers' closing deliveries have been
received by, and deemed acceptable to, the Buyers;
(b) RELEASE. A release of any rights or claims against the
Partnership, the ▇▇ ▇▇▇▇▇▇▇, the LP Sellers and each of their respective
partners, managers, members, agents, affiliates, stockholders, officers and
directors, except with respect to any rights or claims arising out of this
Agreement.
(c) CLOSING CERTIFICATE. A certificate stating that all of
such Buyer's representations and warranties set forth in Section 2.3 hereof
are true and correct at and as of the Closing Date.
3.6 DELIVERY OF RECORDS; BANK ACCOUNTS. At the Closing, the MGP
Seller shall deliver to, or at the direction of the GP Buyer, (a) all
records and books of account relating to the Partnership dating from the
inception of the Partnership to the Closing Date; and (b) such other
financial information in the possession of either of the ▇▇ ▇▇▇▇▇▇▇
relating thereto. In addition, both at and after the Closing, each of the
▇▇ ▇▇▇▇▇▇▇ will cooperate with the GP Buyer in transferring all bank
accounts, or deleting each of the ▇▇ ▇▇▇▇▇▇▇ and their representatives as
authorized signers and adding the GP Buyer's representatives in their
place. Each of the ▇▇ ▇▇▇▇▇▇▇ shall also deliver to, or at the direction
of, the GP Buyer, both prior to or after the Closing, all documents in the
possession of the ▇▇ ▇▇▇▇▇▇▇, or in the possession of either of their
agents, which may be necessary or helpful to the GP Buyer in administering
the affairs of the Partnership after the Closing.
ARTICLE IV
PRE-CLOSING COVENANTS
---------------------
4.1 PARTNERSHIP ACTIONS PRIOR TO CLOSING. Prior to the Closing or
earlier termination of this Agreement, each of the Sellers agrees that it
shall not, except to the extent such action or inaction is required to be
taken in furtherance of its fiduciary duty and notice thereof is given to
the GP Buyer, directly or indirectly,
(a) solicit, initiate or encourage any inquiries or proposals
from, discuss or negotiate with, or provide any non-public information to,
any person (other than the Buyers) relating to any transaction involving
(i) the sale of the business or the assets of the Partnership, (ii) any
merger, consolidation, business combination or similar transaction
involving the Partnership, (iii) the sale, transfer or assignment of the
general partner interests in the Partnership or (iv) the election or
substitution of anyone other than the GP Buyer as a general partner of the
Partnership;
9
(b) without the GP Buyer's prior consent, take any action, or
cause the Partnership to take any action, other than in the normal course
of the Partnership's operations, including, without limitation, (i)
entering into any agreement of any kind, in such Seller's individual
capacity or on behalf of the Partnership, with the Partnership or any
Affiliate of the Partnership or any of the Sellers, (ii) purchasing, in
such Seller's individual capacity or on behalf of the Partnership, any
general or limited partnership interests of the Partnership and (iii)
modifying in any respect the terms of the Mortgage or any other High Cash
Document, the Partnership Agreement or any agreement or understanding in
connection therewith; or
(c) take any action which would cause any of its
representations and warranties to be untrue in any material respect or
which would interfere with its ability to satisfy any condition precedent
to the obligations of the Buyers hereunder.
4.2 CONSENT SOLICITATION. As soon as practicable following the
execution of this Agreement, the ▇▇ ▇▇▇▇▇▇▇ will take any and all actions
as are reasonably required in accordance with the laws of the State of
Delaware and the Federal securities laws to solicit, and will use their
good faith efforts to obtain, the consent of the limited partners of the
Partnership (the "Consent Solicitation") to amending the Partnership
Agreement to facilitate the MGP Seller's sale of the MGP Transferred
Interest to the GP Buyer and the AGP Seller's sale of the AGP Transferred
Interest to the GP Buyer, so that the GP Buyer is substituted for the MGP
Seller as the managing general partner of the Partnership and for the AGP
Seller as the associate general partner of the partnership (the
"Amendment") including, without limitation, preparing and filing with the
SEC a Consent Solicitation Statement in substantially the form attached
hereto as EXHIBIT E to be distributed to each of the limited partners of
the Partnership (the "Consent Solicitation Statement") and timely
responding to comments raised by the SEC with respect thereto.
4.3 COOPERATION IN CONNECTION WITH CONSENT SOLICITATION. The
Buyers and the Sellers shall cooperate with each other with respect to the
Consent Solicitation and the preparation, form and content of the Consent
Solicitation Statement to be distributed to the limited partners of the
Partnership with the intent of obtaining the consent of a majority of the
limited partners to the Amendment. The ▇▇ ▇▇▇▇▇▇▇ will designate the
solicitation agent, subject to the reasonable approval of the Buyers. Each
of the LP Sellers shall vote its Transferred Units in favor of the
Amendment. The Buyers shall be entitled to approve the form and substance
of the Consent Solicitation Statement, the terms and conditions of the
agreement between the Partnership and the solicitation agent and the script
for use by such agent in communicating with limited partners and their
representatives of the Partnership in connection with the Consent
Solicitation. Each of the Buyers and the Sellers covenant and agree that
all information set forth with respect to them in the Consent Solicitation
Statement shall be true and correct in all material respects.
4.4 DISTRIBUTION. Immediately prior to the Closing Date, the ▇▇
▇▇▇▇▇▇▇ agree to cause the Partnership to distribute an amount equal to (i)
the total amount of cash held by the Partnership MINUS $500,000 to the
general and limited partners of the Partnership in accordance with the
provisions of the Partnership Agreement regarding distributions and (ii) if
required pursuant to a settlement of the Class Action, the total amount
payable to the limited partners of the Partnership in accordance with the
terms of any such settlement. The parties hereto acknowledge and agree
that the funds distributed pursuant to clause (i) of this Section 4.4
include any obligations imposed on the Partnership pursuant to any
settlement of the Class Action to distribute funds in excess of amounts
received by the Partnership from the other defendants to the Class Action.
The parties hereto agree that the Buyers may assign their rights to the
distributions described in this Section 4.4 to the Sellers as part of the
consideration to the Sellers for the acquisition of the GP Transferred
Interests and the Transferred Units.
10
4.5 GP SELLER AFFILIATE CONTRACTS. Simultaneously with the
Closing, the ▇▇ ▇▇▇▇▇▇▇ shall deliver to the GP Buyer (a) a written
modification of the Services Agreement between Presidio and the Agent such
that the Agent will not provide any services to the Partnership from and
after the Closing and (b) a written assignment by Kestrel to, or a
subcontract with full indemnification between Kestrel and, the GP Buyer or
its affiliate of Kestrel's right, title and interest in and to the
Management Agreement between High Cash and Kestrel as of the Closing and
written evidence of the consent of High Cash to such assignment or
subcontract.
4.6 NO TAX ELECTION. From the date hereof through the Closing, the
Partnership shall not make any election for tax purposes without the prior
written approval of the GP Buyer.
4.7 LEASES. From the date hereof through the Closing, the
Partnership, its Affiliates and agents, subject to their fiduciary duties,
shall not approve any new lease or extend or modify the terms of any
existing lease, and request High Cash not to enter in any lease or extend
or modify the terms of any existing lease, with respect to any portion of
the Property without the prior written consent of the GP Buyer, which
consent shall not be unreasonably withheld.
ARTICLE V
OTHER AGREEMENTS
----------------
5.1 FAILURE TO OBTAIN LIMITED PARTNER CONSENT. In the event that
the limited partners of the Partnership fail to consent to the Amendment or
the Sellers are unable, after undertaking all commercially reasonable
efforts, to fulfill their obligations pursuant to Section 3.2, the Buyers
and each of their Affiliates who or which owns any Units (the "Buyer
Affiliates") shall be entitled to sell to the MGP Seller or any Affiliate
thereof selected by the MGP Seller, and the MGP Seller or an Affiliate
thereof shall purchase from the Buyers and the Buyer Affiliates, all Units
owned by the Buyers and the Buyer Affiliates at a per Unit purchase price
equal to (a) One Hundred Thirty-One Dollars and Ninety-Eight Cents
($131.98) MINUS (b) any amount paid to the limited partners of the
Partnership based on their respective Units in connection with any
settlement of the Class Action which has been agreed upon by the parties
thereto PLUS (c) the amount set forth in clause (i) of Section 4.4 above
(for purposes of this Section 5.1, the Closing Date referred to in Section
4.4 shall be the Alternative Closing Date) on a per unit basis PLUS (d) an
amount equal to the total amount of accounts receivable of the Partnership
on the Alternative Closing Date, calculated in accordance with GAAP,
excluding any amounts due from High Cash, on a per unit basis. The Buyers
shall provide written notice of the exercise their rights under this
Section 5.1 (the "Exercise Notice") to the MGP Seller within 15 days after
the termination of this Agreement pursuant to Section 7.1(c) hereof and the
MGP Seller or its Affiliate and the Buyers and the Buyer Affiliates shall
arrange for a closing date for such sale (the "Alternative Closing Date")
which shall take place within 30 days after the date of the Exercise Notice
and at which the Buyers and the Buyer Affiliates shall receive payment of
the purchase price for their Units in cash in exchange for all Units owned
by the Buyers and the Buyer Affiliates. In the event of any such sale, the
Buyers and the Buyer Affiliates shall cause all Units owned by them to be
transferred free and clear of all liens and shall deliver to the MGP Seller
or its Affiliate an assignment in form and substance as set forth on
EXHIBIT C attached hereto.
11
5.2 NO ACQUISITION OF UNITS.
(a) Each of the Sellers agrees that it shall not, from and after
the date of this Agreement, purchase or otherwise acquire, directly or
indirectly, any additional Units of the Partnership.
(b) In the event that this Agreement is terminated pursuant to
Section 7.1 hereof, other than as a result of a breach by any Seller
pursuant to Section 7.1(b) hereof, each of the Buyers and their Affiliates
shall not, for a period of three years from the date of termination,
without the prior written consent of the Partnership:
(i) acquire, offer to acquire or agree to acquire, directly
or indirectly, by purchase or otherwise, any voting securities or
direct or indirect rights to acquire any voting securities of the
Partnership;
(ii) make, or in any way participate, directly or indirectly,
in any "solicitation" of "proxies" to vote (as such terms are used in
the rules of the SEC), or seek to advise or influence any person or
entity with respect to the voting of, any voting securities of the
Partnership;
(iii) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions), any
extraordinary transaction involving the Partnership or any of its
securities;
(iv) form, join or in any way participate in a "group" as
defined in Section 13(d)(8) of the Securities Exchange Act of 1934,
as amended, in connection with any of the foregoing items (i) through
(iii);
(v) provide financing in any form whatsoever to any person or
entity for or in connection with any of the foregoing items (i)
through (iv).
5.3 CLASS ACTION.
(a) SETTLEMENT AGREEMENT. The GP Buyer agrees to implement
the terms of any settlement with respect to the Class Action which is
entered into in writing prior to the Closing. In the event that no
settlement has been agreed upon by the parties on the Closing Date, the GP
Buyer agrees to follow the terms of the letter agreement, dated August 21,
2000, with respect to the Class Action which has been entered into by the
MGP Seller in negotiating the terms of a final settlement agreement.
Notwithstanding anything contained in this Section 5.3, the Sellers
acknowledge and agree that the GP Buyer will fulfill its fiduciary
obligations to the limited partners of the Partnership in negotiating and
entering into any final settlement agreement with respect to the Class
Action. In order to facilitate the provisions of this Section 5.3(a), the
GP Seller or its Affiliate shall be admitted as a non-equity special
manager of the GP Buyer (the "Special Manager"), whose only right shall be
to have sole and exclusive authority to settle the Class Action. Upon the
dismissal of the Class Action, the members of the GP Buyer will remove the
Special Manager. The Special Manager shall agree to indemnify the GP Buyer
for any damages resulting from any breach of fiduciary duty by the Special
Manager with respect to the settlement of the Class Action. The Special
Manager shall have no right to bind the GP Buyer or the Partnership with
respect to any issue or matter other than the settlement of the Class
Action. Notwithstanding any other provision contained herein, the ▇▇
▇▇▇▇▇▇▇ will not enter into a settlement agreement with respect to the
Class Action if the Partnership is required to make any settlement payment
unless such proposed payment by the Partnership is agreed to by the GP
Buyer, in its sole and absolute discretion. The parties agree that the ▇▇
▇▇▇▇▇▇▇ have no indemnification rights against the Partnership with respect
to the Class Action.
12
(b) VOTING RIGHTS. If, prior to the Closing, the Partnership
shall not have entered into a settlement agreement with respect to the
Class Action, the LP Sellers shall retain the right to vote their
respective Transferred Units solely upon the terms of any settlement
agreement proposed to be entered into following the Closing.
ARTICLE VI
INDEMNIFICATION
---------------
6.1 INDEMNIFICATION BY THE SELLERS. Each of the Sellers, jointly
and severally, shall hold harmless and indemnify the Buyers and each of the
Buyers' respective members, employees, attorneys, agents and other
Affiliates and the Partnership (the "Buyer Indemnified Parties") from and
against any loss suffered or incurred at any time by either of the Buyers
or any of such Buyer Indemnified Parties and that relates to or arises out
of, or by virtue of, or is connected with:
(a) Any breach by any of the Sellers of any of the
representations or warranties made by such Seller under or in connection
with the Partnership Agreement, this Agreement or the transactions
contemplated by this Agreement, or the nonfulfillment of any covenant or
agreement on the part of such Seller under or in connection with the
Partnership Agreement, this Agreement or the transactions contemplated
under this Agreement; or
(b) Any action, claim, demand or other proceeding asserted
against either of the Buyers or any of the Buyer Indemnified Parties or in
which either of the Buyers or any of the Buyer Indemnified Parties may
become involved on account of an event which occurred prior to the Closing
Date.
6.2 INDEMNIFICATION BY THE BUYERS. Each of the Buyers, jointly and
severally, shall hold harmless and indemnify each of the Sellers and its
respective partners, employees, attorneys, agents and other Affiliates (the
"Seller Indemnified Parties") from and against any loss suffered or
incurred at any time by any of them and that relate to or arise out of, or
by virtue of, or is connected with:
(a) Any breach by either of the Buyers of any of the
representations or warranties made by such Buyer under this Agreement or
the transactions contemplated by this Agreement, or the nonfulfillment of
any covenant or agreement on the part of either of the Buyers under this
Agreement or the transactions contemplated under this Agreement; or
(b) Any action, claim, demand or other proceeding asserted
against any of the Sellers or any of the Seller Indemnified Parties or in
which any of the Sellers or any of the Seller Indemnified Parties may
become involved on account of an event which occurs after the Closing Date.
ARTICLE VII
TERMINATION
-----------
7.1 EVENTS OF TERMINATION. This Agreement shall terminate, as
follows:
(a) upon the mutual written agreement of the MGP Seller and
the GP Buyer;
(b) by either the MGP Seller or the GP Buyer upon the
material breach by any Buyer or Seller, respectively, of its obligations
under this Agreement within 15 days after the non-breaching party has given
written notice of such breach to the other party, which breach has not been
cured; or
13
(c) subject to the provisions of Section 5.1 hereof, upon the
termination of the Consent Solicitation in the event that the requisite
number of limited partners of the Partnership do not consent to the
Amendment.
7.2 EFFECTS OF TERMINATION. In the event of the termination of
this Agreement for any reason except under Section 7.1(b) as a result of a
breach by any Buyer, the MGP Seller shall cause the Partnership to pay to
the GP Buyer all Transaction Costs (as defined in Section 8.1 below)
incurred by the Buyers, by check or wire transfer of immediately available
funds, within 15 days following the MGP Seller's receipt of the GP Buyer's
accounting of the Transaction Costs incurred by it and the LP Buyer. In
the event of the termination of this Agreement under Section 7.1(b) as a
result of a breach by any Seller, the MGP Seller shall cause the
Partnership to pay to the GP Buyer, in addition to the Transaction Costs in
accordance with the preceding sentence, all other legal, accounting and
other fees and expenses incurred by the Buyers through the date of
termination in connection with this Agreement and the purchase of the GP
Transferred Interests and the Transferred Units as contemplated by this
Agreement.
7.3 BUYERS' REMEDIES. Inasmuch as the GP Transferred Interests
cannot readily be purchased or sold in the open market, irreparable damage
could result in the event this Agreement is not specifically enforced.
Accordingly, the rights and obligations of the Buyers under this Agreement
are enforceable in a court of equity by decree of specific performance, and
appropriate injunctive relief may be applied for and granted in connection
with such decree. Such remedy and all other remedies otherwise available
will, however, be cumulative and nonexclusive. In accordance with the
preceding sentences, (a) in the event that the requisite number of limited
partners of the Partnership consent to the Amendment, the Buyers shall be
entitled to a decree by a court of equity that each of the Sellers
specifically perform their obligations under this Agreement by selling
their respective GP Transferred Interests to the GP Buyer or Transferred
Units to the LP Buyer, as the case may be, and (b) in the event that the
requisite number of limited partners of the Partnership do not consent to
the Amendment, the Buyers shall be entitled to a decree by a court of
equity that the MGP Seller specifically perform its obligations under this
Agreement by, upon receipt of notice to such effect from the Buyers,
purchasing all Units owned by the Buyers and their Affiliates in accordance
with the terms of Section 5.1 of this Agreement. In addition, no right or
remedy conferred on or reserved to the Buyers is exclusive of any other
right or remedy available by law or in equity to the Buyers, but each such
remedy is cumulative of every right or remedy available.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 EXPENSES. The Partnership shall be responsible for all fees
and expenses incurred by it, the AGP Seller, the LP Sellers, the GP Buyer
and the LP Buyer in connection with the Consent Solicitation including,
without limitation, all legal, accounting and other fees and expenses
payable by the Buyers and the Sellers in connection therewith (the
"Transaction Costs"). The Transaction Costs shall include, but not be
limited to, all fees and expenses payable to counsel for the Buyers and the
Sellers with respect to the preparation and negotiation of the Consent
Solicitation Statement and all fees and expenses payable to the Agent
retained for purposes of the Consent Solicitation. The MGP Seller
expressly agrees that all of such costs and expenses shall be paid by the
Partnership even if the requisite number of limited partners of the
Partnership do not consent to the Amendment.
14
8.2 NOTICES. Except as otherwise provided in this Agreement, all
notices, demands, requests, consents, approvals and other communications
required or permitted to be given hereunder, or which are to be given with
respect to this Agreement, shall be in writing and shall be deemed
delivered upon personal delivery thereof, or upon delivery by facsimile
electronic transmission (provided an original thereof shall be sent to the
other party via Overnight Courier (as herein defined) after the electronic
transmission), or on the next business day following delivery to a reliable
and recognized air freight or local delivery service ("Overnight Courier"),
or two (2) business days following deposit thereof in the U.S. mail (return
receipt requested), provided any such notices shall be addressed or
delivered to the parties at their respective addresses or facsimile numbers
set forth below:
If to either Buyer: Maxum LLC or Western Real Estate Investments, LL
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to either GP Seller:RAM Funding, Inc or Presidio AGP Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any LP Seller: at the address provided under such LP Seller's
signature on the signature pages attached to
this Agreement
All costs and expenses of delivery shall be borne and paid for by the
delivering party. No notice shall be deemed duly delivered hereunder
unless all postage or delivery charges shall have been prepaid by the
sending party or otherwise delivered to the receiving party free of
delivery charges. Any party shall have the right to change its address for
notice by delivery of a written notice to that effect in the manner herein
provided.
8.3 ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire understanding and agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior understandings or
agreements between the parties with respect to the subject matter hereof.
This Agreement may not be altered, modified, extended, revised or changed,
nor may any party hereto be relieved of any of his or its liabilities or
obligations hereunder, except by written instrument duly executed by each
of the parties hereto. Any such written instrument entered into in
accordance with the provisions of the preceding sentence shall be valid and
enforceable notwithstanding the lack of separate legal consideration
therefor.
8.4 HEADINGS. Section and article headings used herein are for
convenience and ease of reference only and are not intended to have any
legal effect. Accordingly, no reference shall be made to any such article
or section headings for the purpose of interpreting, construing or
enforcing any of the provisions of this Agreement.
8.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which,
when taken together, shall be deemed one Agreement.
15
8.6 TIME OF THE ESSENCE. Time is of the essence of this Agreement.
In the event the parties hereto shall elect to extend the time for
performance, or extend the Closing Date, any such election shall be set
forth in a written instrument, such election shall nevertheless not be
deemed a waiver on the part of either party of time as being of the essence
of this Agreement.
8.7 JOINT AND SEVERAL. All representations, warranties and
agreements of any of the Sellers are made jointly and severally. All
representations, warranties and agreements of either of the Buyers are made
jointly and severally.
8.8 LEGAL ACTION. In any action at law or in equity arising out of
this Agreement, the prevailing party will be entitled to reasonable
attorneys' fees and court costs in addition to any other relief to which it
may be entitled.
8.9 CONTINUING REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Buyers and the Sellers which are set forth in this
Agreement or any instrument executed pursuant to this Agreement are
independent of the other provisions of this Agreement and will survive the
Closing Date or the Alternative Closing Date, the transactions contemplated
by this Agreement and any termination of the same for a period of one year
therefrom.
8.10 ASSIGNMENT. The LP Buyer may assign its rights under this
Agreement to an Affiliate, nominee or related entity, and each of the
Sellers agrees to recognize such assignee as the LP Buyer under this
Agreement.
8.11 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Delaware, without giving effect to the conflicts of law
provisions thereof.
[signature page follows]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
GP BUYER: LP BUYER:
MAXUM LLC WESTERN REAL ESTATE INVESTMENTS, LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------- ------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇
Title: Managing Member Title: Member
MGP SELLER: AGP SELLER:
RAM FUNDING, INC. PRESIDIO AGP CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------- ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President
LP SELLERS:
PRESIDIO CAPITAL INVESTMENT COMPANY LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
PRESIDIO PARTNERSHIP II CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
BIGHORN ASSOCIATES LLC
By: PCIC MANAGER CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
17
EXHIBIT A
LIABILITIES OF THE PARTNERSHIP
$45,531.63 is owed to ▇▇▇▇▇ & Rifkind in connection with the Class Action
together with all other amounts due from time to time to ▇▇▇▇▇ & ▇▇▇▇▇▇▇
with respect to the Class Action.
18
EXHIBIT B
INSURANCE
See attached.
19
EXHIBIT C
FORM OF ASSIGNMENT
See attached.
20
EXHIBIT D
LIST OF TENANTS TO DELIVER ESTOPPEL CERTIFICATES
The Good Guys, Inc.
▇▇▇▇▇ Food & Drug Centers, Inc.
21
EXHIBIT E
FORM OF CONSENT SOLICITATION STATEMENT
See attached.
22