VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of December 7,
1999, by and among ▇▇▇▇▇▇ Partners, L.P., a Delaware limited partnership
("MPLP") in its own capacity and on behalf of each of the ▇▇▇▇▇▇ Partnerships
(other than Regency North Associates, L.P., Fairfax Associates II, Ltd. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ I, L.P.), Regency North Associates, L.P. ("Regency"), Fairfax
Associates II, Ltd. ("Fairfax"), ▇▇▇▇▇▇ Summerhill I, L.P. ("Summerhill"),
▇▇▇▇▇▇ Real Estate Management, Inc., a Delaware corporation ("McREMI"), ▇▇▇▇▇▇
Investors, Inc., a Delaware corporation ("MII"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("RAM"),
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("CJM" and, together with RAM, the "McNeils"), High River
Limited Partnership, a Delaware limited partnership ("High River"), Riverdale
LLC, a New York limited liability company ("Riverdale"), Unicorn Associates
Corporation, a New York corporation ("Unicorn"), ▇▇▇▇▇▇▇▇ Corp., a Delaware
corporation ("▇▇▇▇▇▇▇▇"), and ▇▇▇▇ ▇. Icahn ("CCI" and, together with High
River, Riverdale, Unicorn and ▇▇▇▇▇▇▇▇, the "Securityholders" and, each
individually, a "Securityholder"). (MPLP, the ▇▇▇▇▇▇ Partnerships, McREMI, MII
and the McNeils are hereinafter collectively referred to as the "▇▇▇▇▇▇ Parties"
and, each individually, as a "▇▇▇▇▇▇ Party.")
W I T N E S S E T H:
WHEREAS, on July 8, 1999, a Final Order and Judgment was
entered, pursuant to a settlement, in the consolidated class and derivative
action entitled, ▇▇▇▇▇▇▇▇▇, et al. ▇. ▇▇▇▇▇▇ Partners, L.P., et al., Case No.
BC133799 (hereinafter, the "Class Action");
WHEREAS, the Securityholders opted out of the Class Action
settlement and on July 23, 1999 filed a separate action entitled, High River
Limited Partnership, et al. ▇. ▇▇▇▇▇▇ Partners, L.P., et al., Index No.
99-603526, in the Supreme Court of the State of New York, County of New York,
alleging their individual claims (hereinafter, the "Individual Action") and as
of the date hereof, the Individual Action is pending in the Supreme Court of the
State of New York, County of New York;
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, the Securityholders and the ▇▇▇▇▇▇ Parties are settling the
Individ ual Action by entering into a Settlement Agreement (the "Settlement
Agreement");
WHEREAS, WXI/McN Realty, L.L.C. (the "Company"), the ▇▇▇▇▇▇
Partnerships, MPLP, MII, McREMI, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc. and RAM have
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entered into a Master Agreement, dated as of June 24, 1999 (as the same may be
amended from time to time, the "Master Agreement"), pursuant to which the Com
pany will acquire the ▇▇▇▇▇▇ Partnerships and the assets of McREMI on the terms
and subject to the conditions set forth in the Master Agreement.
NOW, THEREFORE, in consideration of the Securityholders and
the ▇▇▇▇▇▇ Parties executing and delivering the Settlement Agreement, and in
consider ation of the foregoing and the representations, warranties, covenants
and agreements set forth below, the parties to this Agreement, intending to be
legally bound hereby, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person shall mean another Person that
directly or indirectly controls, is controlled by, or is under common control
with, such first Person, where "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
written or verbal agreement, as trustee or executor, or otherwise.
"Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agree ment, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as within the
meaning of Section 13(d)(3) of the Exchange Act.
"Business Day" means any day excluding: Saturday, Sunday and
any day which is in the City of New York a legal holiday or a day upon which
banking institutions in the City of New York are required or authorized by law
or other governmental action to close.
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"CGCL" shall mean the General Corporation Law of the State of
California.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Limited Partnership Units" shall mean units of limited
partnership interest.
"Listed ▇▇▇▇▇▇ Partnerships" means ▇▇▇▇▇▇ Real Estate Fund IX,
Ltd., ▇▇▇▇▇▇ Real Estate Fund X, Ltd., ▇▇▇▇▇▇ Real Estate Fund XI, Ltd., ▇▇▇▇▇▇
Real Estate Fund XIV, Ltd., ▇▇▇▇▇▇ Real Estate Fund XV, Ltd., ▇▇▇▇▇▇ Real Estate
Fund XX, L.P., ▇▇▇▇▇▇ Real Estate Fund XXIV, L.P., ▇▇▇▇▇▇ Real Estate Fund XXV,
L.P., ▇▇▇▇▇▇ Real Estate Fund XXVI, L.P. and ▇▇▇▇▇▇ Real Estate Fund XXVII, L.P.
"Minimum Amount" shall mean, with respect to a class of LP
Interests in a Listed ▇▇▇▇▇▇ Partnership, the amount set forth with respect to
such class of LP Interests opposite the name of such Listed ▇▇▇▇▇▇ Partnership
under the column heading "Minimum Amount" on Annex C hereto.
"Person" shall mean an individual, corporation, partnership,
limited partnership, limited liability company, syndicate, trust, association,
unincorporated organization, governmental entity, political subdivision, or an
agency or instrumen tality of a governmental entity.
"Per Unit Aggregate Amount" shall mean, with respect to a
class of LP Interests in a ▇▇▇▇▇▇ Partnership, an amount equal to the sum of (i)
the per unit merger consideration for an LP Interest in such class and (ii) the
applicable portion of the Excess Cash Balance of such ▇▇▇▇▇▇ Partnership to be
distributed to an LP Interest in such class.
"Subsidiary" of a specified Person shall mean an Affiliate
controlled by such Person directly, or indirectly through one or more
intermediaries, where "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by written or verbal
agreement, as trustee or executor, or otherwise.
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Section 1.2 Definitions from Master Agreement. Capitalized
terms used but not otherwise defined herein and which are defined in the Master
Agree ment shall have the meanings ascribed to them in the Master Agreement (in
each case, as in effect on the date hereof, except as expressly provided to the
contrary herein or in the Settlement Agreement).
Section 1.3 Interpretation.
(a) The parties have participated jointly in the
negotiation and drafting of this Agreement. Consequently, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
(b) When a reference is made in this Agreement to a
section, article, paragraph, clause, annex or exhibit, such reference shall be
to a reference to this Agreement unless otherwise clearly indicated to the
contrary. The descriptive article and section headings herein are intended for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limita tion." The words "hereof," "herein,"
"herewith" and "hereto" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement. The meaning assigned to each term used
in this Agreement shall be equally applicable to both the singular and the
plural forms of such term, and words denoting any gender shall include all
genders. Where a word or phrase is defined herein, each of its other grammatical
forms shall have a corresponding meaning. Any reference in this Agreement to an
Article or Section of the Master Agreement shall apply to said Article or
Section, as the case may be, as in effect on the date hereof or any similar or
comparable provi sion of the Master Agreement if such Article or Section, as the
case may be, is amended from time to time.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SECURITYHOLDERS
Each Securityholder jointly and severally represents and
warrants to each ▇▇▇▇▇▇ Party as follows:
Section 2.1 Oral Representations, Mistake of Fact or Law.
(a) No party (nor any director, officer, agent,
partner, equity holder, member, controlling person, employee, representative, or
attorney of or for any party), has made any statement or representation or
failed to make any statement or representation to any Securityholder regarding
any fact relied upon in entering into this Agreement, and each Securityholder
does not rely upon any statement, represen tation, omission or promise of any
other party (or of any director, officer, agent, partner, equity holder, member,
controlling person, employee, representative, or attorney for any other party),
in executing this Agreement, except as expressly stated in this Agreement.
(b) In entering into this Agreement, each
Securityholder assumes the risk of any misrepresentation, concealment or
mistake, other than written misrepresentations made to such Securityholder by
any other party or parties in this Agreement. If any Securityholder should
subsequently discover that any fact relied upon by it in entering into this
Agreement was untrue, or that any fact was concealed from it, or that its
understanding of the facts or of the law was incorrect (except, in each such
case, for any matter expressly misrepresented in writing in this Agreement to
such Securityholder by any other party or parties), such Securityholder shall
not be entitled to any relief in connection therewith including, without
limiting the generality of the foregoing, any alleged right or claim to set
aside or rescind this Agreement.
Section 2.2 Ownership of Securities.
(a) Such Securityholder is the record and Beneficial
Owner of the Limited Partnership Units in the ▇▇▇▇▇▇ Partnerships set forth on
Annex A hereto opposite the name of such Securityholder (such Limited
Partnership Units, collectively, the "Existing Securities"). On the date hereof,
the Existing Securities constitute all of the Limited Partnership Units in the
▇▇▇▇▇▇ Partnerships owned of record or Beneficially Owned by such
Securityholder. Except as set forth on Annex A hereto, such Securityholder has
sole voting power and sole power to enter into the
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agreements set forth in Article IV hereof, sole power of disposition, sole power
of conversion, sole power to demand dissenters' or appraisal rights (if any) and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Existing Securities of such Securityholder with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Except as set forth on Annex A hereto, no
Affiliate, Subsidiary, officer, director, partner, member, equity holder or
controlling person of such Securityholder Beneficially Owns any Limited
Partnership Units in any of the ▇▇▇▇▇▇ Partnerships.
Section 2.3 Power; Binding Agreement. Such Securityholder
has the legal capacity, power and authority to enter into and perform all of
such Securityholder's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Securityholder will not violate any
other agreement to which such Securityholder is a party including, without
limitation, any voting agreement, proxy arrangement, pledge agreement,
shareholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by such Securityholder and constitutes a valid and
binding agreement of such Securityholder, enforceable against such
Securityholder in accordance with its terms. There is no beneficiary or holder
of a voting trust certificate or other interest of any trust of which such
Securityholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Securityholder of the
transactions contemplated by this Agreement.
Section 2.4 No Conflicts. No filing with, and no permit,
authoriza tion, consent or approval of, any Governmental Entity for the
execution of this Agreement by such Securityholder and the consummation by such
Securityholder of the transactions contemplated by this Agreement, and none of
the execution and delivery of this Agreement by such Securityholder, the
consummation by such Securityholder of the transactions contemplated by this
Agreement or compliance by such Securityholder with any of the provisions of
this Agreement shall (i) conflict with or result in any breach of any
organizational documents of any Securityholder, (ii) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancella tion,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obliga tion of any kind to which any Securityholder is a party or by which
any
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Securityholder or any of its properties or assets may be bound, or (iii) violate
any order, writ, injunction, decree, judgment, order, statute, arbitration
award, rule or regulation applicable to any Securityholder or any of its
properties or assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ▇▇▇▇▇▇ PARTIES
Each of the ▇▇▇▇▇▇ Parties jointly and severally represents
and warrants to the Securityholders as follows:
Section 3.1 Power; Binding Agreement. Each of the ▇▇▇▇▇▇
Parties has the legal capacity, power and authority to enter into and perform
all of such party's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such ▇▇▇▇▇▇ Party will not violate any
other agreement to which such ▇▇▇▇▇▇ Party is a party including, without
limitation, any voting agreement, proxy arrangement, pledge agreement,
shareholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by such ▇▇▇▇▇▇ Party and constitutes a valid and binding
agreement of such ▇▇▇▇▇▇ Party enforceable against such ▇▇▇▇▇▇ Party in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such ▇▇▇▇▇▇ Party is a
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such ▇▇▇▇▇▇ Party of the transactions
contemplated by this Agreement.
Section 3.2 No Conflicts. No filing with, and no permit,
authoriza tion, consent or approval of, any Governmental Entity for the
execution of this Agreement by such ▇▇▇▇▇▇ Party and the consummation by such
▇▇▇▇▇▇ Party of the transactions contemplated by this Agreement, and none of the
execution and delivery of this Agreement by such ▇▇▇▇▇▇ Party the consummation
by such ▇▇▇▇▇▇ Party of the transactions contemplated by this Agreement or
compliance by such ▇▇▇▇▇▇ Party with any of the provisions of this Agreement
shall (i) conflict with or result in any breach of any organizational documents
of any ▇▇▇▇▇▇ Party (ii) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
any ▇▇▇▇▇▇ Party is a party or by which any ▇▇▇▇▇▇ Party or any of its
7
properties or assets may be bound, or (iii) violate any order, writ, injunction,
decree, judgment, order, statute, arbitration award, rule or regulation
applicable to any ▇▇▇▇▇▇ Party or any of its properties or assets.
Section 3.3 Oral Representations, Mistake of Fact or Law.
(a) No party (nor any director, officer, agent,
partner, equity holder, member, controlling person, employee, representative, or
attorney of or for any party), has made any statement or representation or
failed to make any statement or representation to any ▇▇▇▇▇▇ Party regarding any
fact relied upon in entering into this Agreement, and each ▇▇▇▇▇▇ Party does not
rely upon any statement, representa tion, omission or promise of any other party
(or of any director, officer, agent, partner, equity holder, member, controlling
person, employee, representative, or attorney for any other party), in executing
this Agreement, except as expressly stated in this Agreement.
(b) In entering into this Agreement, each ▇▇▇▇▇▇
Party assumes the risk of any misrepresentation, concealment or mistake, other
than written misrepresentations made to such ▇▇▇▇▇▇ Party by any other party or
parties in this Agreement. If any ▇▇▇▇▇▇ Party should subsequently discover that
any fact relied upon by it in entering into this Agreement was untrue, or that
any fact was concealed from it, or that its understanding of the facts or of the
law was incorrect (except, in each such case, for any matter expressly
misrepresented in writing in this Agreement to such ▇▇▇▇▇▇ Party by any other
party or parties), such ▇▇▇▇▇▇ Party shall not be entitled to any relief in
connection therewith including, without limiting the generality of the
foregoing, any alleged right or claim to set aside or rescind this Agreement.
ARTICLE IV
VOTING AGREEMENT, GRANT OF IRREVOCABLE PROXY
Section 4.1 Voting Agreement. Each Securityholder shall, at
any meeting of the limited partners of any ▇▇▇▇▇▇ Partnership, however such
meeting is called and regardless of the purpose for which such meeting is
called, or in connec tion with any written consent of the limited partners of
any ▇▇▇▇▇▇ Partnership, vote all of the Limited Partnership Units in such ▇▇▇▇▇▇
Partnership that are held of record by such Securityholder: (i) in favor of the
approval of the Master Agreement, the terms thereof and the transactions
contemplated thereby, including without
8
limitation, the Merger in respect of such ▇▇▇▇▇▇ Partnership, the MPLP Contribu
tions with respect to such ▇▇▇▇▇▇ Partnership, the appointment of the applicable
New GP LLC as the successor general partner of such ▇▇▇▇▇▇ Partnership, the
other transactions contemplated by the Master Agreement with respect to such
▇▇▇▇▇▇ Partnership and any other transactions contemplated by the Master
Agreement or the other Transaction Documents which require approval of the
limited partners of such ▇▇▇▇▇▇ Partnership; and (ii) against any Acquisition
Proposal and against any action or written or verbal agreement that would
impede, frustrate, prevent or nullify this Agreement, the Settlement Agreement
or the Master Agreement, or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of Sellers under
the Master Agreement or which would result in any one or more of the conditions
set forth in Sections 8.1, 8.2 and 8.3 of the Master Agree ment not being
satisfied. Notwithstanding the foregoing, it is understood that the obligation
of the Securityholders with respect to the voting of 100,000 Limited Partnership
Units in ▇▇▇▇▇▇ Real Estate Fund XXVII, L.P. ("Fund XXVII") Benefi cially Owned
by the Securityholder but held of record by the Resolution Trust Corporation
("RTC") or the Federal Deposit Insurance Corporation ("FDIC") shall be as set
forth in the proviso at the end of Section 4.3(a) hereof.
Section 4.2 No Inconsistent Arrangements. Each Securityholder
hereby covenants and agrees that it shall not, and it shall cause its Affiliates
and Subsidiaries not to, other than pursuant to the transactions contemplated by
the Master Agreement (i) transfer (which term shall include, without limitation,
any sale, gift, pledge, assignment, hypothecation, exchange or other
disposition), or consent to any transfer of, any or all of the Limited
Partnership Units Beneficially Owned by such Securityholder or its Affiliates or
Subsidiaries, in any of the ▇▇▇▇▇▇ Partner ships or any interest therein, (ii)
enter into any contract, option or other written or verbal agreement or
understanding with respect to any transfer of any or all of such Limited
Partnership Units or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to such Limited
Partner ship Units, (iv) deposit such Limited Partnership Units into a voting
trust or enter into a voting agreement or arrangement with respect to such
Limited Partnership Units, or (v) take any other action that would in any way
restrict, limit or interfere with the performance of its obligations under this
Agreement, the Settlement Agreement or any of the transactions contemplated by
this Agreement, the Settlement Agreement, the Master Agreement or the other
Transaction Documents.
Section 4.3 Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) Each Securityholder hereby irrevocably grants to,
and appoints, RAM, ▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, each in his or her capacity
as an officer of MII, and any individual who shall hereafter succeed to any such
office of MII, and each of them individually, such Securityholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Securityholder to vote all of the Limited Partnership Units
Beneficially Owned by such Securityholder, its Affiliates and Subsidiaries in
any of the ▇▇▇▇▇▇ Partner ships: (A) in favor of the approval of the Master
Agreement, the terms thereof and the transactions contemplated thereby,
including without limitation, the Merger in respect of such ▇▇▇▇▇▇ Partnership,
the MPLP Contributions with respect to such ▇▇▇▇▇▇ Partnership, the appointment
of the applicable New GP LLC as the successor general partner of such ▇▇▇▇▇▇
Partnership, the other transactions contemplated by the Master Agreement with
respect to such ▇▇▇▇▇▇ Partnership and any other transactions contemplated by
the Master Agreement or the other Transaction Docu ments which require approval
of the limited partners of such ▇▇▇▇▇▇ Partnership; and (B) against any
Acquisition Proposal and against any action or written or verbal agreement that
would impede, frustrate, prevent or nullify this Agreement, the Settlement
Agreement or the Master Agreement, or result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of
Sellers under the Master Agreement or which would result in any one or more of
the conditions set forth in Sections 8.1, 8.2 and 8.3 of the Master Agreement
not being satisfied; provided however, it is understood that no proxy is granted
with respect to Limited Partnership Units in Fund XXVII Beneficially Owned by
the Securityholders but held of record by the RTC or the FDIC but rather, such
Limited Partnership Units shall be voted by RTC or FDIC at the direction of the
applicable Securityholder and the applicable Securityholder shall direct RTC or
FDIC to vote such Limited Partner ship Units in such manner, but such
Securityholder shall have no liability for RTC's or FDIC's failure to vote such
Limited Partnership Units in the manner directed by the applicable
Securityholder.
(b) Each Securityholder hereby jointly and severally
represents and warrants to each ▇▇▇▇▇▇ Party that any proxies heretofore given
by any Person in respect of any or all of the Limited Partnership Units
Beneficially Owned by such Securityholder or its Affiliates or Subsidiaries in
any of the ▇▇▇▇▇▇ Partner ships are not irrevocable, and that any such proxies
are hereby revoked.
(c) Each Securityholder hereby affirms that the proxy
set forth in this Section 4.3 is given to secure the performance of the duties
of such Securityholder under this Agreement, in accordance with Section 705(e)
of the CGCL. Each Securityholder hereby further affirms that the proxy is
coupled with an
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interest and may under no circumstances be revoked. Each Securityholder hereby
ratifies and confirms any and all actions that such proxy may lawfully do or
cause to be done by virtue hereof. Such proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 705 of the CGCL.
Section 4.4 Stop Transfer. Each Securityholder shall not
request that the ▇▇▇▇▇▇ Partnerships register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of its
Existing Securities, unless such transfer is made in compliance with this
Agreement. In the event of any dividend or distribution consisting of
securities, or any change in the capital structure of any ▇▇▇▇▇▇ Partnership by
reason of any non-cash dividend, split-up, recapitaliza tion, combination,
exchange of securities or the like, the term "Existing Securities" shall refer
to and include the Existing Securities as well as all such dividends and
distributions of securities and any securities into which or for which any or
all of the Existing Securities may be changed or exchanged.
Section 4.5 Dissenters' Rights. By virtue of its execution of
this Agreement, each Securityholder hereby irrevocably waives any and all rights
it may have to assert any dissenters' rights, appraisal rights or other similar
rights granted under the provisions of Article 7.6 of the California Revised
Limited Partnership Act or any similar or successor statute, law, rule or
regulation (collectively, the "Rights") with respect to the Merger in respect of
any ▇▇▇▇▇▇ Partnership, the MPLP Contribu tions with respect to any ▇▇▇▇▇▇
Partnership, the appointment of the applicable New GP LLC as the successor
general partner of any ▇▇▇▇▇▇ Partnership, the other transactions contemplated
by the Master Agreement with respect to any ▇▇▇▇▇▇ Partnership and any other
transactions contemplated by the Master Agreement or the other Transaction
Documents.
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ARTICLE V
NO SOLICITATION; STANDSTILL
Each Securityholder agrees, for a period commencing as of the
date of this Agreement and ending on the third anniversary of the date of this
Agreement, as follows:
Section 5.1 No Solicitation. Each Securityholder hereby agrees
that neither such Securityholder nor any of its Affiliates or Subsidiaries shall
(and such Securityholder shall cause the officers, directors, partners, members,
equity holders, controlling persons, employees, representatives and agents of
such Securityholder, its Affiliates and Subsidiaries, including, but not limited
to, investment bankers, attorneys and accountants who are acting as agents or
representatives of any such Securityholder, Affiliate or Subsidiary, not to),
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any Person
(other than any ▇▇▇▇▇▇ Party or any of their representa tives) concerning any
Acquisition Proposal. Each Securityholder shall (and such Securityholder shall
cause the officers, directors, partners, members, equity holders, controlling
persons, employees, representatives and agents of such Securityholder, its
Affiliates and Subsidiaries, including, but not limited to, investment bankers,
attorneys and accountants who are acting as agents or representatives of any
such Securityholder, Affiliate or Subsidiary, to) immediately cease any existing
activities, discussions or negotiations with any Persons conducted heretofore
with respect to any Acquisition Proposal.
Section 5.2 Standstill. Each Securityholder agrees that neither
it nor any Person who is an Affiliate or Subsidiary of such Securityholder
shall, without the prior written consent of MPLP, (i) in any manner, acquire,
attempt to acquire or make an offer or seek to make an offer with respect to, or
a proposal to acquire, directly or indirectly, any securities or property of any
of the entities listed on Annex B hereto (collectively, the "▇▇▇▇▇▇ Entities"),
(ii) propose to enter into, directly or indirectly, any merger or business
combination involving any of the ▇▇▇▇▇▇ Entities or to purchase, directly or
indirectly, any of the assets of any of the ▇▇▇▇▇▇ Entities, (iii) make, or in
any way participate, directly or indirectly, in any "solicitation" of "proxies"
(as such terms are used in the proxy rules of the Securities and Exchange
Commission) to vote, or seek to advise or influence any Person with respect to
the voting of any voting securities of any of the ▇▇▇▇▇▇ Entities, (iv) form,
join or otherwise participate in a "group" (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to any voting securities of the
▇▇▇▇▇▇ Entities, (v)
12
otherwise act, alone or in concert with others, to seek to control or influence
the management, Board of Directors of the corporate general partner of any of
the ▇▇▇▇▇▇ Entities or policies of any of the ▇▇▇▇▇▇ Entities, (vi) loan money
to, advise, assist or encourage any Person in connection with any of the actions
described in this sentence, or (vii) disclose any intention, plan or arrangement
inconsistent with the foregoing. Notwithstanding the foregoing, after the
Closing, (a) "▇▇▇▇▇▇ Entity" shall mean: (i) any entity listed on Annex B hereto
that is not acquired, directly or indirectly, by the Company at the Closing, but
only so long as such entity is wholly-owned, directly or indirectly, by any one
or more of RAM, CJM, MPLP, McREMI or MII (provided, in the case of MPLP, McREMI
or MII, that such entity is wholly-owned, directly or indirectly, by RAM and/or
CJM) and (ii) WXI/MNL Real Estate, L.L.C. ("Real Estate, L.L.C."), but only so
long as there is no change in control of Real Estate, L.L.C. and (b) subject to
clause (a) above, the provisions of this Section 5.2 shall apply only to actions
taken or proposals made by any Securityholder or any Affiliate or Subsidiary
thereof, with respect to (1) Real Estate, L.L.C., the Company, each of their
respective Subsidiaries formed for the purpose of engaging in the transactions
contemplated by the Master Agreement, and entities in which one or more of the
▇▇▇▇▇▇ Parties (or their Subsidiary partnerships or corporations) have a direct
or indirect interest immediately prior to the Closing and (2) assets in which
one or more of the ▇▇▇▇▇▇ Parties (or their Subsidiary partnerships or
corporations) have a direct or indirect interest immediately prior to the
Closing.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Survival.
(a) Except as provided by Article V and Sections
6.1(b), 6.1(c) and 6.1(d) hereof, the representations, warranties, covenants and
agreements of the parties contained in this Agreement shall remain in full force
and effect indefinitely.
(b) The rights and obligations of the parties hereto
contained in Articles IV and V of this Agreement with respect to a particular
▇▇▇▇▇▇ Partnership (and each Subsidiary corporation and Subsidiary partnership
thereof) shall terminate if and when such ▇▇▇▇▇▇ Partnership becomes an Excluded
▇▇▇▇▇▇ Partnership through the operation of Section 9.3 of the Master Agreement,
it being understood that within 3 Business Days after the date of any ▇▇▇▇▇▇
Party's receipt or delivery of
13
notice pursuant to such Section 9.3, such ▇▇▇▇▇▇ Party will deliver a copy of
such notice to the Securityholders.
(c) In the case of a Listed ▇▇▇▇▇▇ Partnership only,
the Securityholders shall have the right to terminate the rights and obligations
of the parties hereto contained in Articles IV and V of this Agreement with
respect to such Listed ▇▇▇▇▇▇ Partnership (and each Subsidiary corporation and
Subsidiary partner ship thereof) if the definitive Proxy Statement, any Proxy
Statement supplement or any press release announcing a reduction in the Per Unit
Aggregate Amount (or a reduction in the estimate thereof) payable with respect
to a class of LP Interests in such Listed ▇▇▇▇▇▇ Partnership provides that the
Per Unit Aggregate Amount payable (or estimated to be payable) with respect to
such class of LP Interests in such Listed ▇▇▇▇▇▇ Partnership is less than the
Minimum Amount with respect to such class of LP Interests in such Listed ▇▇▇▇▇▇
Partnership. To terminate such rights and obligations pursuant to this
provision, the Securityholders shall deliver a notice to the ▇▇▇▇▇▇ Parties
within 10 Business Days after the date of the applicable definitive Proxy
Statement, or Proxy Statement supplement or the date a copy of such press
release is furnished to them pursuant to Section 6.1(f) hereof; failure to give
such notice within such time frame shall be deemed a waiver of the right to
terminate the rights and obligations of the parties hereto contained in Articles
IV and V of this Agreement with respect to such Listed ▇▇▇▇▇▇ Partnership
pursuant to this Section 6.1(c).
(d) The covenants and agreements contained in this
Agreement shall terminate in their entirety on the date which is the earliest to
occur of: (i) June 30, 2000, in the event that the Closing shall not have
occurred on or prior to June 30, 2000; (ii) the termination of the Master
Agreement pursuant to Section 9.1 thereof; and (iii) the termination of the
Master Agreement with respect to the last Participat ing ▇▇▇▇▇▇ Partnership
pursuant to Section 9.3 thereof.
(e) The parties hereto acknowledge and agree that the
termination of the rights and obligations of the parties hereto contained in
Articles IV and V of this Agreement with respect to a particular ▇▇▇▇▇▇
Partnership shall in no way affect the rights or obligations of any party hereto
with respect to any other ▇▇▇▇▇▇ Partnership.
(f) MPLP hereby agrees that it will promptly issue a
press release and furnish a copy thereof to the Securityholders if, at any time
subsequent to the date of the definitive Proxy Statement with respect to a
Listed ▇▇▇▇▇▇ Partner ship, the Per Unit Aggregate Amount (or the estimate
thereof) payable with respect
14
to a class of LP Interests in such Listed ▇▇▇▇▇▇ Partnership is reduced to an
amount less than the Minimum Amount with respect to such class of LP Interests
in such Listed ▇▇▇▇▇▇ Partnership.
Section 6.2 Specific Performance. Each Securityholder
recognizes and agrees that if for any reason any of the provisions of this
Agreement are not per formed by such Securityholder in accordance with their
specific terms or are other wise breached, immediate and irreparable harm or
injury would be caused to MPLP for which money damages would not be an adequate
remedy. Accordingly, each Securityholder agrees that, in addition to any other
available remedies, MPLP shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement without
the necessity of MPLP posting a bond or other form of security. In the event
that any action should be brought in equity to enforce the provisions of this
Agreement, each Securityholder agrees that it will not allege, and each
Securityholder hereby waives the defense, that there is an adequate remedy at
law.
Section 6.3 Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
delivered personally, sent by overnight courier (providing proof of delivery or
refusal of delivery) to the parties or sent by telecopy (providing confirmation
of transmission) at the following addresses or telecopy numbers (or at such
other address or telecopy number for a party as shall be specified by like
notice):
If to any Securityholder, to:
High River Limited Partnership
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Icahn
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Shalov & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
15
If to any ▇▇▇▇▇▇ Party, to:
▇▇▇▇▇▇ Partners, L.P.
c/o ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇ Partners, L.P.
c/o ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
All notices shall be deemed given only when actually received. The parties to
this Agreement agree that the provision of notice pursuant to this Section 6.3
shall constitute notice for service of any writ, process or summons in any suit,
action or other proceeding.
Section 6.4 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 6.5 Attorneys' Fees. If any action at law or equity,
including an action for declaratory relief, is brought to enforce or interpret
any provision of this
16
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and expenses from the other party, which fees and expenses shall
be in addition to any other relief which may be awarded.
Section 6.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCI PLES
OF CONFLICTS OF LAWS THEREOF.
Section 6.7 Entire Agreement; No Third Party Beneficiaries.
This Agreement, the Settlement Agreement and the Letter Agreement, dated as of
the date hereof among the parties hereto, constitute the entire agreement and
supersede all prior agreements and understandings, both written and verbal,
among the parties hereto or any of them with respect to the subject matter
hereof. This Agreement is not intended to confer upon any Person (other than the
parties to this Agreement and the ▇▇▇▇▇▇ Entities) any rights or remedies
whatsoever.
Section 6.8 Consent to Jurisdiction. Each of the parties hereto
irrevocably and unconditionally submits to the exclusive jurisdiction of the
court where the Individual Action was filed, in any action arising out of the
enforcement of this Agreement. In any such action, suit or other proceeding,
each of the parties hereto irrevocably and unconditionally waives and agrees not
to assert by way of motion, as a defense or otherwise any claims that it is not
subject to the jurisdiction of the above court, that such action or suit is
brought in an inconvenient forum or that the venue of such action, suit or other
proceeding is improper. Each of the parties hereto also agrees that any final
and unappealable judgment against a party hereto in connection with any such
action, suit or other proceeding shall be conclusive and binding on such party
and that such award or judgment may be enforced in any court of competent
jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the
fact and amount of such award or judgment.
Section 6.9 Assignment; Binding Agreement. Neither this
Agreement nor any of the rights, interests or obligations under this Agreement
shall be assigned \or delegated, in whole or in part, by operation of law or
otherwise by any of the parties without the prior written consent of the other
parties. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns. This Agreement shall inure to the benefit of,
and be enforceable by, the parties hereto and (if and to the extent the prior
written consent of the other parties hereto to such
17
succession or assignment has been obtained pursuant to the first sentence of
this Section 6.9), their respective successors and assigns. Notwithstanding this
Section 6.9, after the Effective Time, this Agreement shall inure to the benefit
of, and be enforceable by, the Company and its Affiliates so long as the Company
and any such affiliate is an Affiliate of The ▇▇▇▇▇▇▇ Sachs Group, Inc.
Section 6.10 Amendment, Modification and Waiver. This Agreement
may not be amended, modified or waived except by an instrument or instruments in
writing signed and delivered on behalf of the party hereto against whom such
amendment, modification or waiver is sought to be entered.
Section 6.11 Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to the other parties hereto.
* * * * *
18
IN WITNESS WHEREOF, the parties hereto have executed this
Voting Agreement as of the day and year first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ PARTNERS, L.P.,
in its own capacity and on behalf of each of the
▇▇▇▇▇▇ Partnerships (other than Regency
North, Fairfax and Summerhill)
By: ▇▇▇▇▇▇ Investors, Inc.,
its General Partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
▇▇▇▇▇▇ INVESTORS, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
19
▇▇▇▇▇▇ REAL ESTATE MANAGEMENT, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman of the Board
REGENCY NORTH ASSOCIATES, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
FAIRFAX ASSOCIATES II, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
▇▇▇▇▇▇ SUMMERHILL I, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman of the Board
20
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale LLC,
its General Partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
RIVERDALE LLC
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
UNICORN ASSOCIATES CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇ CORP.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇ ▇. Icahn
▇▇▇▇ ▇. Icahn
21
ANNEX A
Number of Limited Partnership Units Beneficially Owned
Securityholder ▇▇▇▇▇▇ Partnership
Sole Shared Sole Shared
Voting Voting Dispositive Dispositive
Total Units Power Power Power Power
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund IX, Ltd. 13,088 13,088 0 13,088 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund X, Ltd. 9,539 9,539 0 9,539 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XI, Ltd. 16,418.67 16,418.67 0 16,418.67 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XIV, Ltd. 10,105 10,105 0 10,105 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XV, Ltd. 9,761 9,761 0 9,761 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XX, L.P. 5,084.938 5,084.938 0 5,084.938 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XXIV, L.P. 2,988 2,988 0 2,988 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XXV, L.P. 6,674,690 6,674,690 0 6,674,690 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XXVI, L.P. 810,457 810,457 0 810,457 0
High River Limited Partnership ▇▇▇▇▇▇ Real Estate Fund XXVII, L.P. 79,887 79,887 100,000 79,887 100,000
A-1
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund IX, Ltd. 13,088 0 13,088 0 13,088
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund X, Ltd. 9,539 0 9,539 0 9,539
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XI, Ltd. 16,418.67 0 16,418.67 0 16,418.67
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XIV, Ltd. 10,105 0 10,105 0 10,105
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XV, Ltd. 9,761 0 9,761 0 9,761
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XX, L.P. 5,084.938 0 5,084.938 0 5,084.938
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XXIV, L.P. 2,988 0 2,988 0 2,988
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XXV, L.P. 6,674,690 0 6,674,690 0 6,674,690
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XXVI, L.P. 810,457 810,457 0 810,457 0
Riverdale LLC ▇▇▇▇▇▇ Real Estate Fund XXVII, L.P. 179,887 79,887 100,000 79,887 100,000
A-2
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund IX, Ltd. 15,616 0 15,616 0 15,616
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund X, Ltd. 11,836 0 11,836 0 11,836
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XI, Ltd. 18,621.67 0 18,621.67 0 18,621.67
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XIV, Ltd. 10,631 0 10,631 0 10,631
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XV, Ltd. 10,587 0 10,587 0 10,587
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XX, L.P. 6,486.372 0 6,486.372 0 6,486.372
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XXIV, L.P. 3,648 0 3,648 0 3,648
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XXV, L.P. 7,534,383 0 7,534,383 0 7,534,383
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XXVI, L.P. 886,960 0 886,960 0 886,960
▇▇▇▇ ▇. Icahn ▇▇▇▇▇▇ Real Estate Fund XXVII, L.P. 195,387 95,387 100,000 95,387 100,000
A-3
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund IX, Ltd. 2,528 2,528 0 2,528 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund X, Ltd. 2,297 2,297 0 2,297 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XI, Ltd. 2,203 2,203 0 2,203 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XIV, Ltd. 526 526 0 526 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XV, Ltd. 826 826 0 826 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XX, L.P. 1,401.434 1,401.434 0 1,401.434 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XXIV, L.P. 660 660 0 660 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XXV, L.P. 859,693 859,693 0 859,693 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XXVI, L.P. 76,503 76,503 0 76,503 0
Unicorn Associates Corporation ▇▇▇▇▇▇ Real Estate Fund XXVII, L.P. 15,500 15,500 0 15,500 0
▇▇▇▇▇▇▇▇ Corp. ▇▇▇▇▇▇ Real Estate Fund XII, Ltd. 10 10 0 10 0
A-4
ANNEX B
▇▇▇▇▇▇ Investors, Inc.
▇▇▇▇▇▇ Real Estate Management, Inc.
▇▇▇▇▇▇ Partners, ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇ Partnerships:
--------------------
▇▇▇▇▇▇ Real Estate Fund IX, Ltd. ("MREF IX")
▇▇▇▇▇▇ Real Estate Fund X, Ltd. ("MREF X")
▇▇▇▇▇▇ Real Estate Fund XI, Ltd. ("MREF XI")
▇▇▇▇▇▇ Real Estate Fund XII, Ltd. ("MREF XII")
▇▇▇▇▇▇ Real Estate Fund XIV, Ltd. ("MREF XIV")
▇▇▇▇▇▇ Real Estate Fund XV, Ltd. ("MREF XV")
▇▇▇▇▇▇ Real Estate Fund XX, L.P. ("MREF XX")
▇▇▇▇▇▇ Real Estate Fund XXI, L.P. ("MREF XXI")
▇▇▇▇▇▇ Real Estate Fund XXII, L.P. ("MREF XXII")
▇▇▇▇▇▇ Real Estate Fund XXIII, L.P. ("MREF XXIII")
▇▇▇▇▇▇ Real Estate Fund XXIV, L.P. ("MREF XXIV")
▇▇▇▇▇▇ Real Estate Fund XXV, L.P. ("MREF XXV")
▇▇▇▇▇▇ Real Estate Fund XXVI, L.P. ("MREF XXVI")
▇▇▇▇▇▇ Real Estate Fund XXVII, L.P. ("MREF XXVII")
Fairfax Associates II, Ltd. ("Fairfax")
Hearth Hollow Associates, L.P. ("Hearth Hollow")
▇▇▇▇▇▇ Midwest Properties I, L.P. ("Midwest Properties")
Regency North Associates, L.P. ("Regency North")
▇▇▇▇▇▇ Summerhill I, L.P. ("Summerhill")
Subsidiary Corporations:
-----------------------
▇▇▇▇▇▇ Rolling Hills Fund IX Corp.
Cherry Hills Apartment Corp.
Forest Park IX Corp.
Lantern Tree Apartment Corp.
Meridian West Apartment Corp.
Rockborough Apartment Corp.
Williamsburg Fund IX Apartment Corp.
Briarwood Apartment Corp.
Coppermill Apartment Corp.
La Plaza Fund X Corp.
Orchard Apartment Corp.
Quail ▇▇▇▇▇▇▇ Apartment Corp.
Regency Apartment Corp. (Nevada)
Sandpiper Apartment Corp.
B-1
Spanish Apartments Fund X Corp.
Gentle ▇▇▇▇ Apartment Corp.
Villa Del Rio Apartment Corp.
▇▇▇▇▇▇ Village Apartments XI Corp.
▇▇▇▇▇▇ Rock Creek Fund XI Corp.
Buccaneer Village Fund XII Corp.
Castle Bluff Corp.
Palisades Apartment Corp.
Plaza Westlake Corp.
Thunder Hollow Apartment Corp.
Windrock Fund XIV Corp.
Arrowhead Apartment Corp.
Mountain Shadows Apartment Corp.
Woodcreek Fund XV Corp.
Sterling Springs Apartment Corp.
Bedford Green Fund XXI Corp.
Breckenridge Apartment Corp.
Evergreen Apartment Corp.
Governours Square Apartment Corp.
Woodcreek Fund XXI Corp.
River Bay Plaza Corp.
Hearth Hollow Apartment Corp.
East Bay Apartment Corp.
Regency Apartment Corp. (Missouri)
Subsidiary Partnerships
-----------------------
Subsidiaries of MREF IX
Berkley Hills Associates (a general partnership)
Cherry Hills Fund IX Limited Partnership
Forest Park Fund IX Associates Limited Partnership
Lantern Tree Fund IX Limited Partnership
Meridian West Fund IX Limited Partnership
Pennbrook Fund IX Associates, L.P.
Rockborough Fund IX Limited Partnership
Rolling Hills Fund IX Associates, ▇.▇.
▇▇▇▇▇▇ Place Fund IX Associates (a general partnership)
Sherwood Forest Fund IX Associates (a general partnership)
Williamsburg Fund IX Limited Partnership
Subsidiaries of MREF X
Briarwood Fund X Limited Partnership
Coppermill Fund X Limited Partnership
La Plaza Center Fund X, Limited Partnership
Orchard Fund X Limited Partnership
Quail ▇▇▇▇▇▇▇ Fund X Limited Partnership
Regency Park Fund X Associates, L.P.
Sandpiper Fund X Limited Partnership
Spanish Fund X, Ltd.
Subsidiaries of MREF XI
B-2
Acacia Lakes Fund XI Limited Partnership
Gentle ▇▇▇▇ Fund XI Limited Partnership
Knollwood Fund XI Associates (a general partnership)
Rock Creek Fund XI, Ltd.
Sun Valley Fund XI Associates (a general partnership)
Villa Del Rio Fund XI Limited Partnership
Village Fund XI Associates Limited Partnership
Subsidiaries of MREF XII
Brendon Way Fund XII Associates (a general partnership)
Buccaneer Village Fund XII, Ltd.
Castle Bluff Fund XII Associates, L.P.
Palisades Fund XII Associates, L.P.
Plaza Westlake Fund XII, Ltd.
Subsidiaries of MREF XIV
Embarcadero Associates (a general partnership)
Tanglewood Fund XIV Associates Limited Partnership
Thunder Hollow Fund XIV Limited Partnership
Windrock Fund XIV, L.P.
Subsidiaries of MREF XV
Arrowhead Fund XV Limited Partnership
▇▇▇▇▇▇ Mountain Shadows Fund XV Limited Partnership
Woodcreek Fund XV, Ltd.
Subsidiary of MREF XX
Sterling Springs Fund XX Limited Partnership
Subsidiaries of MREF XXI
Bedford Green Fund XXI, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇ Fund XXI Limited Partnership
Evergreen Fund XXI Limited Partnership
Governours Square Fund XXI Limited Partnership
Woodcreek Fund XXI, L.P.
Subsidiary of MREF XXII
Harbour Club Associates Limited Partnership
Subsidiary of MREF XXIII
▇▇▇▇▇▇▇ Associates Limited Partnership
Subsidiaries of XXIV
River Bay Plaza XXIV, L.P.
Subsidiary of MREF XXV
Van Buren Associates Limited Partnership
Subsidiary of Hearth Hollow
Hearth Hollow Apartments Limited Partnership
B-3
Subsidiaries of Midwest Properties
Cedarwood Hills Associates (a general partnership)
East Bay Village Apartments Limited Partnership
Subsidiary of Regency North
Regency North Apartments Limited Partnership
B-4
ANNEX C
Estimated Per Unit Minimum
Listed ▇▇▇▇▇▇ Partnership Aggregate Amount Amount
---------------------------- ------------------- --------------
▇▇▇▇▇▇ Real Estate Fund IX $ 424 $ 381.60
▇▇▇▇▇▇ Real Estate Fund X 234 210.60
▇▇▇▇▇▇ Real Estate Fund XI 221 198.90
▇▇▇▇▇▇ Real Estate Fund XIV 214 181.90
▇▇▇▇▇▇ Real Estate Fund XV 160 136.00
▇▇▇▇▇▇ Real Estate Fund XX 92 73.60
▇▇▇▇▇▇ Real Estate Fund XXIV 347 294.95
▇▇▇▇▇▇ Real Estate Fund XXV 0.50 0.45
▇▇▇▇▇▇ Real Estate Fund XXVI 0.27 0.243
▇▇▇▇▇▇ Real Estate Fund XXVII 10.54 9.486
C-1