EXHIBIT 10.3
AGREEMENT
This Agreement is made and entered into as of the 20th day of December,
1994 by and among GLENBOROUGH INLAND REALTY CORPORATION, a California
corporation ("Glenborough"), RANCON FINANCIAL CORPORATION, a California
corporation ("Rancon"), XXXXXX XXX XXXXXXXXXX individually ("DLS") and as the
trustee of the Xxxxxx Xxx Xxxxxxxxxx Family Trust dated December 10, 1987 ("DLS
Trust"), those entities described on Exhibit A hereto under the caption "General
Partners" and any affiliate of such general partners who may later be admitted
to the Partnerships as additional General Partners (collectively the "General
Partners") who constitute all of the General Partners of the Limited
Partnerships named under the caption "Partnerships" in Exhibit A hereto (the
"Limited Partnerships") and hold the partnership interests indicated next to
each General Partner's name on Exhibit A hereto and the Limited Partnerships.
The Limited Partnerships are herein sometimes also collectively called the
"Partnerships." Glenborough, Rancon, DLS, the General Partners and the
Partnerships are herein sometimes collectively referred to as the "Parties."
WHEREAS, Rancon and DLS have been managing general partners of the
Partnerships and have determined that Rancon can no longer manage the
Partnerships without incurring substantial losses; and
WHEREAS, Glenborough has the expertise and capacity to efficiently and
economically manage the Partnerships and has agreed
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to do so for fixed fees which are no greater than fees previously charged to the
Partnerships by the General Partners; and
WHEREAS, the consideration received by Rancon, DLS and the DLS Trust
pursuant to this Agreement shall be used to defray debt, taxes, space and
equipment lease payments and other obligations of Rancon and DLS; and
WHEREAS, the parties hereto intend by this Agreement (a) to provide the
terms and conditions whereby Glenborough will provide asset management services
for the General Partners and provide for the Partnerships (i) all partnership
administrative services which the General Partners and their affiliates are
obligated to perform for or render to the Partnerships, subject to certain
controls by the General Partners, (ii) real estate brokerage services and/or
acquisition or disposition consulting services and (iii) property management
services for the properties owned, operated or managed, in whole or in part, by
the Partnerships and (b) to provide a basis whereby Glenborough shall receive
all general partner Partnership distributions to the General Partners and may be
substituted as the general partner of the Limited Partnerships; and
WHEREAS, for the purposes of this Agreement, "Ownership Interests"
shall include, without limitation, all types of general partnership equity
interests, whether held directly or indirectly, through a partnership,
corporation or other entity, or through a series or combination thereof.
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NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties hereto agree as follows:
1. General Partner Consulting Agreement. Glenborough agrees, during
reasonable business hours, to consult with the General Partners concerning the
management of the Partnerships and the properties owned by the Partnerships and
such changes as should be made with respect thereto. In addition, Glenborough
shall render the specific services provided in the Management Agreement
referenced in Section 4 hereof.
2. Consideration Payable by Glenborough.
a. Consideration at Closing. As consideration for the
execution of this Agreement and the performance hereunder by Rancon, DLS and the
General Partners, and in consideration of the rights which Glenborough will
acquire pursuant to the Management Agreement, Glenborough shall deliver to the
General Partners the following consideration, all to be delivered at the Closing
except the cash payment described in section 2.a.iv shall be paid as provided in
Section 2.b below:
i. Cash payable directly to Rancon employees
Xxxx Xxxxxxx-$119,700; Xxx
Storrasli-$131,250; and Xxxxxx
Xxxxxxxxxxx-$562,300 as consideration for
their respective covenants not to compete
with Glenborough, in total amount of .
.$813,250.00
ii. Assumption of the Debt of the Xxxxxx Xxx
Xxxxxxxxxx Family Trust dated
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December 10, 1987 to Mitsui Bank (with
interest paid current to Closing) . .
1,715,000.00
iii. Cash payable to the DLS Trust 1,000,000.00
iv. Cash payable to DLS Trust as provided in
Section 2.b. below ............1,900,000.00
v. Note payable to the DLS Trust (term - 24
months; equal monthly payments without
interest, commencing February 1, 1995) ....
............. 1,566,000.00
TOTAL .......................$6,994,250.100
b. Payment of Section 2.a.,iv Cash. Under separate
agreement, Glenborough has agreed to purchase the assets of Rancon Current Yield
12+ L.P. ("Fund 12") on or before September 30, 1995 for the sum of ONE MILLION
EIGHT HUNDRED THIRTY THOUSAND DOLLARS ($1,830,000). The $1,900,000 cash portion
of the consideration provided for in Section 2.a.iv, above, ,shall be paid upon
closing of the transaction described in the preceding sentence. Should that
transaction not close on or before September 30, 1995,Glenborough shall pay said
$1,900,000 cash to the DLS Trust, on October 2, 1995 and shall not thereafter be
obligated to purchase the Fund 12 assets pursuant to the separate agreement
providing for such purchase.
c. Adjustments to Note. Should the Management Agreement
provided for herein be terminated for cause at any time
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prior to payment in full of sums due under the Note provided for in Section
2.a.v, the Note shall then be canceled and no further performance or payment
thereunder by Glenborough shall thereafter be required.
3. Consideration Payable by General Partners.
a. The General Partners are entitled to receive the
distributions described on Exhibit B hereto ("Distributions") as a consequence
of their general partner interests in the Partnerships. In addition to the
consideration provided for in the Management Agreement, the General Partners
agree to pay to Glenborough an amount equal to the total amount which all
general partners, including but not limited to the General Partners, shall
receive at any time as Distributions to general partners from the Partnerships.
The parties acknowledge that certain General Partners' interests have been
assigned to certain employees of Rancon prior to the date of this Agreement, and
the General Partners hereby agree that all general partner interests in all of
the Partnerships shall be subject to the General Partners' control and all
rights therein assigned or transferred as provided by the terms of this
Agreement. When at any time and as any General Partner receives any of such
Distributions, such General Partner shall forthwith pay to Glenborough an amount
equal to the amount received by such General Partner as a Distribution within
ten (10) days after the General Partner's receipt thereof. Such amount paid to
Glenborough
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is referred to as the "Distribution Fee." It is the intention of the parties
that Exhibit B hereto and the reference to "Distribution" or "Distributions"
herein is intended to include all distributions to which the General Partners
are entitled on account of their general partner interests in the Partnerships,
whether or not the same may be listed in Exhibit B. Should the Partnership fail
to deliver to General Partner any Distribution, or part thereof, to which
General Partner is entitled within thirty (30) days after the Distribution is
due and payable, General Partner agrees to take all necessary actions, including
without limitation filing of legal action, to obtain the' Distribution as soon
as reasonably possible and, if General Partner fails to take such action or to
prosecute such action in a timely manner, as determined in Glenborough's sole
discretion, Glenborough shall have the right to receive from General Partner and
General Partner shall deliver within seven (7) days after written request (given
by notice as provided in Section 24) an effective assignment of General
Partner's claim for such Distribution including the right to bring legal action
therefor.
b. Rancon shall assign to Glenborough all of its right,
title and interest in the organizational; and transitional ("O&T") fee
receivable from Rancon Pacific Realty, L.P. by delivery to Glenborough at the
Closing of Rancon's executed assignment in the form attached hereto, marked
Exhibit "C."
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c. Rancon and DLS shall deliver to Glenborough their
irrevocable and unconditional proxy, effective for a term of ten (10) years from
and after the Closing, granting to Glenborough the sole right to vote and
represent all limited partnership interests held by Rancon 'or DLS in any
Partnership in the form attached hereto marked Exhibit "D."
d. DLS agrees not to compete with Glenborough in any
manner which affects the General Partner's interests or the Partnerships which
are the subject of this Agreement.
4. Partnership, Management, Administration and Consulting
Services. Each General Partner, on behalf of each Partnership for which it
serves as general partner, and not on behalf of any other Partnership, does
hereby agree at the Closing to enter into the Management, Administration and
Consulting Agreement in the form of Exhibit F hereto with Glenborough (the
"Management Agreement"), each such Management Agreement shall, be effective as
of the date of the Closing and provide for commencement of Glenborough's
services thereunder on the Closing Date.
5. Substitution of Glenborough as General Partner. The Parties
intend that Glenborough, or an affiliate of Glenborough, shall have the
opportunity, if and when Glenborough so requests and at its sole option and
discretion, to substitute as the general partner of each of the Limited
Partnerships and to substitute as general partner of each of the subsidiary
partnerships of the Limited Partnerships (the "Substitution") and thereby become
the
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sole general partner of each Limited Partnership in which such Substitution is
made. The Substitution shall, if approved, be made by transfer to Glenborough of
a one percent (1%) General Partner interest in the Partnership, which interest
shall be free and clear of any liability or obligation, (contingent or
otherwise), lien or encumbrance, including without limitation any and all
deficit capital account payment obligations. Such one percent (1%) interest may
be: (a) limited partnership Unit(s) converted to a 1% general partner interest
in the Partnership; (b) pursuant to an amendment, approved by the limited
partners, to the Limited Partnership Agreement involved reallocating and
amending the rights, preferences and privileges of the 1% general partner
interest, provided that interest is assigned and transferred to Glenborough free
and clear of all obligations as described above; or (c) all or a portion of the
general partner interest of the assigning General Partners constituting a 1%
general partner interest in the Partnership, provided such existing General
Partners' interests are assigned and transferred to Glenborough free and clear
of all obligations as described above. The one percent (1%) general partner
interest shall be assigned and transferred to Glenborough for no consideration
in addition to that provided for in this Agreement.
The General Partners will cooperate fully with Glenborough with respect
to any Substitution that Glenborough may propose; provided Glenborough and any
such affiliate which is proposed for
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Substitution (a) are not in default under this Agreement or the Management
Agreement and the duties and responsibilities under the Management Agreement
have been performed in a commercially reasonable, competent and professional
manner and (b) the proposed substitute general partner is of good financial
standing and has the net worth requisite to assure that the Partnership will be
treated as a partnership under the applicable provisions of the Internal Revenue
Code. The Parties recognize that any Substitution will require the solicitation
and receipt of the consent of the limited partners in each of the Limited
Partnerships affected and that the consent with respect to all of the
Partnerships may not be obtained. If such consent is not obtained from a
Partnership, the provisions of this Agreement for payment of the Distributions
to Glenborough and any other post-Closing performance by the parties and the
effectiveness of the Management Agreement concerning the Partnership for which
the consent was not obtained shall not be affected, except that if the
Substitution is not effected for a Partnership by that date ten (10) years after
the closing Date, the Management Agreement may terminate as provided for below
in this Section 5.
Upon receipt of the consent, the General Partners of the Partnership
from which the consent is obtain shall execute and deliver, to Glenborough a
written assignment of the one percent (1%) General Partners interest in the
Partnership described above, which shall be the sole general partner interest in
that
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Partnership as of the date of such assignment. The balance of the General
Partners' interest as a general partner in the Partnership, if any, shall be
converted to a limited partner interest effective on or before the date of such
assignment, or terminated in any other manner which results in the interest
assigned to Glenborough being the only general partner interest in the
Partnership as of and after the assignment. Should any General Partner's
interest be converted to a limited partner interest in the Partnership as
provided for in this Section 5, Glenborough shall be given a proxy in the form
of Exhibit "D" hereto, unconditional and irrevocable for a period of ten (10)
years, granting Glenborough the sole right to vote and represent the Units or
other converted limited partner interest. The parties recognize that, in
connection with any Substitution, Glenborough will require as a condition
thereto consent of the partners affected thereby to the amendment of the
agreements establishing the Partnership, affected thereby to change the
compensation of the general partner to substantially conform to the provisions
of the Management Agreement. The reasonable costs and expenses of each
solicitation of (Partnership consent to a Substitution shall be paid by the
Partnership. So long as there has not been a Substitution of general partner in
a Partnership, without the consent of the General Partners and Glenborough no
change will be made in the Distributions from that Partnership. The General
Partners shall be and remain responsible for any and all obligations, contingent
or otherwise, which they may have to
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the Partnership and/or to any third parties prior to the Substitution, including
without limitation any and all deficit capital account payment obligations, and
it is understood that Glenborough is not obligated to assume any liability or
obligation with respect thereto except as may otherwise be specifically provided
by the terms of this Agreement and the Management Agreement as a consequence of
the performance by Glenborough of the services assumed by it hereunder and under
the Management Agreement.
The parties hereto intend that all Substitutions will occur on or
before January 2, 2005, each to occur within a reasonable time, not more than 60
days, after the respective General Partner receives written request from
Glenborough to seek consent of the subject Partnership. The January 2, 2005 date
for completion of the substitution may be extended upon the request of
Glenborough with the consent of Rancon, which consent shall not be unreasonably
withheld. If any Substitution does not occur within ten (10) years after the
Closing Date, the Management Agreement shall terminate as to the Partnership for
which the substitution was not obtained unless the Partnership Agreement for the
involved Partnership allows the General Partner to resign without dissolving the
Partnership, in which case the General Partner shall then resign and a new
General Partner be appointed as provided for in the subject Partnership
Agreement, and in such case the Management Agreement shall not terminate as to
that Partnership.
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The General Partners each agree that, so long as the Management
Agreement is in effect as to any Partnership for which they are General Partner,
they will not take any action which would cause the Partnership to dissolve,
including resigning as General Partner if such act would cause dissolution.
Nothing in this Agreement shall be interpreted as requiring Glenborough
to substitute as a General Partner in any Partnership, which it may do, or
request be done, if and when it so elects in its sole discretion.
6. Power of Attorney and Proxy.
x. Xxxxx of Power of Attorney and Proxy. To facilitate
the exercise of the powers granted Glenborough under this Agreement and under
the management Agreement, including the planned Substitution, each General
Partner hereby appoints and constitutes Glenborough as attorney-in-fact and
proxy holder (referred to herein in such capacities as the "Attorney-in-Fact"),
with power and authority to act in the best judgment of its officers, in the
name and on behalf of such General Partner (except as otherwise provided by law)
in the negotiation, execution, acknowledgement, verification, delivery,
recording and filing of documents to accomplish with respect to the Partnerships
hereto only the purposes of this Agreement and the Management Agreements, such
actions to include without limitation (i) the execution of any and all documents
including without limitation new partnership agreements, amendments of existing
partnership agreements, certificates of partnership,
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statements of partnership or other documents required to be filed or recorded,
consents, resolutions, affidavits, applications or proxies, and all contracts
and leases, authorized or otherwise permitted by the terms of this Agreement and
the Management Agreement, (ii) the attendance at meetings and casting of any
ballots or votes necessary to accomplish such purposes, (iii) the further
cooperation as necessary or desirable in the sole discretion of Glenborough to
obtain the consents of lenders or other parties including spouses, and (iv)
recommending the accomplishment of the purposes and mechanics of this Agreement
to the limited partners of the Limited Partnerships, to the California
Department of Corporations and other appropriate regulatory bodies and to such
other persons as may be deemed necessary or appropriate by Glenborough. Within
ten (10) business days of executing a document pursuant to the powers granted
under this Xxxxxxxxx 0, (xxxxx than a contract or lease executed pursuant to the
Management Agreement which, by the terms thereof, does not require the prior
approval of a General Partner) Glenborough shall provide a copy of such document
to each General Partner holding an ownership Interest in the Partnership to
which the document relates. Notwithstanding the foregoing, no power or authority
is granted hereunder with respect to any of the matters specifically referenced
above that require the written consent or approval of a General Partner under
the provisions of the Management Agreement unless and until such consent or
approval shall have been given.
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Where required, the General Partners will execute a power of attorney
in recordable form to facilitate the exercise by Glenborough of the powers
granted hereunder. Any power of attorney or proxy given pursuant to the terms of
this Section 6.a shall be consistent with the terms of the Partnership Agreement
of the Partnership involved.
b. Incidents of Power of Attorney and Proxy. The Power
of Attorney and Proxy hereby granted by each General Partner to the
Attorney-in-Fact:
i. Is a proxy and special power of attorney
coupled with an interest, is irrevocable and shall survive both the death of the
granting Party or any assignment by a Party of its ownership Interests;
ii. May be exercised by the Attorney-in--Fact in
such form and manner as the Attorney-in-Fact reasonably deems appropriate
including without limitation by signature or facsimile signature of the
Attorney-in-Fact acting for any or all the General Partners; and
iii. Includes the authority to take prudent
further action which shall be reasonably necessary or convenient in connection
with any of the powers granted to the Attorney-in-Fact pursuant to this
Paragraph, hereby giving the Attorney-in-Fact full power and authority to do and
perform each and every act necessary or appropriate, in the reasonable
discretion of the Attorney-in Fact, to be done to accomplish the purpose of this
Agreement as
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fully as a General Partner might or could do if personally present, and hereby
ratifying and confirming all that the Attorney-in-Fact shall lawfully do or
cause to be done by virtue hereof.
iv. Notwithstanding any statement herein to the
contrary, may not be exercised during any period of time that Glenborough shall
be in default under any provision of this Agreement or the Management Agreement
and a General Partner shall have given Glenborough notice of such default and
such default shall remain uncured.
7. Indemnification.
a. Indemnification by Glenborough. Glenborough hereby
agrees to save and hold DLS, Rancon, and those General Partners executing this
Agreement, and their respective officers, directors, shareholders and general
partners including, without limitation, Xxxxxx X.X. Xxxxxxxxxxx, Xxxx X.
Xxxxxxx, Xxxx X. Xxxx, Xxxxx x. Storrasli, Xxxxxx X. Xxxx, Xxxx Sroccolo and
Xxxxxx Xxxxxxx (collectively, "Related Parties") harmless and defend and
indemnify them from and against any claim which may be made against any of them
(including without limitation reasonable attorneys' fees and other costs and
expenses incident to any suit, action or proceeding) arising out of or resulting
from (i) the operation from and after the Effective Date of` each Partnership,
whether or not Glenborough is substituted as a general partner pursuant to
Paragraph 3 of this Agreement, to the extent caused by a grossly negligent act
or omission of Glenborough, expressly excluding,
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however, liability arising from acts or omissions of Rancon, DLS or the General
Partners, (ii) any wrongful use (that is, use for a purpose unrelated to the
Substitution of Glenborough as a general partner, the operation, or any other
activity, of one of the Partnerships) of the powers granted in Section 6 hereof.
Glenborough shall have the right to decide whether any suit, action or
proceeding is settled, tried or appealed and to select and supervise counsel in
connection with any such suit, action or proceeding provided it shall have given
written notice to the indemnitees and such indemnitees shall not have reasonably
objected to the proposed action within five (5) days after receipt of such
notice or Glenborough shall have received the consent of the indemnitees to the
proposed action, which consent will not be unreasonably withheld.
Notwithstanding the foregoing or any other provision of this Agreement,
no representation, warranty, undertaking or indemnity is provided under this
Agreement by Glenborough to Rancon, DLS or any General Partner or their related
parties for matters occurring or arising from acts or failures to act prior to
the Effective Date and neither Glenborough nor any of its affiliates shall have
any liability to Rancon, DLS or any General Partner or their related parties
hereunder as a result of any fluctuation or reduction in the market or cash
value of any ownership Interest for any reason whatsoever other than gross
negligence or intentional misconduct committed by Glenborough or its affiliates.
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8. Indemnification by General Partners and Partnerships.
Rancon, DLS, DLS Trust, the Partnerships and each General Partner for itself
alone, and not on behalf of any other General Partner, each hereby agrees (each
an "Indemnitor" and collectively the "Indemnitors") to save and hold
Glenborough, its officers, directors, shareholders, employees and agents
("Indemnitees") harmless and defend and indemnify the Indemnitees from and
against any liability (including without limitation reasonable attorneys' fees
and other costs and expenses incident to any suit, action or proceeding) arising
out of or resulting from (a) any liability or obligation, contingent or
otherwise, including without limitation any deficit capital account payment
obligation, arising from the Partnership of which that Indemnitor was a partner,
or is in any way related by contract arising prior to the Effective Date; (b)
that Indemnitor's gross negligence or omission in regard to any Partnership
occurring or arising from acts or failures to act prior to the Effective Date;
(c) except that DIS shall not be an Indemnitor as to this Section 8. (c), the
presence or suspected presence in, on, or about any real property owned by any
Partnership or which any Partnership may have an interest in of any toxic or
hazardous substance, material or waste (as defined in any applicable Federal,
State or local law or regulation), including, but not being limited to, the
costs of investigation, containment, removal and/or clean-up, whether or not,
the presence, or alleged presence, of such toxic or hazardous substance,
material or waste
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constitutes a breach of any representation or warranty contained herein
provided, however, the Indemnitors shall have liability under this subparagraph
(c) only with respect to any incident involving toxic or hazardous substances
which occurred during the ownership of the property in question by a Partnership
at a time when such Indemnitor had an interest therein or which such Indemnitor
otherwise became aware of prior to the Closing and shall not apply to any
occurrence on or after the Effective Date, or which occurred prior to the time
the Indemnitor had an interest in the Partnership which owned the property in
question and such Indemnitor is not, as of the Closing, aware thereof, or (d)
any breach of this Agreement or the Management Agreement by such Indemnitor,
including, without limitation, the falsity of any representation or warranty
made herein by such Indemnitor. The Indemnitors shall have the right to decide
whether any suit, action or proceeding is settled, tried or appealed and to
select and supervise counsel in connection with any such suit, action or
proceeding provided they shall have given written notice to the Indemnitees and
such indemnitees shall not have reasonably objected to the proposed action
within five (5) days after receipt of such notice or the Indemnitors shall have
received the consent of the Indemnitees to the proposed action, which consent
will not be unreasonably withheld.
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9. Closing.
a. The "Closing" provided for herein shall occur at the
offices of Glenborough Realty corporation, 000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 0000,
Xxx Xxxxx, XX 00000-0000 on January 3, 1995 at 11:00 a.m., (sometimes referred
to as the "Closing Date") or such other time or place that the parties hereto
may otherwise mutually agree, provided that, subject to completion of the
Closing, the Effective Date of this Agreement shall be January 1, 1995 and
performance by the parties under the management Agreement shall commence at
12:01 a.m. January 1, 1995.
b. It shall be a condition precedent to the Closing that
all parties hereto have agreed to a Transition Agreement providing for the
payment of expenses of the respective parties thereto incurred during
transition, including without limitation provisions for the use of personnel and
assets of each party and the tasks to be completed by each party during a
transition period after the Closing.
10. Deliveries by Glenborough. At the Closing, Glenborough shall
deliver to the General Partners:
a. Cash consideration in the sum of ONE MILLION EIGHT
HUNDRED THIRTEEN THOUSAND TWO HUNDRED FIFTY DOLLARS ($1,813,250) of which eight
hundred thirteen thousand two hundred fifty dollars ($813,250) shall be paid
directly to Rancon employees and one million dollars ($1,000,000) shall be paid
to the DLS Trust;
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b. The original executed note to DLS Trust in the
original principal amount of ONE MILLION FIVE HUNDRED SIXTY-SIX THOUSAND DOLLARS
($1,566,000).
c. An executed Assumption Agreement by which Glenborough
assumes the Mitsui Bank debt described in Section 2.a. from the DLS Trust:
d. An executed copy of the Management Agreement; and
e. An executed counterpart original of the Proxy
Agreement.
f. Any other document necessary to complete performance
of the Closing obligations of Glenborough.
11. Deliveries by General Partners. At the Closing, Rancon, DIS,
the General Partners and the Partnerships shall deliver to Glenborough the
following:
a. Certified resolutions of each General Partner
authorizing this Agreement and the transactions contemplated hereby;
b. An executed copy of the Management Agreement signed
by all the General Partners and the Partnerships;
c. An executed assignment to Glenborough of the Rancon
Pacific "O&T" fee payable to Rancon in the form attached hereto, marked Exhibit
"C"; and
d. An executed counterparts original of the Proxy
Agreement.
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e. Any other document necessary to complete performance
of the Closing obligations of Rancon, DLS and the General Partners.
12. Scope of Agreement. With respect to a given General Partner,
this Agreement is applicable solely to those Limited Partnerships in which such
General Partner has an Ownership Interest. This Agreement shall not under any
circumstances be construed as creating a partnership or any other relationship
between or among any of the Parties where no such relationship otherwise exists.
13. Effective Period. This Agreement and the power of attorney and
proxy granted pursuant to section 6 hereof shall be effective as of the
Effective Date and shall remain in effect, except as otherwise provided herein
or in the Management Agreement, as to each Partnership until the winding up,
termination or dissolution of such Partnership has been completed.
14. Representations and Warranties of General Partners. Rancon,
DLS and each General Partner, for itself alone and not on behalf of any other
General Partner, and each Partnership hereby represents and warrants to and
covenants with Glenborough as follows:
a. Except as otherwise disclosed in Schedule 14.a
attached hereto, each is duly authorized' to execute this Agreement and the
Management Agreement in the opacities indicated: each General Partner owns the
General Partner's Ownership Interest held by it in each Partnership and its
right to the Distribution free
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and clear of all liens, encumbrances and adverse claims, has not encumbered,
assigned, transferred or otherwise impaired such General Partner's Ownership
Interest or right to Distributions from the Partnerships and is not in default
under any provision of the agreements establishing the Partnerships in which it
serves as General Partner;
b. The execution and performance of this Agreement will
not materially violate any order, rule, judgment or decree to which such General
Partner or any Partnership is subject or breach any contract, agreement or
commitment by which he or it, or any Partnership, is bound;
c. Reserved (intentionally deleted).
d. Each General Partner is an individual or a
partnership, Rancon is a corporation and each of the Partnerships is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of its organization and is duly qualified to do business in the
State of California and is duly qualified in each other jurisdiction where the
failure to qualify would have a material adverse effect upon its business or
financial condition; and
e. Each of the Partnerships in which each General
Partner has an Ownership Interest:
i. Is duly organized, validly existing and in
good standing under the laws of the State of its organization, and is duly
qualified as a foreign partnership in each jurisdiction
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where the failure to so qualify would have a material adverse effect upon its
business or financial condition.
ii. Except as otherwise disclosed in Schedule
14.e.ii and schedule 14.e.ix attached hereto, to the best of Rancon's, the
General Partners' and the Partnerships' knowledge, after due and diligent
inquiry, is in full compliance in all material respects with all Federal, State
and local laws, and regulations applicable to the conduct of its business,
including, but not being limited to, all reporting requirements under all
Federal and State securities laws, and all Federal, State and local laws and
regulations governing or in any way relating to the generation, handling,
manufacturing, treatment, storage, use, transportation, spillage, leakage,
dumping, discharge or disposal (whether accidental or intentional) of any toxic
or hazardous substances, materials or wastes, except to the extent that
violation of any such laws and regulations, individually or in the aggregate,
would not materially and adversely affect the financial condition, business
prospects, properties, assets or results of operations of such General Partner
and Partnership. Except as otherwise disclosed in Schedule 14.e.ii attached
hereto, neither Rancon, any Partnership, nor any General Partner, is aware of or
has received notice of any violation of any such law or regulation.
iii. Except as otherwise disclosed in Schedule
14.e.ix attached hereto, there neither is, nor has been, any generation,
handling, manufacturing, treatment, storage, use,
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transportation, spillage, leaking, dumping, discharge or disposal (whether
accidental or intentional) of any toxic or hazardous substance, material or
waste on, over or in any of the parcels of real property which are described in
Exhibit I, hereto.
iv. Except as otherwise disclosed in Schedule
14.e.iv attached hereto, is not a party to any pending, or to Rancon's, DLS's,
any General Partner's or any Partnership's actual knowledge, after reasonable
inquiry, any threatened litigation, including, but not being limited to, any
litigation arising out of the use, operation or ownership of any property in
which any such Partnership may have an interest that might materially affect the
use and operation of any such property, or any portion thereof, for its intended
purpose or might detrimentally affect the value thereof or result in a material
and adverse change in the business or financial condition of such Partnership.
v. Except as disclosed in Schedule 14.e.v
attached hereto, is not in default with respect to the payment of any obligation
for money borrowed or any obligation which is secured by any property owned or
occupied by such Partnership or in which such Partnership has an interest,
including without limitation delinquent taxes and assessments.
vi. Except as disclosed in Schedule 00.x.xx
attached hereto, save and except for leases entered into in the ordinary course
of business covering all or a portion of the property owned by such Partnership,
each such Partnership is not a
24
party to any material contract or other commitment terminable on more than
thirty (30) days' notice, including, but not being limited to, any contract for
real estate brokerage services which provides for services with respect to the
sale or lease of any property, or any portion thereof, owned or occupied by such
Partnership, or in which such Partnership has an interest.
vii. Except as disclosed in Schedule 14.e-vii
attached hereto, is not a party to any obligation for money borrowed which is
subject to recourse liability to the general assets of such Partnership or of
such General Partner.
viii. Is not a party to or subject to any
financing or refinancing which is in material violation of any provision of the
agreements establishing such Partnership or any applicable rule of or
restriction imposed by the California Commissioner of Corporations.
ix. Except as otherwise disclosed in Schedule
14.e.ix attached hereto, has no material liability, fixed or contingent, whether
recourse or non-recourse, including without limitation unpaid property taxes,
except for the liabilities set forth on or otherwise disclosed in the financial
statements of the Partnerships described on Exhibit H hereto, true and complete
copies of which have been delivered to Glenborough, or incurred in the ordinary
course of business after the date of the most recent balance sheet included on
such financial statements and except to the extent that any such liability,
individually or in the
25
aggregate, would not materially and adversely affect the financial condition,
business, properties, assets or results of operations of such Partnership.
x. Except as otherwise disclosed in Schedule
14.e.x, is not in material default under any lease to which it is a party and is
not a party to any lease covering more than Ten Thousand (10,000) square feet of
space wherein any party thereto is in default, except to the extent any such
default, individually or in the aggregate, would not materially and adversely
affect the financial condition, business, properties, assets, or results of
operations of such Partnership.
xi. Except as otherwise expressly disclosed in
Schedule 14.e.xi attached hereto, is not a debtor in any proceeding under the
Bankruptcy Code or an assignee under an assignment for the benefit of creditors.
xii. Is in substantial compliance with all
material covenants, conditions, restrictions and other agreements applicable to
any property owned by such Partnership, or in which such Partnership has an
interest, including, but not being limited to, the provisions of any applicable
association which holds rights in any common areas which form a part of any such
property except to the extent such failure to comply, individually or in the
aggregate, would not materially and adversely affect the financial condition,
business, properties, assets ar results of operations of such General Partner.
26
xiii. Except as expressly disclosed in Schedule
14.e.xiii attached hereto, to Rancon's, DLS's, each General Partner's and each
Partnerships' current, actual knowledge, without further inquiry, there is no
existing, proposed or contemplated plan, study or effort of any governmental
agency or authority which, in any way, would materially affect the use of any
property owned by such Partnership, or in which such Partnership may have an
interest, or any portion thereof, for its presently intended use.
xiv. Owns the assets described on Exhibit I
hereto and, with respect to interests in real property (based solely upon such
title insurance as such Partnership may hold with respect thereto), such
Partnership holds marketable fee title thereto, and with respect to all personal
property and intangible assets, holds title free and clear of all liens,
encumbrances and adverse claims, except as otherwise disclosed in schedule
14.e.xiv attached hereto. All taxes assessed with respect to any interest in
real property owned by such Partnership are not delinquent as to payment.
xv. That it or he has, disclosed to Glenborough
all material facts known to him or it affecting the value, legal and operational
condition of the Partnerships, the General Partner Distributions, the
Partnership and General Partner obligations, and the financial, legal and
physical condition of the Partnership investment assets known to him or it. For
purposes of this Section 14.e.xv, "material facts" shall be defined as those
which result in
27
an effect on the Partnership, Distributions or assets in an amount or value of
more than $15,000.
15. Representations and Warranties of Glenborough. Glenborough
hereby represents and warrants as follows:
a. Glenborough is a corporation duly organized, validly
existing and in good standing under the laws of the state of California and is
duly qualified in such other jurisdictions where the failure to so qualify would
have a material adverse effect upon its business or financial condition.
b. Glenborough is duly authorized to execute this
Agreement. The execution and performance of this Agreement by Glenborough will
not violate any order, rule, judgment or decree to which Glenborough is subject
or breach any contract, agreement or commitment by which Glenborough is bound.
c. The execution and delivery of this agreement and the
Management Agreement and the performance by Glenborough of its obligations
hereunder and thereunder will not conflict with or result in the breach or
violation of or constitute a default or an event of default under any law, rule
or regulation, or any judgment or order of any court or any of the terms or
provisions of the Articles of Incorporation or Bylaws or of any agreement or
contract to which Glenborough is a party or to which Glenborough is subject.
d. Glenborough is not a party to any pending litigation
or regulatory action which would affect its ability to carry out its obligations
under this Agreement and the Management Agreement
28
nor, to the best of the knowledge of Glenborough, is any such action or
proceeding currently threatened.
e. Glenborough is in compliance with all applicable laws
and regulations applicable to the conduct of its business.
16. Entire agreement. This Agreement, the Management Agreement
contain the entire agreement of the Parties with respect to the transactions
contemplated hereby and shall not be modified or amended except by an instrument
signed by or on behalf of the Parties.
17. General Partners' Expenses. The expenses of the General
Partners prior to Substitution which are reimbursable under the Partnership
Agreements of the Partnerships, shall be reimbursed to the General Partner as
provided for in such Partnership Agreement.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
19. Governing-Law. This Agreement shall be governed by and
enforced in accordance with the laws of the State of California.
20. Attorneys' Fees. In any dispute between or among the Parties
relating to or arising out of the interpretation or breach of this Agreement,
the prevailing party or parties shall be entitled to recover from the other
party or parties all reasonable expenses including without limitation attorneys'
fees and court costs.
29
21. Severability. If one or more of the provisions contained in
this Agreement shall, for-any reason, be held unenforceable in any respect, its
unenforceability shall not affect any other provisions, and the Agreement shall
be construed as if the unenforceable provision had not been included.
22. Other Acts. Glenborough and each General Partner covenants on
behalf of itself and its successors, heirs and assigns to execute, with
acknowledgement, verification or affidavit if required, any and all documents
and writings and to perform any and all other acts that may be deemed by any
such General Partner or Glenborough necessary or expedient in connection with
the creation of this Agreement (including the Management Agreement), the
achievement of its purposes or the consummation of any matter covered hereby.
23. Successors and Assigns. Glenborough shall have the right to
assign its rights and obligations under this Agreement and under the Management
Agreement to an affiliate, as hereinafter is defined in Section 150 of the
General Corporation Law of the State of California subject to the receipt of the
consent of the General Partner or the General Partners who have an interest in
the Partnerships which would be affected thereby, which consent will not be
unreasonably withheld. Any assignment by Glenborough to any other person of any
of its rights and obligations shall be subject to the consent of the General
Partner or General Partners who have interests in the Partnership affected
thereby, which consent may be
30
withheld in the sole and absolute discretion of such General Partners. Subject
to the foregoing, the terms and conditions of this Agreement shall be binding
upon and inure to the benefit of the successors, heirs and assigns of the
respective Parties.
24. Guaranty. By his signature hereto, Guarantor hereby guarantees
the full, faithful and prompt payment and performance by Glenborough of all
obligations of Glenborough under this Agreement.
25. Notices. Any notices required or permitted to be given
hereunder shall be given in writing and sent by United States certified mail,
return receipt requested, addressed to the respective Parties as follows:
Xxxxxx Xxxxxxxxxx
To Glenborough Glenborough Inland Realty Corporation
and Guarantor: 000 X. Xx Xxxxxx Xxxx Xxx Xxxxx, XX 00000-0000
With Copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Zankel & XxXxxxx
Xxx Xxxxxxxxxxx Xxxxxx Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
To Each of the c/o Rancon Financial Corporation
Other Parties: 00000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
With copy to: Xxxxx X. Xxxxxxxx
Xxxxxx, Xxxxxxx & Xxxxxxxx
1901 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
or at such other address as any Party may designate by written notice to the
other Party. Notices shall be deemed given on the third calendar day following
deposit in the United States Mail as aforesaid.
31
26. Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall,
together, constitute but one and the same instrument.
27. Exhibits. The following exhibits are attached to this
Agreement:
Exhibit A - General Partner Schedule
Exhibit B - Schedule of General Partner Distributions
Exhibit C - Assignment of "0&T" Fee Receivable
Exhibit D - Proxy Agreement
Exhibit E - (Intentionally Omitted)
Exhibit F - Management, Administration and Consulting
Agreement
Exhibit G - Intentionally Omitted
Exhibit H - Schedule of Financial Statements
Exhibit I - Schedule of Investment Assets
Schedule 14.a - General Partners' Ownership Interest
Encumbrances
Schedule 14.e.ii - Legal Disclosures
Schedule 14.e.iv - Litigation Disclosure
Schedule 14.e.v - Default Disclosure
Schedule 00.x.xx - Contract Disclosure
Schedule 14.e.vii - Recourse Debt Disclosure
Schedule 14.e.ix - Material Liabilities/Hazardous Substance
Disclosure
Schedule 14.e.x - Material Lease Defaults
Schedule 14.e.xi - Bankruptcy, Disclosure
32
Schedule 14.e.xiii - Governmental Action Disclosure
Schedule 14.e.xiv - Liens Disclosure
33
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of
the date first written above.
GLENBOROUGH INLAND REALTY CORPORATION
By: /s/ XXXXXX XXXXXXXXXX
--------------------------------
Xxxxxx Xxxxxxxxxx,
President
RANCON FINANCIAL CORPORATION,
a California corporation
By: /s/ XXXXXX X. XXXXXXXXXXX
--------------------------------
Its: President
XXXXXX XXX XXXXXXXXXX FAMILY
TRUST Dated December 10, 1987
By: /s/ XXXXXX XXX XXXXXXXXXX
--------------------------------
Xxxxxx Xxx Xxxxxxxxxx,
Trustee
/s/ XXXXXX XXX XXXXXXXXXX
------------------------------------
Xxxxxx Xxx Xxxxxxxxxx,
Individually
34
GENERAL PARTNERS:
The undersigned hereby join in the above agreement to the extend the
same is made applicable to them.
/s/ XXXXXX XXX XXXXXXXXXX
------------------------------------
XXXXXX XXX XXXXXXXXXX,
General Partner in
Rancon Realty Fund II, a California limited partnership,
Rancon Realty Fund III, a California limited partnership,
Rancon Realty Fund IV, a California limited partnership,
Rancon Realty Fund V, a California limited partnership, and
Rancon Realty Fund I, a California limited partnership.
RANCON FINANCIAL CORPORATION,
General Partner in
Rancon Realty Fund II, a California limited partnership,
Rancon Realty Fund III, a California limited partnership,
Rancon Realty Fund IV, a California limited partnership,
Rancon Realty Fund V, a California limited partnership, and
Rancon Realty Fund I, a California limited partnership.
By: /s/ XXXXXX X. XXXXXXXXXXX
-------------------------------
Its: President
RC PACIFIC REALTY PARTNERS L.P.,
a Delaware limited partnership,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------------------
Its: President of Rancon Pacific Realty Inc.
The General Partner
35
RANCON INCOME PARTNERS I, L.P.,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------------
Its: President of Rancon Financial Corporation
The General Partner
RANCON DEVELOPMENT PARTNERS VI, L.P.,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------------
Its: President of Rancon Financial Corporation
The General Partner
RANCON 11, L.P.,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------------
Its: President of Rancon Financial Corporation
The General Partner
PARTNERSHIPS:
The undersigned herby join in the above agreement to the extend the
same is made applicable to them.
RANCON REALTY FUND II,
a California limited partnership
By: /s/ XXXXXX XXX XXXXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxxxx,
General Partner
By: RANCON FINANCIAL CORPORATION,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------
Its: President
36
RANCON PACIFIC REALTY L.P.,
a Delaware limited partnership
By: PC PACIFIC REALTY PARTNERS L.P.,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-------------------------------
Its: President of Rancon Realty Inc.
The General Partner
RANCON REALTY FUND III,
a California limited partnership
By: /s/ XXXXXX XXX XXXXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxxxx,
General Partner
By: RANCON FINANCIAL CORPORATION,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------
Its: President
RANCON INCOME FUND I,
a California limited partnership
By: RANCOM INCOME PARTNERS I, L.P.,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------------
Its: President of Rancon Financial Corporation
The General Partner
RANCON DEVELOPMENT FUND VI,
By: RANCOM INCOME PARTNERS IV, L.P.,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-----------------------------------------
Its: President of Rancon Financial Corporation
The General Partner
37
RANCON REALTY FUND V,
a California limited partnership
By: /s/ XXXXXX XXX XXXXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxxxx,
General Partner
By: RANCON FINANCIAL CORPORATION,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------
Its: President
RANCON REALTY FUND IV,
a California limited partnership
By: /s/ XXXXXX XXX XXXXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxxxx,
General Partner
By: RANCON FINANCIAL CORPORATION,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------
Its: President
RANCON REALTY FUND I,
a California limited partnership
By: /s/ XXXXXX XXX XXXXXXXXXX
--------------------------------
Xxxxxx X. Xxxxxxxxxx,
General Partner
By: RANCON FINANCIAL CORPORATION,
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
---------------------------
Its: President
38
RANCON ONTARIO FREEWAY PROPERTIES FUND,
a California limited partnership
By: RANCON 11, L.P.
General Partner
By: /s/ XXXXXX X. XXXXXXXXXXX
-----------------------------
Its: President of Rancon Financial
The General Partners
39
EXHIBIT A
General Partner Schedule
Partnership General Partner
Rancon Realty Fund II, a Xxxxxx, X. Xxxxxxxxxx and
California limited partnership Rancon Financial Corporation
Rancon Pacific Realty L.P., a RC Pacific Realty Partners
Delaware limited partnership L.P., a Delaware limited partnership
Rancon Realty Fund III, a Xxxxxx Xxx Xxxxxxxxxx and
California limited partnership Rancon Financial Corporation
Rancon Income Fund I, a Rancon Income Partners I, L.P.
California limited partnership
Rancon Development Fund VI, a Rancon Development Partners
California limited partnership VI, L.P.
Rancon Realty Fund V, a Xxxxxx Xxx Xxxxxxxxxx and
California limited partnership Rancon Financial Corporation
Rancon Realty Fund IV, a Xxxxxx Xxx Xxxxxxxxxx and
California limited partnership Rancon Financial Corporation
Rancon Realty Fund I, a Xxxxxx Xxx Xxxxxxxxxx and
California limited partnership Rancon Financial Corporation
Rancon Ontario Freeway Rancon 11, L.P.
Properties Fund, a California
limited partnership
Exhibit B
Schedule of General Partner Distributions
(Section references refer to applicable Partnership Agreement)
Partnership General Partner Distributions
Rancon Realty Fund I - 2% of distributions of Cash Available for
Distribution, pursuant to Paragraph 8.1 (b)(2)
- 20% of distributions from Sale or Refinancing
Subordinated to a 15% per annum cumulative
non-compounded return on adjusted capital
contributions pursuant to Paragraph 8.2(b)
Rancon Realty Fund II - 2% of distributions of Cash Available for
Distribution. pursuant to Paragraph 8.1 (b)(2)
- 20% of distributions from Sale or Refinancing
Subordinated to a 15% per annum cumulative
non-compounded return on adjusted capital
contributions pursuant to Paragraph 8.2(b)
Rancon Realty Fund III - 2% of distribution of Cash From Operations pursuant
to Paragraph 11.1
- 2% of distributions of Cash Other Than Cash From
Operations until the Waited Partners have received a
15% annual cumulative non-compounded return on
adjusted invested capital: 20% thereafter, pursuant
to Paragraphs 11.2.1(i), (ii), (iii)
Rancon Realty Fund IV - 10% of distribution of Cash From Operations pursuant
to Paragraph 11.1
- 1% of distribution of Cash Other Than Cash From
Operations until adjusted invested capital is reduced
to 0 and each Holder has received a 12% annual
cumulative non-compounded return on his adjusted
invested capital: 0% while special additional returns
are paid to Holders based on date Units purchased:
20% thereafter. pursuant to Paragraphs
11.2.1(i),(ii),(iii),(iv),(v) and (vi)
Rancon Realty Fund V - 10% of distribution of Cash From Operations pursuant
to Paragraph 11.1
- 1% of distributions of Cash Other Than Cash From
Operations until adjusted invested capital is reduced
to 0 plus 1 12% per annum cumulative non-compounded
return on the adjusted invested capital, plus any
Holders limited incremental preferential return: 99%
until distributions to the General Partner equal 20%
of all prior distributions less prior distributions
to the General Partner; 20% of the balance
thereafter, pursuant to Paragraphs 11.2.1
(i),(ii),(iii) and (iv)
Rancon Development - 10% of distribution of Cash From Operations,
Fund VI pursuant to Paragraph 11.1
- 1% of distributions of Cash Other Than Cash From
Operations until adjusted invested capital is reduced
to 0 plus a 12% per annum cumulative non-compounded
return on the adjusted invested capital, plus any
Holder's limited incremental preferential returns;
99% until distributions to the General
Partner equal 20% of all prior distributions less
prior distributions to the General Partner; 20% of
the balance thereafter, pursuant to Paragraphs
11.2.1(i), (ii), (iii), (iv), (vi) and (vii)
Rancon Income Fund I - 10% of distributions of Cash From Operations
subordinated to the Limited Partners receiving an
annual distribution of 6% per annum, pursuant to
Paragraph 11.1 and Summary of Offering item defined
as "Deferral by General Partner of Distributions of
Cash From Operations"
- 2% of distributions of Cash Other Than From
Operations until the Limited Partners have received
their adjusted invested capital plus a 10%
preferential return plus any Holder incremental
preferential return, 98% until the General Partner
has received an amount equal to 15% of all prior
distributions less previous distributions to the
General Partner; 15% thereafter, pursuant to
Paragraphs 11.2.1(i), (ii), (iii), (iv), (v), (vi)
and (vii)
Rancon Pacific - 1% of cash distributions until the Unit Holders of
Realty LP Preferred Units have been distributed $7.00 per
Unit, and Unit Holders of Exchange Units until they
have been distributed $10.00 per Unit; 20% until the
Preferred Unit Holders have been distributed an
additional $3.00 per Unit; 20% thereafter pursuant to
Paragraphs 11.1(a),(b),(c), (d)
Rancon Ontario - 1% of distributions of Cash From Operations pursuant
Freeway Properties to Paragraph 11.1
- 1% of distributions of Cash Other Than From
Operations until adjusted invested capital has been
reduced to 0 plus a Holder Preferential Return equal
to 10% per annum cumulative non-compounded on the
adjusted invested capital; 100% to the General
Partner until cumulative distributions to the General
Partner are equal to 25% of net cash from sale or
refinancing; 0% thereafter, pursuant to Paragraphs
11.2.1(i), (ii),(iii),(iv),(v) and (vi)
EXHIBIT C
ASSIGNMENT OF RIGHT TO RECEIVE
ORGANIZATIONAL AND TRANSITIONAL MANAGEMENT FEE
This Assignment of the right to receive an Organizational and
Transitional Management Fee ("O&T Fee") is made and entered into as of the 3rd
day of January, 1995 by and between Rancon Financial Corporation, a California
corporation ("Rancon") and Glenborough Inland Realty Corporation, a California
corporation ("Assignee").
WHEREAS, Section 9.2 of that certain Agreement of Limited Partnership
(the "Partnership Agreement") of Rancon Pacific Realty L.P., a Delaware limited
partnership dated as of September 30, 1987 (the "Partnership") entitles Rancon
to receive an O&T Fee as defined in the Partnership Agreement; and
WHEREAS, Rancon and Assignee have entered into that certain Agreement
as of the ___ day of December, 1994, wherein Rancon agreed to assign to Assignee
all of its right, title and interest in and to the O&T Fee.
NOW, THEREFORE, in consideration of the above, the parties hereto agree
as follows:
1. Assignment. Rancon hereby sells, assigns and transfers to
Assignee all of its right, title and interest in and to the O&T Fee as defined
in Section 9.2 of the Partnership Agreement.
2. Payment to Assignee. Any distributions, proceeds or earnings
assigned under this Assignment received by Rancon shall be deemed to have been
received in trust for the benefit of Assignee and such distributions, proceeds
or earnings shall be paid by Rancon to Assignee as soon as practicable, but no
later than five days following receipt of same.
3. Notice to the Partnership. Rancon shall notify the Partnership
that Assignee is entitled to payment of the O&T Fee and authorize the payment of
such fee by the Partnership directly to Assignee.
4. Governing Law. This agreement shall be governed by the laws of
the State of California.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the day and
year first above written.
RANCON FINANCIAL CORPORATION,
a California corporation
By: _______________________________________
Xxxxxx X.X. Xxxxxxxxxxx
Its: _______________________________________
President
GLENBOROUGH INLAND REALTY CORPORATION
By: _______________________________________
Its: _______________________________________
Authorized Officer
EXHIBIT D
PROXY
WHEREAS, Xxxxxx Xxx Xxxxxxxxxx ("Xxxxxxxxxx") is a general partner of
_______________________________________, a California limited partnership (the
"Partnership"); and
WHEREAS, Glenborough Inland Realty' Corporation, a California
corporation ("Glenborough") desires to acquire certain of Xxxxxxxxxx'x rights,
title and interest in the general partnership interests of the Partnership (the
"ownership Interests"); and
WHEREAS, Xxxxxxxxxx also owns units of limited partnership interests
("Units') in the Partnership; and
WHEREAS, Glenborough in acquiring the Ownership Interests desires that
Xxxxxxxxxx not retain, directly or indirectly, any voting rights as a limited
partner or Unit holder of the Partnership; and
WHEREAS, Xxxxxxxxxx, to induce to Glenborough to acquire the Ownership
Interests of the Partnership, will grant this proxy to Glenborough.
NOW, THEREFORE, in consideration or the purchase of the ownership
Interests by Glenborough, Xxxxxxxxxx [and Xxxxxx Xxx Xxxxxxxxxx and Family
Trust] as owner[s] of [__________] Units of the Partnership, revoke any previous
proxies and appoint Glenborough as my [our] proxy to attend all meetings of the
Partnership's limited partners and to vote, execute, consent and otherwise
represent those Units for me [us] in the same manner and with the same effect as
if I [we] was [were] personally present.
This proxy is irrevocable until ten years from the date hereof or until
the date Xxxxxxxxxx sells his Units, whichever is earlier.
Nothing contained in this proxy shall prohibit Xxxxxxxxxx from selling,
assigning, transferring, hypothecating, pledging or otherwise disposing of his
units or any interest therein.
[This proxy is granted pursuant to Section 705(e) of the California
General Corporation Law and pursuant to Section 15637(j) of the Revised Limited
Partnership Act].
Dated: January 3, 1995
____________________________________________
Xxxxxx Xxx Xxxxxxxxxx
____________________________________________
Xxxxxx Xxx Xxxxxxxxxx, Trustee
Xxxxxx Xxx; Xxxxxxxxxx Family Trust
EXHIBIT E
(Intentionally Omitted)
EXHIBIT F
Management Administration and Consulting Agreement
MANAGEMENT, ADMINISTRATION AND CONSULTING AGREEMENT
This Management, Administration and Consulting Agreement (the
"Agreement"), dated as of December 15, 1994 is made and entered into by and
between Glenborough Inland Realty Corporation, a California corporation
("Glenborough"), and each of those entities described on Exhibit A attached
hereto (the "General Partners") which constitute the general partners of the
limited partnerships described on Exhibit A attached hereto (the "Limited
Partnerships"), and the Limited Partnerships. The General Partners have entered
into this Agreement on behalf of each of the partnerships for which they serve
as general partners. Each of the Limited Partnerships is referred to herein as a
"Partnership."
RECITALS
A. The parties intend by this Agreement to provide the terms and
conditions whereby Glenborough will provide for the Partnership (i) property
management services for the properties owned, operated or managed, in whole or
in part, by the Partnerships; (ii) partnership administrative services which the
General Partners are obligated to perform for or render to the Partnerships; and
(iii) real estate brokerage services and/or consulting services concerning the
acquisition or disposition of property interests, including, without limitation,
leases.
B. This Agreement is drafted as if it were made and entered into
by and between Glenborough and only one Partnership. However, notwithstanding
the use of the word "Partnership" in the singular form, each and every provision
of this Agreement applies to each and every Partnership listed on Exhibit A
attached hereto. Further, the provisions for the management, administration and
consulting services contained and defined herein shall apply to each Partnership
separately.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual covenants and
agreements set forth in this Agreement, the parties agree as follows:
EXHIBIT G
(Intentionally Omitted)
EXHIBIT H
SCHEDULE OF FINANCIAL STATEMENTS
PUBLIC PARTNERSHIPS
Partnership Form 10-K as of: Form 10-Q as of:
----------- ---------------- ----------------
Rancon Realty Fund I December 31, 1993 September 30, 1994
Rancon Realty Fund II December 31, 1993 September 30, 1994
Rancon Realty Fund III Draft - September June 30, 1994
30, 1994
Rancon Realty Fund IV October 31, 1993 July 31, 1994
Rancon Realty Fund V November 30, 1993 August 31, 1994
Rancon Development Fund VI November 30, 1993 August 31, 1994
Rancon Income Fund I November 30, 1993 August 31, 1994
Rancon Pacific Realty L.P. December 31, 1993 September 30, 1994
PRIVATE PARTNERSHIPS
Rancon Ontario Freeway Properties - Unaudited financial statements as of
September 30, 1994 and December 31, 1993, as provided to the partners.
------------------
1- Consolidated financial statements include Six Otay Mesa L.P., Six
Stoneridge, RC/RBC J.V., Xxxxxx X.X. and RC Inland Development.
2- Consolidated financial statements include Villa La Jolla Partners.
EXHIBIT I
Schedule of Investment Assets
Partnership Investment Assets
Fee simple title:
Rancon Realty
Fund I 1. Mountain View Plaza, Xxxx Co.
16918 Hwy. 14, Mojave (PM 6115)
Vacant: 2, 10, 11
Improved: 1, 3, 4, 5, 9
2. Rancon Commerce Center, Temecula, Riverside, Co.
Auto Center: 28696 & 28730 Via Montezuma
Former Bowling Center: 28720 Via Montezuma
Vacant Lots: Tract 16178-1: 8, 9, ptn. 10,
ptn.11-12
Xxxxx 00000-0: 13,14
Xxxxx 00000-0: 11
Fee simple title to:
Rancor Realty
Fund II 1. Xxxx Xxxxxxxx, Murrieta, Riverside Co.
(LLA #2778) 65 AC+/-in escrow to be sold: and,
slopes not accepted by County/City
Fee simple title to:
Rancon Realty
Fund III 1. GDV Property (N/W cor I-10 & Tippecanoe) San
Bernardino Co.
(9 AC+/- in Tract 2743 (38/47) + ptn. Xxx 0, Xxx 00,
XX 7/2)
2. Rancon Center Rancho Cucamonga, San Bernardino Co.
Civic Center II (3/8568) 0000 Xxxxx Xxx., R.C.
Civic Center III (2/8568) 0000 Xxxxx Xxx., R.C.
Vacant Lots: 3/10444 7.4 AC
3'+ ptn. 2/10696 33 AC
2/11236 1.8 AC
Fee simple title to:
Rancon Realty
Fund IV 1. Lake Elsinore Square, Lake Elsinore, Riverside Co.
(NW Cor I-15 + Central) 24 AC+/-
2. Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxx Xx.
(2/23426) on Ynez Road 13.4 AC+/-
3. Shadowridge Woodbend Apartments
1500 Shadowridge, Drive, Vista San Diego Co.
4. Rancon Perris Retail, Perris, Riverside Co.
(17 AC SE Cor Hwy. 215 + Fourth St.)
5. Tri City Corporate Center, San Bernardino Co.
(NE Cor I-10 + Xxxxxxxx Ave)
Vacant Lots:
P.M. 11745 5: (Rmdr) 3.19 AC
Xxxxx 00000: 10 2.41 AC
11 2.80 AC
31 (Rmdr) 7.40 AC
32 7.20 AC
Ptn 34 12.93 AC
P.M 14007: 4 0.39 AC
(vacant-575 E. Hospitality)
6 0.25 AC
(vacant-525 E. Hospitality)
P.M. 14126: 1 0.94 AC
A 13.48 AC Common
Parking Area
P.M. 14703 (Unbuilt Ptn. Promo. Retail Ctr)
4 - vacant
5 - Blockbuster Music
6 - Discovery Zone
A & B - Parking - 5.89 AC
Improved: 33+Ptn 34/12034 5.32 AC:
000, 000 X. Xxxxx
(Xxxxxxxx Bus. Ctr. #l)
1/12054: 000 Xxxxxxxxxx Xxx
2/12054: 000 Xxxxxxxxxx Xxx
4/12054: 420, 000 Xxxxxxxxxxx
Xxxx (Retail Center)
P.M. 14703: Promotional Retail Center
l - 000 X. Xxxxxxxxxxx Xxxx
("Shops")
2 - 000 X. Xxxxxxxxxxx Xxxx
(CompUSA)
3 - 000 X. Xxxxxxxxxxx Xxxx
(PetSmart)
Fee simple title to:
Rancon Realty
Fund V 1. Rancon Ontario Business Center, Ontario
San Bernardino Co.
Vacant: Ptn. Xxx 0, Xxx. 00, Xxxxx 0000 - 35 AC+/-
Improved P.M. 101898 (1-5)
0 - 0000 Xxxxxx Xxxxxx Xxxx.
0 - 0000 Xxxxxx Empire Blvd.
0 - 000 Xxxxxxxxxx Xxx.
0 - 0000 Xxxxxxxxx
5 - 5525 Gibraltar
2. Nuevo Business Park ("Perris 84"), Perris,
Xxxxxxxxx Xx. XX Xxx. Xxx 000xXxxxx Xxxx - 00 AC+/-
3. Ethanac Road Commercial Center ("Perris 24"),
Perris, Riverside Co. 24 AC
4. Tri City Corporate Center
Vacant: 1/11370 - 1.57 AC
14/12034 w/ Ptn. 13 + 12 - 5.2 AC
4/12902 - 0.58 AC
3/14703 - 0.46 Common Parking Area
A/14007 - 0.37 Common Parking Area
1/13910 - 0.63 AC
5/13910 - 1.07 AC
6/13910 - 0.31 AC
7/13910 - 0.74 AC
8/13910 - 0.86 AC
9/13910 - 1.26 AC
10/13910 - 0.33 AC
11/13910 - 0.54 AC
12/13910 - 0.81 AC
14/13910 - 0.80 AC
15/13910 - 0.27 AC
16/13910 - 0.58 AC
A & B/13910 - parking
Improved:
12 + ptn 13/12034: 000x000 X.
Xxxxxxxx
Ptn 13. 000 X. Xxxxxxxx
2/13910 "One Parkside" -
000 Xxxxxxxxxxx Xxxx
0/00000 "Xxxxxx Xxxxxx #0" -
621 + 000 X. Xxxxxxxx Dr.
4/13910 "Garden Xxxxxx #0 -
000 X. Xxxxxxxx Xxxxx
13/13910 "Lakeside Tower" -
000 X. Xxxxxxxxxxx Xxxx
C/33910 Lake
Fee simple title to:
Rancon Development
Fund VI 1. Menifee Ranch, Sun City, Riverside Co. - 186 AC+/-
2. Deer Springs, San Marcos, San Diego Co.
253 AC+/-
Fee simple title held by Six Otay Mesa LP:
3. Rancon Otay Industrial, Otay Mesa, San Diego -
246 AC+/-
GP: Property Six Management Corporation: 0%
LP: Rancon Development Fund VI: 100%
Fee simple title held by Six Stoneridge LP:
4. Stoneridge I, Xxxxxx Valley, Riverside Co.
48 AC+/- (subject to settlement; discussions
underway)
5. Stoneridge II, Xxxxxx Valley, Riverside Co.
242 AC+/-
GP: Property Six Management Corporation: 0%
LP: Rancor Development Fund VI: 100%
Fee simple title held by Rancon Business Center/ Rancho
California, joint venture:
6. Rancon Business Center, Murrieta, Riverside Co.
Rmdr. 78 MB 8/359 7.8 AC
PM 22318-1: 1-4, 8-10 9 AC+/-
PM 24991: 1-4 93 AC (includes creek)
PM 24991: Ptn 17 81.7 AC
PM 21184-1: 8,9,19 3.0 AC
Partners: RCDF VI - 89.9%
Xxxxxx L,P. - 10.1% (GP: RFC 1% &
LP: RCDF' VI L.P. 99%)
Fee simple title to:
Rancon Income
Fund I 1. Bristol Medical Center
2720 + 0000 Xxxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxx Co.
2. Aztec Xxxxxxx Xxxxxxxx Xxxxxx
0000 Xx Xxxxx Xxxx., Xxx Xxxxx
3. Aham Tor
00000 Xxxxx Xxxxxx + 28715 Via Montezuma
Temecula, Riverside Co.
Fee simple title to:
Rancon Corporate
Center L.P. 1. Rancon Corporate Center,
Murrieta, Riverside Co.
PM 24382: 1-9 24 AC+/-
Fee simple title to:
Rancon Ontario
Freeway Properties 1. Ontario 21, Ontario, San Bernardino Co.
PM 6945: 1-7 21 AC+/-
Fee simple title to:
Rancon Pacific 1. Pacific Bay Club Apartments
Realty, L.P. 4070 Huerfana, San Diego (La Jolla)
2. La Jolla Canyon Apartments
9515 Genessee Avenue, San Diego (La Jolla)
Fee simple title held by
Villa La Jolla Partners, J.V.
3. Villa La Jolla Condos
8540 Via Mal1orca, San Diego (La Jolla)
Partners: Rancon Pacific Realty, L.P. - 88.73%
Transamerica La Jolla Partners - 11.27%
SCHEDULE 14.a
Liens/Encumbrances on Ownership Interests
A. Security Interests in Favor of CASC Corp.
B. Security Interests in Favor of Rancon Current Yield 12+, L.P.
C. Certain portions of the General Partner interests have been assigned to
individuals that would entitle them to a portion of cash from
operations distributions or distributions from sales. These assignments
are between Xxxxxx Xxx Xxxxxxxxxx and the individuals. Recourse from
them is to Xxxxxx Xxx Xxxxxxxxxx and not the Partnership.
SCHEDULE 14.e.ii
Compliance With Laws
A. All Partnerships - Partnerships may not be in compliance with certain
States' (other than California) partnership information return filing
requirements.
B. Rancon Realty Fund IV - Xxxxxxxx Landfill (discussions underway).
SCHEDULE 14.e.iv
Pending Litigation
A. Rancon Realty Fund III - Imperial Thrift & Loan (by virtue of Fund
III's status as indemnitor in favor of Rancon Financial Corporation and
Xxx Xxxxxxxxxx as guarantors of Imperial/Sumarco loan).
B. Rancon Ontario Freeway Properties - Potential litigation by investor
Kassel. No formal claim asserted or action filed. Correspondence only.
C. Rancon Development Fund VI/Stoneridge I - Litigation Pressiman Family
Trust. Ongoing settlement discussions.
SCHEDULE 14.e.v
Defaults
A. Rancon Development Fund VI - CASC Corp. Loan (Menifee Property)
B. Rancon Realty Fund III - Civic Center III - Rancho Cucamonga Mitsui
Loan - Delinquent Property Taxes - 12/94 installment
C. Rancon Business Center - Capital Financial Loans - Delinquent Property
Taxes - 12/94 installment
D. Delinquent Property Taxes - (Schedule previously delivered to
Glenborough)
SCHEDULE 00.x.xx
Material Agreements/Contracts
AGREEMENTS
A. Miscellaneous Agreements:
1. Regional Facilities Agreement
Fund IV & V - Redevelopment Agency, City of San Bernardino
2. Development Agreement
Fund IV & V - City of San Bernardino
3. Joint Sewer Development Agreement
Fund V/Rancon Ontario Freeway Properties - Santa Fe Pacific
Realty Corporation
4. Standard Sewer Facilities And/Or Service Agreement
Fund V - Eastern Municipal Water District of San Jacinto
5. Consulting Agreement
Fund V/Perris 17, 24, 83 - Meridian West Management Corp. Fund
IV & V - City of San Bernardino
6. School Mitigation Agreements
Fund VI - Val Verde School District
Perris Union High School District
Financing Agreement
Fund VI - Nuview Union School District
7. License and Indemnity Agreement
Rancon Business Center - Rancho California Water District
8. Agreement to Pay Special Taxes
Rancon Business Center - Rancho California Water District
9. Various Indemnity Agreements - Title Companies, in connection
with Constructions Loans indemnifying against mechanics liens.
B. Architectural Agreements:
1. The Xxxxx Partnerships/Blockbuster Discovery Zone
Build To Suit - Tri City
2. Xxxxxx Xxxx & Xxxxxx/Bally's Health Club
Build To Suit - Tri City
3. Hill Pinckert/Inland Counties Regional Center
Build To Suit - Tri City
C. Real Estate Broker Agreements:
1. Income Fund I - Xxx & Associates, expires 12-31-94
2. Realty Fund III - CB Commercial, expires 12-31-94
Xxxxx & Xxxxx, expires 10-31-95
Xxxx Commercial, expires 10-31-95
3. Realty Fund IV & V - Xxxxxxx & Xxxxxxxxx, expires 12-31-94
4. Realty Fund V - Xxxxx & Xxxxx, expires 8-14-95
SCHEDULE 00.x.xx
Material Agreements/Contracts
(Continued)
CONTRACTS
A. Major Construction Contracts:
1. X.X. Xxxxxx/Blockbuster Discovery Zone
Build To Suit - Tri City
2. X.X. Xxxxxx/Bally's Health Club
Build To Suit - Tri City
3. Xxxxxx Construction/Inland Counties Regional Center
Build To Suit - Tri City
B. Tenant Improvement Contracts:
Pacific Interior Design
South Coast Electric
Ontario Neon
Xxxx Xxxxx Painting
Xxx Xxxxxxx Plumbing
XxXxxxxx Equipment Corp
Apostle Glass
Thiem Mechanical Co. Inc.
Via Verde Drywall
Xxxxxxx Hardware
MSA Industries
Pyro Automatic Protection
C. Property Management Contracts:
1. Advertising - R.C. Pacific Realty L.P.
2. Pay Telephone Agreement - Income Fund I
3. Security Agreements - Funds IV & V
4. Trash Pick-up - Rancon Realty Fund I
5. Elevator Contract - R.C. Pacific Realty L.P.
6. Association Management/East Otay Mesa Planning Area - Fund VI
D. Various:
Gas Monitoring Tri City Landfill - Funds IV & V
SCHEDULE 14.e.vii
Recourse and Guaranteed Debt
RECOURSE DEBT
Borrower Lender Initial Amount
-------- ------ --------------
Rancon Development Fund VI CASC Corp. $ 2,500,000
Rancon Business Ctr. JV Capital Financial 400,000
Rancon Business Ctr. JV Capital Financial 400,000
Rancon Fund IV Chino Valley 2,700,480
Rancon Fund V Chino Valley 2,800,000
Villa La Jolla Partners Xxxxx Fargo 17,250,000
GUARANTEED DEBT
Borrower Lender Initial Amount
-------- ------ --------------
Rancon Development Fund VI CASC Corp. $ 2,500,000
Rancon Business Ctr. JV Capital Financial 400,000
Rancon Business Ctr. JV Capital Financial 400,000
Rancon Fund IV Chino Valley 2,700,480
Rancon Fund V Chino Valley 2,800,000
Rancon Fund III Imperial Bank 1,560,000
Rancon Fund V Omaha Woodman 6,000,000
Life Ins. Co.
SCHEDULE 14.e.ix
Material Liabilities/Hazardous Substance Disclosure
Rancon Realty Fund I Mountain View Plaza, Xxxx Co. is adjacent to a
municipal airport.
Rancon Realty Fund II Xxxx Xxxxxxxx 65 acres in escrow has soils
problems of alluvial/colluvial material and
potentially poor compaction.
Rancon Realty Fund III Rancon Center Rancho Cucamonga, vacant lots had
historically been planted as a vineyard.
Rancon Realty Fund IV Lake Elsinore Square was an old swap meet site.
Rancon Perris 17 was farmland. Tri City was an
old airport and a portion was a landfill.
Rancon Realty Fund V Rancon Ontario Business Center was an old
vineyard and is near the Kaiser facility east.
Nuevo 84 was previously farmland. Ethanac 24 was
previously farmland. Tri City Corporate Center
was an old airport.
Rancon Development Fund VI Menifee 186 was previously farmland. Rancon Otay
Mesa was previously farmland, has vernal pools
and archaeological site. StoneRidge I and II were
both previously farmland.
Rancon Ontario Fwy. Potential impact from Kaiser facility to east.
Properties
Rancon Pacific Asbestos in all three apartment facilities.
SCHEDULE 14.e.x
Lease Defaults
A. Rancon Realty Fund IV - Show Industries Inc. (Blockbuster Music) -
Tenant alleged that Rancon defaulted construction schedule in building
turnover date and is attempting to terminate lease. RRFIV has rejected
claimed default and is currently reviewing alternatives.
SCHEDULE 14.e.xi
Bankruptcies
A. Rancon Development Fund VI - Six Stoneridge, L.P.
SCHEDULE 14.e.xiii
Government Actions
A. Rancon Development Fund VI - Deer Springs Estates. Site under
investigation by county of San Diego for possible use as a landfill -
one year from April 94 - April 95.
B. Rancon Development Fund VI - Otay Mesa. General Plan Amendment approved
by the County of San Diego restricting approximately 50 acres from
development.
C. Rancon Realty Fund IV - Xxxxxxxx Landfill.
SCHEDULE 14.e.xiv
Liens Disclosure
Delinquent Property Taxes
Owner Project Amount
----- ------- ------
Rancon Realty Fund II FC Murrieta $281,445
Rancon Realty Fund III GDV $ 14,554
Rancon Realty Fund III RCRC $ 95,717
Rancon Development Fund VI RBC/JV $729,131
Six Otay Otay Mesa $855,491
Rancon Development Fund VI Menifee $ 56,870
Six Stoneridge Stoneridge I $ 27,533
Six Stoneridge Stoneridge II $265,276
Rancon Development Fund VI Deer Springs $181,766
Note: All amounts include December, 1994 installment, plus interest, penalties
and redemption fees through December, 1994
