EXHIBIT 99.3
RESTATED SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT dated as of March 15, 1994, and restated as of April
27, 1994 by and among SAHI, Inc., a Delaware corporation ("SAHI, Inc."), SAHI
Partners, a Delaware general partnership ("SAHI Partners" and, together with
SAHI, Inc., "SAHI") and Angeles Participating Mortgage Trust, a California
Business Trust (the "Company").
WHEREAS, SAHI Partners owns 244,100 Class A shares of the Company ("Class A
Shares") and is the holder of a Warrant (the "Class A Warrant") for the right to
purchase an additional 5,000,000 Class A Shares which shares and Class A
Warrant, on a fully-diluted basis, represent 46.31 percent of the voting power
of the Company and, additionally, SAHI Partners owns 1,275,000 Class B shares of
the Company ("Class B Shares") which represent approximately 33 percent of the
voting power of the Company;
WHEREAS, SAHI, Inc. is the holder of a Warrant (the "Class B Warrant") for
the right to purchase an additional 2,500,000 Class B Shares which, if
exercised, would preserve the voting power of the Company held by the entirety
of the Class B Shares;
WHEREAS, the Class B Shares were previously owned by SAHI, Inc. and SAHI,
Inc. subsequently transferred the Class B Shares to SAHI Partners; and
WHEREAS, in order to induce the Company to issue the Class A Warrant to
SAHI Partners and the Class B Warrants to SAHI, Inc., SAHI Partners and SAHI,
Inc. agreed to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Protection of Cash Reserves. Each of SAHI Partners and SAHI,
Inc. agree that it shall take no action, directly or indirectly, which would
cause the cash or cash equivalent reserves of the Company to be reduced below
$2,000,000 at any time on or before December 31, 1994; below $1,000,000 at any
time on or before December 31, 1995; or below $500,000 at any time on or before
December 31, 1996 (including, without limitation, terminating or amending or
attempting to terminate or amend that certain Trust dated as of 11/23/93 by and
between the Company and Xxxxxx X. Xxxxxxxxx, as amended 3/14/94).
Section 2. Interested Transactions. Each of SAHI Partners and SAHI, Inc.
agree that during the three year period beginning on the date of the Company's
next annual meeting it shall take no action, directly or indirectly, which would
cause the Company to enter into any Interested Transactions (as defined below)
unless any such Interested Transaction has been approved by a majority of the
Independent Trustees (as defined below) of the Company.
Section 3. Independent Trustees. Each of SAHI Partners and SAHI, Inc. shall
take all actions within their powers, to cause the election of at least two
Independent Trustees
to serve on the Company's Board of Trustees during the three year period
beginning on the date of the Company's next annual meeting; provided that in no
event shall SAHI Partners or SAHI, Inc. be obligated to take any action which
would prevent them from electing a majority of the entire Trustees on the
Company's Board of Trustees.
Section 4. Fairness Opinion Expenses. SAHI Partners and SAHI, Inc. jointly
and severally agree to reimburse the Company for fifty percent of the costs
incurred by the Company in securing the fairness opinions described in Section
10 of the Class A and Class B Warrants; provided, however, that such
reimbursement obligation shall not exceed $25,000 in the aggregate. SAHI
Partners and/or SAHI, Inc. shall make such reimbursement promptly upon receipt
of an itemized statement from the Company of such costs.
Section 5. Transfers. During the term of this Agreement, SAHI Partners and
SAHI, Inc. shall not transfer or undertake a series of transfers of Class A
Shares or Class B Shares which in the aggregate represent over 9% of the voting
power of the Company unless the transferees thereof agree to be bound by the
terms hereof pursuant to a written agreement in form and substance reasonably
acceptable to the Company.
Section 6. REIT Status. SAHI Partners and SAHI, Inc. will not intentionally
engage in any actions which jeopardize or cause the Company to violate its
qualification as a Real Estate Investment Trust under Part II, Subchapter M of
Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended.
Section 7. Definitions. The following terms have the meanings set forth
below:
"Interested Transactions" means to:
(a) merge, consolidate with, or otherwise acquire all or any
portion of the business, assets or securities of any SAHI Affiliate or
sell, transfer or assign any portion of the Company's business,
assets or securities to any SAHI Affiliate;
(b) make any loans or other advances of money to, or guarantee
with or for the benefit of, any SAHI Affiliate or any officer,
director or shareholder (both direct and indirect) of any SAHI
Affiliate;
(c) sell, lease, transfer or otherwise dispose of any property or
assets from, entertain or maintain any contract, agreement or
understanding with, or otherwise enter into, or be a party to, any
transaction with, any SAHI Affiliate or any officer, director, or
shareholder (both direct and indirect) of any SAHI Affiliate;
(d) take any actions (other than the entry into this Agreement,
the purchase of the Class A Warrant and the Class B Warrant, and the
consummation of the transactions contemplated herein and therein)
which would
result in one or more publicly-traded classes of the Company's equity
securities no longer having the attributes of public ownership; or
(e) take any actions beneficial to any SAHI Affiliate which would
be detrimental to a material number of public shareholders of the
Company;
provided, however, the actions described in (a), (b) and (c) above
shall not constitute an Interested Transaction if (i) the action taken
has been determined by the Company's Board of Trustees to be pursuant
to the reasonable requirements of the Company's business and upon fair
and reasonable terms which are no less favorable to the Company than
would be obtained in a comparable arms-length transaction with an
independent third-party and (ii) the transaction involves less than
$500,000.
"Independent Trustees" shall means a Trustee who is (i) not an
officer, employee, agent, shareholders (direct or indirect) or
representative of the Company, SAHI Partners, SAHI, Inc., or any SAHI
Affiliate, (ii) not a spouse, sibling, lineal descendant, ancestor, aunt,
uncle or first cousin of any of the aforesaid Persons (including in-laws
and adopted relationships), and (iii) free of any relationship that would
interfere with the exercise of independent judgment, provided, however,
that Xxxxxx X. Xxxxxxxxx, J. D'Arcy Xxxxxxx and Xxxx X. XxXxxxxx shall be
considered Independent Trustees hereunder.
"Affiliate" of an entity means a person which directly or indirectly
through one or more intermediaries control, or is controlled by, or is
under common control with, such entity.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
Section 8. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement will be
effective against the Company, SAHI Partners or SAHI, Inc. unless such
modification, amendment or waiver is approved in writing by the Company, SAHI
Partners and SAHI, Inc.
Section 9. Successors and Assigns. This Agreement will bind and inure to
the benefit of and be enforceable by (a) the Company and its successors and
assigns and (b) SAHI Partners and SAHI, Inc. and their respective successors and
assigns.
Section 10. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be an original and all of which taken together
will constitute one and the same agreement.
Section 11. Descriptive Headings; Interpretation. The descriptive headings
in this Agreement are inserted for convenience of reference only and are not
intended to be part
of or to affect the meaning or interpretation of this Agreement. The use of the
word "including" in this Agreement shall be by way of example rather than by
limitation.
Section 12. Construction. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to conflicts of law principles.
Section 13. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and will be deemed to have been duly given when delivered
personally to the recipient, sent to the recipient by reputable express courier
(charges prepaid) or mailed by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
will be sent to the addresses indicated below:
To the Company:
Angeles Participating Mortgage Trust
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
With a copy to:
Xxxxxx Xxxxxx Xxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
To SAHI Partners or SAHI, Inc.:
c/o Starwood Capital Group, L.P.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Madison Xxxxx, Esq.
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
Section 14. Preamble; Preliminary Recital. The Preliminary Recitals
set forth in the Preamble hereto are hereby incorporated and made part of this
Agreement.
Section 15. Entire Agreement. This Agreement and the Class A and Class
B Warrants set forth the entire understanding of the parties, and supersede and
preempt all prior oral or written understandings and agreements with respect to
the subject matter hereof, including the Shareholders Agreement dated March 15,
1994.
Section 16. Third Party Beneficiaries. It is specifically contemplated
that the public shareholders of the Company be third party beneficiaries of this
Agreement.
Section 17. Termination. This Agreement will terminate automatically
and be of no further force and effect upon the earlier of (i) the third
anniversary of the Company's next annual meeting, or (ii) the expiration or
termination (without exercise) of the Class A and Class B Warrants.
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement as of the date set forth above.
ANGELES PARTICIPATING MORTGAGE TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its: President
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SAHI PARTNERS
By: SAHI, Inc., a general partner
By: /s/ Madison X. Xxxxx
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Its: Vice President
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SAHI, Inc.
By: /s/ Madison X. Xxxxx
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Its: Vice President
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