AGREEMENT AMONG PARTNERS
This AGREEMENT AMONG PARTNERS dated as of the 1st day of January, 2003, by
and among RAM FUNDING, INC., a Delaware corporation ("RAM"), RESOURCES CAPITAL
CORP., a Delaware corporation ("RCC"), PRESIDIO AGP CORP., a Delaware
corporation ("Presidio") and XXXXXX OPPORTUNITY FUND 2, LLC, a California
limited liability company ("Xxxxxx")..
WITNESSETH:
WHEREAS, RAM, RCC and Presidio (the "General Partners") are the general
partners of Resources Accrued Mortgage Investors L.P.-Series 86, a Delaware
limited partnership (the "Partnership");
WHEREAS, simultaneously herewith all of the issued and outstanding shares
of RAM are being acquired by Knight Xxxxxx, Inc., a Delaware corporation
("KFI");
WHEREAS, KFI is the general partner of KFI Properties, L.P., a Delaware
partnership ("KFI Partnership"), which, together with KFI Properties, L.P., has
filed with the Securities and Exchange Commission a Registration Statement on
Form S-4 (File Nos. 00-0000000 and 00-0000000) (the "Registration Statement")
pursuant to which, among other things, KFI Partnership is proposing to have the
Partnership merged with and into it (the "Restructuring");
WHEREAS, Xxxxxx is a limited partner in the Partnership and an affiliate of
RAM;
WHEREAS, the General Partners desire to allocate their respect rights and
obligations as general partners of the Partnership as provided for in the
Amended and Restated Agreement of Limited Partnership of the Partnership (the
"Partnership Agreement") and under applicable law;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Authority of RCC. Except as otherwise provided herein, the right to
manage, control and conduct the business and affairs of the Partnership shall be
vested exclusively in RCC including, without limitation, filing all periodic
reports with the Securities and Exchange Commission and retaining professionals
on behalf of the Partnership. All decisions affecting the policy and management
of the Partnership shall be made by RCC, and Presidio and RAM agree to abide by
any such decision. Except as otherwise specifically provided herein, RCC is
authorized and empowered to carry out and implement any and all actions to
accomplish the purposes and objects of the Partnership. Neither Presidio nor,
except as specifically provided herein, RAM, shall take part in the management
or control of the business of the Partnership.
2. Authority of RAM. Except as otherwise provided herein, RAM shall
have the exclusive right to act on behalf of the Partnership solely in
connection with the Restructuring including, without limitation, the right to:
(1) execute such documents and instruments on behalf of the
Partnership as RAM shall determine in its sole discretion as
appropriate or necessary with respect to the Registration
Statement or the Restructuring;
(2) provide such information or statements as may be
reasonably requested by the Knight Partnership in connection
with the Registration Statement or the Restructuring;
(3) cause the Partnership to execute any and all agreements,
contracts, documents, certificates and instruments necessary
or convenient in connection with the Registration Statement or
the Restructuring;
(4) propose a plan of reorganization on behalf of the
Partnership and its partners in the event that a petition
filed against the Partnership seeking reorganization,
liquidation or arrangement or similar relief under federal or
state bankruptcy laws has been approved by a court of
competent jurisdiction.
3. Authority of Presidio. Except for such rights as may otherwise be
delegated to Presidio by RCC or as provided for in the Partnership Agreement and
which do not conflict with the terms hereof, Presidio shall have no rights with
respect to the operations and management of the Partnership.
4. Actions Requiring the Consent of RCC and RAM. (a) Notwithstanding
anything herein to the contrary, without the consent of RAM and either RCC or
Presidio, none of the General Partners shall have the authority, to cause the
Partnership to:
(1) acquire and hold by lease or purchase, develop, operate,
own, sell, convey, finance, improve, assign, transfer,
mortgage, lease or exchange any property other than the
current property held by the Partnership;
(2) maintain, finance, improve, develop, expand, own, grant
options with respect to, mortgage or lease its property;
(3) borrow money and issue evidences of indebtedness, and to
secure the same by deed of trust, mortgage, security interest,
pledge, or other lien on the assets of the Partnership;
(4) prepay in whole or in part, negotiate, refinance, recast,
increase, renew, modify or extend any debt or any secured or
other indebtedness of the Partnership
(5) dissolve;
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(6) except as contemplated by the Registration Statement and
the Restructuring, merge or consolidate with any other entity
if the Partnership is not the surviving or resulting entity in
such merger or consolidation;
(7) commence a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or of a
substantial part of its property;
(8) admit an inability to pay its debts generally as they
become due;
(9) make a general assignment for the benefit of its
creditors;
(10) place itself voluntarily under the protection of the law
of any jurisdiction relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of
debts.
(b) Neither RAM nor Presidio shall take any action with
respect to any matter which the RCC has the exclusive right to
determine the actions of the Partnership. RCC shall not take
any action with respect to any matter which RAM or Presidio
has the exclusive right to determine the actions of the
Partnership.
5. Indemnification. (a) RCC shall defend, hold harmless and indemnify
RAM, its officers, directors, shareholders, agents, employees and affiliates
from and against the actual costs, expenses and damages, including, but not
limited to, reasonable attorney's fees and disbursements, incurred by any of
them as a consequence of any claims made or action filed against them or the
Partnership which result from or arise out of any of actions taken by RCC or
Presidio, it its capacity as a general partner of the Partnership on behalf of
the Partnership and not consented to by RAM.
(b) Xxxxxx and RAM shall defend, hold harmless and indemnify
RCC, Presidio and their respective officers, directors, shareholders,
agents, employees and affiliates from against the actual costs,
expenses and damages, including, but not limited to, reasonable
attorney's fees and disbursements, incurred by any of them as a
consequence of any claims made or action filed against them or the
Partnership which result from or arise out of any of actions taken by
RAM, it its capacity as a general partner of the Partnership on behalf
of the Partnership, including, without limitation, any actions taken in
connection with the Registration Statement or Restructuring.
(c) If any party entitled to indemnification hereunder (the
"Indemnitee") receives notice or otherwise obtains knowledge of any
matter with respect to which a party hereto (the "Indemnifying Party")
may become obligated to defend, hold harmless or indemnify the
Indemnitee hereunder, then the Indemnitee shall promptly deliver to the
Indemnifying Party a written notice describing such matter in
reasonable detail and specifying the estimated amount of the damages
that may be incurred by the Indemnitee in connection therewith. The
Indemnifying Party shall have the right, at its option, to assume the
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defense of such matter at its own expense and with its own counsel,
provided such counsel is reasonably satisfactory to the Indemnitee. If
the Indemnifying Party elects to assume the defense of such matter with
counsel reasonably satisfactory to the Indemnitee:
(i) notwithstanding anything to the contrary contained herein,
the Indemnifying Party shall not be required to pay or otherwise
indemnify the Indemnitee against any attorneys' fees or other expenses
incurred on behalf of the Indemnitee in connection with such matter
following the Indemnifying Party's election to assume the defense of
such matter;
(ii) the Indemnitee shall fully cooperate as reasonably
requested by the Indemnifying Party in the defense or settlement of
such matter;
(iii) the Indemnifying Party shall keep the Indemnitee
informed of all material developments and events relating to such
matter; and
(iv) the Indemnitee shall have the right to participate, at
its own expense, in the defense of such matter.
6. Entire Agreement; No Modification Except in Writing. All prior
discussions, agreements, contracts, promises, representations and statements, if
any, among the parties hereto, or their representatives, are merged into this
Agreement and this Agreement, together with the Schedules and Exhibits hereto,
shall constitute the entire agreement and understanding among them. No waiver,
modification or amendment of the terms of this Agreement shall be valid unless
in writing signed by the party to be charged and only to the extent therein set
forth.
7. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, administrators,
executors, successors and assigns.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute a single agreement.
9. Captions. The captions appearing in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Agreement or any of the provisions hereof.
All parties hereto hereby agree that no provisions of this Agreement shall be
construed against any party as the drafter thereof.
10. Legal Action. In any action at law or in equity arising out of this
Agreement, the prevailing party will be entitled to reasonable attorneys' fees
and court costs in addition to any other relief to which it may be entitled.
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11. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
reference to its principles of conflict of laws.
12. Costs and Expenses. Except as otherwise provided herein, each party
hereto shall bear and pay its or his own costs and expenses incurred in
connection with negotiation execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
RAM FUNDING INC.
By:/s/ XXXXXX X. XXXXX
RESOURCES CAPITAL CORP.
By:/s/ XXXXX XXXXXXXXX
Xxxxx Xxxxxxxxx
Executive Vice President
PRESIDIO AGP CORP.
By:/s/ XXXXX XXXXXXXXX
Xxxxx Xxxxxxxxx
Executive Vice President
XXXXXX OPPORTUNITY FUND 2, LLC
By Xxxxxx Capital Management, LLC, Manager
By: /s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx, Manager
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