Agreement dated as of September 12, 1997 among Presidio Holding Company,
LLC, a New York limited liability company (the "Acquiror") and Xxxxxx X.
Xxxxxxx, Xxxx X. Xxxxxxxxx and Xxxx Xxxxxx (the "Class A Directors") in their
capacities as directors of Presidio Capital Corp., a British Virgin Islands
corporation ("Presidio"), and Xxxx Xxxxxx in his additional capacity as a
director of T-2 Holding, L.L.C. ("T-2").
W I T N E S S E T H :
WHEREAS, contemporaneously herewith, (i) the Class A Directors are
resigning from their positions as directors of Presidio and appointing
affiliates of Acquiror as their successors in accordance with Paragraph 81 of
the Articles of Association of Presidio and (ii) Xxxx Xxxxxx is resigning from
his position as a director of T-2; and
WHEREAS, the parties hereto desire to confirm the rights and benefits to
which the Class A Directors shall be entitled notwithstanding their
resignations.
NOW THEREFORE, in consideration of the mutual covenants and promises
provided herein, the parties agree as follows:
1. Acquiror hereby represents that it holds sole beneficial interest
directly or through Depository Trust Company in at least 60% of the shares of
Presidio (the "Shares") and has full and irrevocable authority to vote and
dispose of all such Shares.
2. The Acquiror agrees to take all necessary action to appoint two
additional directors as contemplated by Article 79A of the Articles of
Association of Presidio upon satisfaction of all requirements with respect
thereto under applicable law and the Memorandum and Articles of Association of
Presidio.
3. Acquiror agrees to cause Presidio and T-2 to maintain in effect for
six years from the date hereof for the benefit of the Class A Directors
policies of the directors' and officers' liability insurance maintained by
Presidio and T-2 as of the date hereof with respect to matters occurring on or
prior to the date hereof. The Class A Directors hereby waive any claim on the
amounts held for their benefit pursuant to the Class A Director Indemnification
Trust Agreement (which as of the date hereof equals approximately $8.5 million)
and hereby relinquish any claim to any further amounts otherwise required to be
held thereunder for such purpose in the future, in each case such waiver and
relinquishment to be effective upon satisfaction of the other conditions to
terminate the trust formed pursuant thereto (and the Class A Directors shall
sign such documents reasonably necessary to confirm such waiver and
relinquishment). Acquiror agrees to cause Presidio to maintain in effect for a
period of six years from the date hereof for the benefit of the Class A
Directors a net worth as of the last date of each calendar quarter of at least
$8.5 million.
4. Attached as Exhibit 1 is the Memorandum of Understanding Regarding
Compensation of Class A Directors of Presidio Capital Corp. (the "Memorandum";
defined terms used in this paragraph and not defined in this agreement shall
have the meaning contained in the Memorandum). The Acquiror agrees that the
Class A Directors' concurrent resignation is deemed to be a "removal or
termination without Cause" under the Memorandum. Acquiror agrees to cause
Presidio to immediately distribute to the Class A Directors all Director Shares
and Dividends held by Presidio for the benefit of such Directors. To the
extent that Presidio does not distribute its Shares and Dividends to the Class
A Directors prior to September 27, 1997, the Acquiror agrees to pay each Class
A Director an amount in cash equal to the sum of (i) the amount of all
Dividends held by Presidio for the benefit of such Class A Director, plus (ii)
the product of (A) the number of Director Shares held by such Class A Director
and (B) $25; provided, that in connection therewith the Class A Directors shall
take all actions reasonably necessary to transfer their interests in such
Dividends and Director Shares to the Acquiror.
5. The Acquiror agrees to cause Presidio to maintain its indemnity of
the Class A Directors as set forth in the Memorandum and Articles of
Association for a period of six years from the date hereof. The Acquiror
agrees to cause T-2 to maintain its indemnity of Xxxx Xxxxxx as currently set
forth in T-2's LLC Operating Agreement for a period of six years from the date
hereof. In the event that the Class A Directors retain counsel in connection
with any claims arising out of or relating to the Class A Directors serving as
such (or Xx. Xxxxxx'x serving as a director of T-2), Acquiror shall cause
Presidio (or T-2) to approve Xxxxxxx Xxxxxxx & Xxxxxxxx as such counsel to the
extent such approval is required relating to such indemnities.
6. The Acquiror agrees to cause Presidio to promptly pay in full all
legal fees and expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Class A
Directors incurred prior to the date hereof or in connection with the execution
delivery or performance by the Class A Directors of this agreement. The
current outstanding invoices aggregating $142,964 through the date hereof are
attached as Exhibit 2 hereto.
7. The Acquiror agrees to cause Presidio to promptly pay in full all
legal fees and expenses of Xxxxxxx Xxxx & Xxxxxxx, British Virgin Islands
counsel for the Class A Directors incurred prior to the date hereof or in
connection with the execution delivery or performance by the Class A Directors
of this agreement.
8. The Class A Directors agree to execute and deliver concurrently
with the execution and delivery of this Agreement, the resolutions of directors
attached as Exhibit 3 hereto. Prior to the execution thereof, the Class A
Directors shall have received from the Acquiror (a) evidence of ownership of
the Shares acceptable to the Class A Directors and (b) the application with
respect thereto contemplated by Section 41 of the Articles of Association of
Presidio.
9. Concurrently with the signing hereof, the Acquiror will deliver a
release and a covenant not to take action in the form of Exhibit 4 attached
hereto and will use its best efforts to cause (a) Farallon Capital Partners,
L.P. and certain of its affiliates (collectively, "Farallon") to deliver a
release and a covenant not to take action in the form of Exhibit 5 attached
hereto (the "Farallon Release") and (b) Wexford Management LLC and certain of
its affiliates (collectively,"Wexford") to deliver a release and a covenant not
to take action in the form of Exhibit 6 attached hereto (the "Wexford
Release"). No releases of Farallon by Acquiror or any other releases held by
the Acquiror or otherwise within its control shall be delivered to Farallon
until such time as the Farallon Release is delivered to the Class A Directors.
No releases of Wexford by Acquiror or any other releases held by Acquiror or
otherwise within its control shall be delivered to Wexford until such time as
the Wexford Release is delivered to the Class A Directors. To the extent
Farallon or Wexford is released by Presidio at any time in the future, Acquiror
agrees to cause Presidio to execute a release on the same form and substance
with respect to the Class A Directors.
10. This agreement constitutes the entire agreement of the parties,
all prior negotiations or representations are merged herein or replaced hereby
and prior agreements between or affecting the parties, whether written or
verbal, are declared null and void as between the parties hereto.
11. If, for any reason whatsoever, any one or more of the provisions
of this agreement shall be held or deemed to be inoperative, unenforceable or
invalid by a court of competent jurisdiction in a particular case or in all
cases, such circumstances shall not have the effect of rendering such provision
invalid in any other case or rendering any other provisions of this agreement
inoperative, unenforceable or invalid. This agreement shall be construed in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws. This agreement may not be modified except in
writing signed by the parties hereto. The covenants and agreements contained
herein shall be binding upon and inure to the benefit of the heirs, executors,
administrators, personal or legal representatives, successors and permitted
assigns of the respective parties hereto. Except as set forth above, the
agreements and covenants hereof are for the benefit of the parties hereto, and
not for the benefit of any third party. This agreement may be executed through
the use of separate signature pages and in any number of counterparts, and each
of such counterparts shall, for all purposes, constitute one agreement binding
on all the parties, notwithstanding that all the parties are not signatories to
the same counterpart.
IN WITNESS WHEREOF, the parties have executed this agreement on the date
first above written.
PRESIDIO HOLDING COMPANY, L.L.C
By: /s/ W. Xxxxxx Xxxxxxx
W. Xxxxxx Xxxxxxx
Authorized Signatory
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
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