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EXHIBIT 99.C
OPTION AGREEMENT
AGREEMENT, dated as of October 17, 1996 (this "Agreement"), by
and between Liquidity Financial Group, L.P., a California limited partnership
(the "Optionee"), and Apollo Real Estate Investment Fund II, L.P., a Delaware
limited partnership (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund owns 29.23% of the outstanding limited
liability company interests (the "Prom Interests") of Prom LFG L.L.C., a
Delaware limited liability company ("Prom LFG");
WHEREAS, Prom LFG owns 17.1% of the outstanding limited
liability company interests (the "Bidder Interests") of Prom Investment
Partners L.L.C., a Delaware limited liability company (the "Bidder");
WHEREAS, the Bidder has commenced or will commence a tender
offer (the "Tender Offer") to acquire up to 9,000 of the issued and outstanding
limited partnership units (the "Units"), or approximately 47.4%, of Prometheus
Income Partners, a California limited partnership (the "Target"), at a price of
$405 per Unit; and
WHEREAS, the Fund desires to grant to the Optionee an option
to acquire up to 100% of the Fund's Prom Interests (the "Option Interests"),
upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Optionee and the Fund hereby agree as follows:
1. Grant of the Option. The Fund hereby grants to the Optionee
the right to purchase (the "Option") all or any part of the Option Interests
from the Fund exercisable from the date Bidder accepts for payment Units
tendered pursuant to the Tender Offer until that date which is six months after
the date the Option becomes exercisable (the "Option Period"), at a purchase
price (the "Purchase Price") equal to five percent (5%) of the aggregate
consideration paid and expenses incurred by the Bidder for the Units in the
Tender Offer together with interest at a rate of 10% per annum based on a year
of 366 days (calculated from and after the date of the closing of the Tender
Offer through and including the date of the closing of the Option). If
Optionee does not exercise the entire Option, the Purchase Price shall be
reduced pro rata in accordance with the percentage of the entire Option
exercised by the Optionee.
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2. Exercise of the Option. The Option to purchase the Option
Interests shall be exercisable in whole or in part on the terms and subject to
the conditions hereinafter set forth:
(a) In the event that the Optionee is entitled to and
wishes to exercise the Option, the Optionee shall, during the Option Period,
send a written notice (the "Exercise Notice") to the Fund identifying the date
and place for the closing (the "Closing") of the Option Interests to be
purchased. Delivery of the Exercise Notice prior to the expiration of the
Option Period shall be sufficient to entitle the Optionee to purchase the
Option Interests notwithstanding that the Closing may occur after the
expiration of the Option Period; provided, however, that the Closing shall not
be more than fifteen (15) business days from the date that the Exercise Notice
is received by the Fund unless another date is agreed upon in writing by the
Fund and the Optionee.
(b) Payment of the Purchase Price for the Option
Interests to be acquired pursuant to the exercise of the Option will be made by
the Optionee at the Closing by delivering to the Fund, by wire transfer or by
certified check payable to the order of the Fund, an amount equal to the
Purchase Price.
3. Transferability of the Option. The Option may not be
assigned, transferred, or otherwise disposed of, or pledged or hypothecated or
in any way be subject to execution, attachment or other process. Any
assignment, transfer, pledge, hypothecation or other disposition of the Option
attempted contrary to the provisions of this Agreement or any levy, execution,
attachment or other process attempted upon the Option will be null and void and
without effect.
4. Sale of Option Interests. Except as provided in this
Agreement, the Fund shall not, without the express written consent of the
Optionee, during the Option Period, (i) sell or otherwise dispose of any or all
of the Option Interests, or (ii) convert such Option Interests into cash,
capital stock or other securities.
5. Adjustment Upon Changes in Capitalization. In the event of
any change in the Prom Interests by reason of dividends, split-ups,
recapitalizations, combinations, exchanges of interests or the like, the type
and number of interests of Prom Interests subject to the Option and the
Purchase Price shall be appropriately adjusted and proper provision shall be
made so that, in the event that any additional Prom Interests become
outstanding as a result of any such change after the date of this Agreement,
the Option shall be adjusted so that, after such change and together with the
Prom Interests previously outstanding pursuant to the exercise of the Option
(as adjusted on account of any of the foregoing change in Prom Interests), it
equals 29.23% of the number of Prom Interests then outstanding.
6. Investment. The Optionee acknowledges that the Option
Interests are not being offered pursuant to a registration statement under the
Securities Act of 1933, as amended (the "Act"), or any other securities laws.
The Optionee acknowledges that the Option Interests are being acquired for the
Optionee's own account for investment purposes only and not with a view to, or
for sale in connection with, any public distribution thereof and will not sell,
or offer to sell or otherwise dispose of, any interest in the Option Interests
acquired by the Optionee in violation of the Act. The Optionee has had
substantial experience in business and financial matters and in making
investments of the type contemplated by this Agreement, is capable of
evaluating the merits and risks of the purchase of the Option Interests and is
able to bear the economic risks of such investment.
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7. Representations and Warranties of the Fund. The Fund hereby
represents and warrants to the Optionee as follows:
a. Organization. The Fund is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
Delaware, has all requisite power and authority to execute and deliver this
Agreement and perform its obligations hereunder. The execution and delivery by
the Fund of this Agreement and the performance by the Fund of its obligations
hereunder have been duly and validly authorized by the general partner of the
Fund and no other partnership actions on the part of the Fund are necessary to
authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
b. Authorization. This Agreement has been duly and validly
executed and delivered by the Fund and constitutes a valid and binding
agreement enforceable against the Fund in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy, insolvency
or other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
c. Title to Option Interests. As of the date hereof,
the Fund is the legal, beneficial and record owner of the Option Interests.
The Fund has good and marketable title to all of the Option Interests, free and
clear of any liens, encumbrances, equities, restrictions and claims of every
kind and nature. No person other than the Fund has any interest in or right to
acquire any interest in any of the Option Interests. There are no rights,
options, convertible or exchangeable, instruments or interests or commitments,
agreements, arrangements or undertakings of any kind to which the Fund is a
party or by which the Fund is bound obligating the Fund to deliver, sell, or
cause to be sold or delivered, the Option Interests.
d. No Conflicts. Except for authorizations, consents
and approvals as may be required hereunder, (i) no filing with, and permit,
authorization, consent or approval of any state or federal public body or
authority is necessary for the execution of this Agreement by the Fund and the
consummation by the Fund of the transactions contemplated hereby and (ii) none
of the execution and delivery of this Agreement by the Fund and the
consummation by the Fund of the transactions contemplated hereby will (A)
conflict with any or result in any breach of any provision of the
organizational documents of the Fund, (B) result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration) under
any of the terms, conditions or provisions of any indenture, license, contract,
agreement or other instrument or obligation to which the Fund is a party or by
which it may be bound, or (C) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Fund.
8. Representations and Warranties of the Optionee. The Optionee
hereby represents and warrants to the Fund as follows:
a. Organization. The Optionee is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
California, has all requisite power and authority to execute and deliver this
Agreement and perform its obligations hereunder. The execution and delivery by
the Optionee of this Agreement and the performance by the Optionee of its
obligations
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hereunder have been duly and validly authorized by the general partner of the
Optionee and no other partnership actions on the part of the Optionee are
necessary to authorize the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby.
b. Authorization. This Agreement has been duly and validly
executed and delivered by the Optionee and constitutes a valid and binding
agreement enforceable against the Optionee in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy, insolvency
or other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
c. No Conflicts. Except for authorizations, consents
and approvals as may be required hereunder, (i) no filing with, and permit,
authorization, consent or approval of any state or federal public body or
authority is necessary for the execution of this Agreement by the Optionee and
the consummation by the Optionee of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by the Optionee and
the consummation by the Optionee of the transactions contemplated hereby will
(A) conflict with any or result in any breach of any provision of the
organizational documents of the Optionee, (B) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any
indenture, license, contract, agreement or other instrument or obligation to
which the Optionee is a party or by which it may be bound, or (C) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Optionee.
9. Termination. Except as otherwise provided herein, the
covenants and agreements contained herein with respect to the Option Interests
shall terminate upon the expiration of the Option Period.
10. Notices. Notices relating to this Agreement shall be in
writing and delivered in person or by hand delivery or certified mail, return
receipt requested, postage prepaid, as follows:
If to the Optionee:
Liquidity Financial Group, L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx
0000 X Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxx, Esq.
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If to the Fund:
c/o Apollo Real Estate Advisors, L.P.
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxxx
Xxxxxxx Xxxx
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxxxxxx, Esq.
or to such other address as either party may designate by written notice to the
other in accordance with this provision, and is hereby deemed to have been
given or made: if delivered in person, immediately upon delivery; if by telex,
telegram or facsimile transmission, immediately upon sending and upon
confirmation of receipt; if by nationally recognized overnight courier service
with instructions to deliver the next business day, one (1) business day after
sending; and if by certified mail, return receipt requested, three (3) days
after mailing.
11. Benefits of Agreement. This Agreement shall inure to the
benefit and shall be binding upon the successors, heirs, legal representatives
and permitted assigns of the parties hereto.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to the principles thereof respecting conflicts of laws.
13. Holidays. Whenever any payment to be made hereunder shall be
stated to be due on a Saturday, Sunday or any national holiday, such payment
may be made on the next succeeding business day.
14. Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
15. Entire Understanding and Release. (a) This Agreement
contains the entire agreement between the Fund and the Optionee and supersedes
any and all prior agreements, understandings and undertakings, whether written
or oral, between the Fund and its officers, directors, employees or agents on
the one hand, and the Optionee on the other hand. No representations,
warranties, covenants or agreements, except those expressly set forth in this
Agreement will be deemed to have been made by either the Fund and its officers,
directors, employees or agents on the one hand, and the Optionee on the other
hand.
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(b) The Optionee hereby releases, acquits and forever
discharges the Fund and its partners, employees and agents, as well as each of
their respective heirs, personal representatives, successors and assigns, from
any and all losses, damages, claims, demands, debts, actions, causes of action,
suits, contracts, agreements, obligations, accounts, defenses and liabilities
of any kind or character whatsoever, known or unknown, suspected or
unsuspected, in contract or in tort, at law or in equity, which the Optionee
ever had, now has, or might hereafter have against the Fund and its partners,
employees and agents for or by reason of any matter, cause or thing whatsoever
which relates in any manner, in whole or in part, directly or indirectly, to
any agreement, understanding, or undertaking of the Fund and its partners,
employees, and agents in connection with the transactions contemplated by this
Agreement
16. Severability. If any of the provisions of this Agreement
shall be held by a court of competent jurisdiction to be void or unenforceable,
the balance of the provisions of this Agreement shall remain in effect and be
enforced so as to give effect as nearly as possible to the intentions of the
Fund and the Optionee.
17. Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed as original, but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall be deemed an original.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LIQUIDITY FINANCIAL GROUP
By: Liquidity Financial Corporation, its general
partner
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President
APOLLO REAL ESTATE INVESTMENT FUND II, L.P.
By: Apollo Real Estate Advisors II, L.P., its
general partner
By: Apollo Real Estate Capital Advisors II, Inc.,
its general partner
By: /s/ W. Xxxxxx Xxxxxxx
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Name: W. Xxxxxx Xxxxxxx
Title: Vice President
