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EXHIBIT (4)(h)
NEITHER THIS AGREEMENT NOR THE OPTION HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS.
NEITHER THIS AGREEMENT NOR THE OPTION MAY BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT THERETO UNDER
SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR AN OPINION OF COUNSEL
SATISFACTORY TO THE GENERAL PARTNER OF THE GRANTOR THAT SUCH REGISTRATION IS
NOT REQUIRED.
OPTION AGREEMENT/OPTION CERTIFICATE
THIS OPTION AGREEMENT/OPTION CERTIFICATE (this "Agreement"), dated as
of December 29, 1999 by and between XXXXX XXXXX PARTNERS, L.P., a Delaware
limited partnership ("Grantor"), and XXXXX COMMUNICATIONS PARTNERS, a
Michigan general partnership ("Purchaser"),
WITNESSETH:
WHEREAS, the Grantor desires to grant to the Purchaser, and the
Purchaser desires to acquire from the Grantor, an option to purchase a Class
A Limited Partner Interest from the Grantor upon and subject to the terms of
this Agreement (the "Option").
NOW, THEREFORE, in consideration of the foregoing, and the payment by
the Purchaser to the Grantor of the Option Consideration, and of the
covenants and agreements contained in this Agreement, as well as for other
good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the Grantor and the Purchaser agree as follows:
ARTICLE 1
DEFINITIONS
All capitalized terms not otherwise defined in this Agreement shall be
defined in this Agreement as in the Partnership Agreement. The meanings of
all capitalized terms
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are applicable to the singular as well as to the plural forms of such terms
as well as to the feminine and neuter genders of such terms.
"Dollars" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"Equity Value" shall mean the aggregate fair market value, in Dollars,
of all Class A Limited Partner Interests outstanding on the date immediately
preceding the Exercise Date which aggregate fair market value shall be
determined in accordance with the provisions of Section 4.1 of this
Agreement.
"Exercise Price" means an amount, in Dollars, equal to .625% of the
Equity Value.
"Indenture" means the Indenture dated as of August 15, 1997 among Xxxxx
Xxxxx Partners, L.P. and Xxxxx Xxxxx Finance Corp., as issuers, and United
States Trust Company of New York, as trustee.
"Net Exercise Price" means an amount equal to $1.
"Net Option Equity Value" means an amount, in Dollars, equal to the
product of (i) Equity Value and (ii) 2.5%.
"Option Consideration" means (i) the sum of $25,000 paid by the
Purchaser to the Grantor concurrently with the execution and delivery of
this Agreement, (ii) the Purchaser's consent, in its capacity as General
Partner, to the transactions contemplated by the Sale Agreement, (iii) the
Purchaser's consent to the transactions contemplated by, and its execution
of, in each case in its capacity as General Partner and in its capacity as a
Limited Partner, of the Partnership Agreement; and (iv) the covenants and
agreements of Purchaser contained in this Agreement.
"Option Equity Value" means an amount, in Dollars, equal to the product
of (i) Equity Value and (ii) 3.125%.
"Option Period" means the period beginning on the date first above
written and ending at 5:00 p.m. (Detroit, Michigan time) on that date that
is the first to occur of the date of dissolution the Grantor and December
31, 2010.
"Partnership Agreement" means the Second Amended and Restated Agreement
of Limited Partnership of Xxxxx Xxxxx Partners, L.P., a Delaware limited
partnership, dated December 29, 1999 (including, without limitation,
Schedule A, B, and C thereto), as the same may be amended from time to time.
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"Payment Date" means that date that is 30 days after the Exercise Date.
"Sale Agreement" means the Limited Partnership Interest Purchase
Agreement dated December 29, 1999 among SCP Xxxxx Acquisition LLC, a
Delaware limited liability company, Grantor and the sellers listed on
Schedule 1 thereto.
ARTICLE 2
OPTION TERMS
2.1 Grant and Purchase of the Option. For the Option Consideration, the
receipt and payment of which are hereby acknowledged by the Grantor and the
Purchaser, the Grantor hereby grants and sells to the Purchaser, and the
Purchaser hereby acquires and purchases from the Grantor, the Option. The
Option entitles the Purchaser, pursuant and subject to the terms of this
Agreement, to purchase from Grantor a Class A Limited Partner Interest
having a Percentage Interest determined in accordance with the terms of this
Agreement.
The Option was granted and sold to the Purchaser solely in
consideration of the payment of the Option Consideration. The Option was not
granted or sold for any services performed, or to be performed, by the
Purchaser or any other person or entity.
2.2 Exercise of Option.
(a) The Option is exercisable by the Purchaser only in whole, and
not in part, and only during the Option Period. The Purchaser shall
exercise the Option by surrendering this Agreement and a completed and
duly executed Notice of Exercise (in the form attached hereto as Annex
A) to the Grantor at the principal executive office of the Grantor.
Concurrently with such surrender of this Agreement and such Notice of
Exercise to the Grantor, the Purchaser shall deliver a copy of the same
to the Grantor's Partnership Advisory Board pursuant to Section 4.2
hereof. The Exercise Price or the Net Exercise Price, as applicable,
shall be payable on the Payment Date (i) in cash or by check or wire
transfer acceptable to the Grantor, (ii) by cancellation by the
Purchaser of indebtedness or other obligations of the Grantor to the
Purchaser, or (iii) by a combination of the consideration described in
clauses (i) and (ii) of this sentence.
(b) This Option shall be deemed to have been exercised immediately
as of 5:00 p.m. (Detroit, Michigan time) on the date (the "Exercise
Date") on which this Agreement and a Notice Of Exercise are surrendered
to the Grantor in a manner contemplated by this Agreement. Provided
that the Purchaser pays the Exercise Price, or the Net Exercise Price,
on the Payment Date, the Purchaser shall be treated for all purposes as
the owner of the Class A Limited Partner Interest
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issuable upon exercise of the Option as of 5:00 p.m. (Detroit, Michigan
time) on the Payment Date.
(c) Notwithstanding any provisions herein to the contrary: When
the Purchaser exercises the Option, it shall be obligated to pay the
Exercise Price on the Payment Date; provided, however, that if the
Partnership Advisory Board, in the exercise of its discretion,
determines, prior to 11:00 a.m. (Detroit, Michigan time) on the Payment
Date, that the Purchaser is to pay the Net Exercise Price, then the
Purchaser shall be obligated to pay the Net Exercise Price on the
Payment Date. If the Purchaser pays the Exercise Price, then the
Purchaser shall receive a Class A Limited Partner Interest having a
Percentage Interest equal to 3.125%. If the Purchaser pays the Net
Exercise Price, then the Purchaser shall receive a Class A Limited
Partnership Interest equal to 2.5%. Upon payment of the Exercise Price
or the Net Exercise Price, as applicable, (i) the Purchaser shall be
deemed to have made a capital contribution to the Partnership for such
Class A Limited Partner Interest that is equal in amount to the Option
Equity Value or the Net Option Equity Value, as applicable, (ii) the
Class A Limited Partnership Interest issuable upon exercise of the
Option shall be issued to the Purchaser, (iii) the Purchaser shall be
admitted as a Class A Limited Partnership with respect to such Class A
Limited Partnership Interest, and (iv) the Grantor shall, or shall
cause its General Partner to, adjust the Percentage Interests and the
Capital Accounts of the Grantor's Class A Limited Partners in an
appropriate manner to reflect the issuance of such Class A Limited
Partner Interest to the Purchaser pursuant to the Option.
2.3 Replacement of Option. On receipt of evidence reasonably
satisfactory to the Grantor of the loss, theft, destruction or mutilation of
this Agreement and the Option and, in the case of loss, theft or
destruction, on delivery of an indemnity agreement reasonably satisfactory
in form and substance to the Grantor or, in the case of mutilation, on
surrender and cancellation of this Agreement, the Grantor at its expense
shall execute and deliver to the Purchaser, in lieu of this Agreement and
the Option, a new instrument of like tenor and amount.
2.4 Transfer of Option.
(a) This Agreement and the Option may only be transferred or
assigned by the Purchaser only in whole and not in part. Any such
transfer or assignment shall be made by endorsement (by the Purchaser
executing the Assignment Form annexed hereto as Annex B) and delivery
in the same manner as a negotiable instrument transferable by
endorsement and delivery; provided, however, that no such transfer or
assignment shall be permitted without compliance with all applicable
federal and state securities laws by the transferor and the transferee.
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(b) On surrender of this Option for transfer and assignment,
accompanied by a properly endorsed Assignment Form, the Grantor at its
expense shall issue to or on the order of the Purchaser a new
instrument of like tenor, in the name of the Purchaser or as the
Purchaser (on payment by the Purchaser of any applicable transfer
taxes) may direct.
(c) The Purchaser acknowledges that this Agreement, the Option and
the Class A Limited Partner Interest issuable upon exercise of the
Option are being acquired solely for the Purchaser's own account and
not as a nominee for any other party, and for investment, and that the
Purchaser will not offer, sell or otherwise dispose of this Agreement,
the Option or any Class A Limited Partner Interest issuable upon
exercise of the Option, except under circumstances that will not result
in a violation of the Securities Act of 1933, as amended, or any state
securities laws. Upon exercise of the Option, the Purchaser shall, if
requested by the Grantor, confirm in writing, in a form satisfactory to
the Grantor, that the Interest so purchased is being acquired solely
for the Purchaser's own account and not as a nominee for any other
party, for investment, and not with a view toward distribution or
resale.
ARTICLE 3
COVENANTS
3.1 Covenants of the Grantor.
(a) The Grantor covenants that at all times during the Option
Period the Grantor will reserve a sufficient Interest to provide for
the issuance of the Class A Limited Partner Interest issuable upon the
exercise of the Option and, from time to time, will take all steps
necessary to issue and evidence the issuance of, the Class A Limited
Partner Interest issuable upon exercise of the Option. The Grantor
agrees that its issuance of this Agreement and the Option shall
constitute full authority to its officers to execute and issue all
certificates, documents and instruments necessary to issue, or to
evidence the issuance of, the Class A Limited Partner Interest issuable
upon the exercise of this Option. The Grantor will not, by any
voluntary action, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed hereunder by the
Grantor, but will at all times in good faith assist in the carrying out
of all of the provisions of this Agreement and in the taking of all
such action as may be necessary or appropriate in order to protect the
rights of the Purchaser hereunder against impairment.
(b) Upon the occurrence and during the continuance of any breach
or threatened breach of this Agreement, the Purchaser shall have the
right forthwith, its election, to exercise any and all rights and
remedies available to the Purchaser
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at law or in equity, and, in addition, the Purchaser shall have the
specific rights, and remedies, which rights and remedies shall be
cumulative and not exclusive The Grantor recognizes that the remedies
of the Purchaser at law for a breach of the provisions of this
Agreement would be inadequate, and hereby consents to the exercise of
equitable jurisdiction and to the entry of equitable remedies,
including without limitation the remedies of injunction and specific
performance, to remedy any such breach, and waives the right to object
to any such jurisdiction or remedies on the ground of the adequacy of
the Purchaser' remedies at law.
3.2 Covenant of the Purchaser. The Purchaser agrees that until it is
removed as the General Partner pursuant to the Partnership Agreement, it
shall be and remain the General Partner so long as any indebtedness is
outstanding under the Indenture. The Purchaser agrees to be bound by and to
comply with all of the terms of the Partnership Agreement with respect to
the Class A Limited Partner Interest that is issuable upon exercise of the
Option.
ARTICLE 4
MISCELLANEOUS
4.1 Determination of Equity Value.
(a) For all purposes of this Agreement, the calculation of Equity
Value shall initially be made by the General Partner, who shall supply
the Partnership Advisory Board with all such information and data as
shall be requested to enable the Partnership Advisory Board to reach an
informed judgment with respect thereto. In the event the Partnership
Advisory Board shall disagree with any determination of Equity Value
made by the General Partner and the General Partner shall not accept
the determination of Equity Value proposed by the Partnership Advisory
Board, the matter shall be settled by appraisal as provided in this
Section 4.1. Any determination of Equity Value made in accordance with
the provisions of Section 4.1 shall be made in writing and a copy
thereof given to each Limited Partner. In determining Equity Value the
following principles shall apply: (i) the Partnership will be valued on
a going concern basis, in conformity with standard appraisal
techniques, applying the market factors then relevant, and other assets
and other securities not subject to valuation as described below, shall
be valued similarly; (ii) securities which are freely tradable and the
principal market for which (measured by the average daily volume over
the preceding four trading weeks) is either the New York Stock Exchange
or the American Stock Exchange or which are quoted on the National
Market System of the National Association of Securities Dealers, Inc.
shall be valued at their last reported closing sale price, prior to the
date of determination on such exchange, or, if no sales occurred on
such day, at the mean between the closing "bid" and "asked" prices on
such day; and (iii) securities which are freely tradable and the
principal market for which is
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some other national securities exchange or the over-the-counter market
(but which are not quoted on the National Market System) shall be
valued at their last reported closing sale price, regular way, prior to
the date of determination on the principal national securities exchange
on which they are traded, or, if no sales occurred on such day, at the
mean between the closing "bid" and "asked" prices on such day, or, if
the principal market for such securities is, or is deemed to be, in the
over-the-counter market, at their average closing "bid" price as
published by the National Association of Securities Dealers Automated
Quotation System, or if such price is not so published, at the mean
between their closing "bid" and "asked" prices, if available, which
prices may be obtained from any reputable broker or dealer. For all
purposes of this Agreement, Equity Value shall be determined after
considering all factors which might reasonably affect the sales price
of Class A Limited Partner Interests or the value of the assets or
securities of the Partnership, including, without limitation, if and as
appropriate, the anticipated impact on current market prices of
immediate sale, the lack of a market for such Interests or assets of
securities and the impact on present value of, among others, the length
of time before any such sales may become possible and the cost and
complexity of any such sales. For all purposes of this Section 4.1, all
determinations of Equity Value which have been determined in accordance
with the terms of this Section 4.1 shall be final and conclusive on the
Grantor, all Partners, and their respective successors and assigns. In
determining the value of assets in accordance with the provisions of
this Section 4.1, the General Partner and the Partnership Advisory
Board may obtain and rely on information provided by any source or
sources reasonably believed to be accurate.
(b) Any controversy arising out of a determination of Equity Value
which shall be submitted to appraisal as provided for by this Section
4.1 shall be settled in New York, New York by an appraisal undertaken
by two independent nationally recognized experts in the cable
television field (the "Initial Appraisers"), to determine the Equity
Value. One such appraiser shall be appointed by the General Partner,
and the other by the Partnership Advisory Board, and the deliberations
of the appraisers shall commence forthwith following their appointment.
If the disparity between the Equity Values determined by each of the
Initial Appraisers is less than or equal to 5% of the higher of the two
Equity Values, the final Equity Value shall be the average of such two
Equity Values. If such disparity is greater than 5%, then the Initial
Appraisers shall select a third appraiser possessing similar
qualifications. If the Initial Appraisers cannot agree upon a third
appraiser within 25 days of the commencement of their original
deliberations to determine Equity Value, the third appraiser shall be
selected by the American Arbitration Association, and such third
appraiser, within 20 days of appointment, shall make its determination
of Equity Value. The final Equity Value shall be whichever Equity Value
of the two Initial Appraisers is closest to the Equity Value determined
by the third appraiser so long as the disparity
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between the third Equity Value and the earlier Equity Value to which it
is closest is less than or equal to 20% of such earlier Equity Value.
If the disparity is greater than 20%, then the Equity Value shall be
the average of the two Equity Values that are closest. The valuation
decision of such appraisers shall be final and conclusive on the
Grantor, all Partners and their respective successors and assigns. The
cost of any such appraisals shall be borne equally by the Partnership
(as a Partnership expense) and the General Partner.
4.2 Notices. All notices and other communications required or permitted
under this Agreement shall be deemed to have been duly given and made if in
writing and if served by personal delivery to the party for whom intended
(which shall include delivery by Federal Express or any other nationally
recognized overnight delivery service), bearing the address shown in this
Agreement for, or such other address as may be designated in writing
hereinafter by, such party:
If to the Grantor: Xxxxx Xxxxx Partners, L.P.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
with copies to: Miller, Canfield, Paddock and Stone, P.L.C.
000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
and
Dow, Xxxxxx & Xxxxxxxxx, PLLC
Suite 800
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
If to the Grantor's
Partnership
Advisory Board: Xxxxx Xxxxx Partners, L.P.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
and
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c/o Sandler Capital Management
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
with copies to: Miller, Canfield, Paddock and Stone, P.L.C.
000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
and
Dow, Xxxxxx & Xxxxxxxxx, PLLC
Suite 800
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
If to the Purchaser: Xxxxx Communications Partners
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
with copies to: Miller, Canfield, Paddock and Stone, P.L.C.
000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
and
Dow, Xxxxxx & Xxxxxxxxx, PLLC
Suite 800
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Attention: Xxxxxx X. X'Xxxxxxx, Esq.
Section 4.3 Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements and understandings, oral or written, relative to said subject
matter.
Section 4.4 Binding Effect; Assignment. This Agreement shall bind, and
the benefits hereof shall inure to, the Grantor and the Purchaser, and their
respective
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successors and assigns; provided, however, that the Grantor may not transfer
or assign (by operation of law or otherwise) any or all of its rights or
delegate the performance of all or any part of its obligations hereunder
without the prior written consent of the Purchaser.
Section 4.5 Expenses of Transaction. Each party to this Agreement shall
bear its own expenses, including attorneys' fees, in respect of this
Agreement and the transactions contemplated hereby, whether or not such
transactions are consummated.
Section 4.6 Amendment; Waiver; Consent. This Agreement may not be
changed, amended, terminated, augmented, rescinded or discharged (other than
by performance), in whole or in part, except by a writing executed by each
of the parties hereto, and no waiver of any of the provisions or conditions
of this Agreement or any of the rights of a party hereto shall be effective
or binding unless such waiver shall be in writing and signed by the party
claimed to have given a consent thereto. Except to the extent that a party
hereto may have otherwise agreed to in writing, no wavier by that party of
any condition of this Agreement or breach by the other party of any of its
obligations, representations or warranties hereunder shall be deemed to be a
waiver of any other condition or subsequent or prior breach of the same or
any other obligation or representation or warranty by such other party, nor
shall any forbearance by the first party to seek a remedy for any
noncompliance or breach by such other party be deemed to be a waiver by the
first party of its rights and remedies with respect to such noncompliance or
breach.
Section 4.7 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. In the event
one or more of the provisions of this Agreement should, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. Headings in this Agreement are for purposes of reference only and
shall not limit or affect the meaning thereof.
Section 4.8 Governing Law; Consent to Jurisdiction.
(a) This Agreement shall in all respects be construed in
accordance with, and governed by, the laws of the State of Delaware,
without regard to the principles of conflicts of law thereof.
(b) Each of the parties hereto hereby irrevocably submits to the
non-exclusive jurisdiction of the New York Supreme Court, New York
County, or the United States District Court for the Southern District
of New York and any
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appellate court thereof in any action or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby and
each of the parties hereto hereby irrevocably agrees that all claims in
respect of such action or proceeding shall be heard and determined in
such New York state or Federal court. Each of the parties hereto hereby
irrevocably and unconditionally waives, to the fullest extent any of
them may legally and effectively do so, any objection that any of them
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the
transactions contemplated hereby in the New York Supreme Court, New
York County, or the United States District Court for the Southern
District of New York. Each of the parties hereto hereby irrevocably
waives, to the fullest extent possible, the defense of any inconvenient
forum to the maintenance of such action or proceeding.
Section 4.9 Further Assurances. Each of the parties hereto shall take
such other and further actions and shall execute and deliver such other and
further documents and instruments as shall be necessary or desirable to
effectuate the intent and provisions of this Agreement. All covenants,
agreements, representations and warranties made in this Agreement, or in the
certificates delivered in connection herewith, shall be deemed to have been
material and to have been relied upon by the Purchasers, notwithstanding any
investigation made by them or on their behalf, and shall survive the
execution and delivery of this Agreement, and shall continue in full force
and effect until the Option shall be exercised or shall lapse.
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IN WITNESS WHEREOF, this Agreement has been duly executed on behalf of
each of the parties hereto as of the day and year first above written.
GRANTOR:
XXXXX XXXXX PARTNERS, L.P., a Delaware limited
partnership
By: Xxxxx Communications Partners, a Michigan general
partnership and its general partner
By: Jamesco, Inc., a Michigan corporation and a
general partner of Xxxxx Communications
Partners
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
PURCHASER:
XXXXX COMMUNICATIONS PARTNERS, a Michigan
general partnership
By: Jamesco, Inc., a Michigan corporation and a
general partner of Xxxxx Communications Partners
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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ANNEX A
FORM OF NOTICE OF EXERCISE
To: Xxxxx Xxxxx Partners, L.P.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
(1) The undersigned hereby (A) exercises the Option granted the
undersigned pursuant to the attached Option Agreement/Option Certificate
pursuant to the terms thereof, (B) will pay the Exercise Price on the Payment
Date, unless the Partnership Advisory Board determines that the undersigned is
to pay the Net Exercise Price, in which case the undersigned will pay the Net
Exercise Price on the Payment Date, and (C) will tender payment of the Exercise
Price or Net Exercise Price, as applicable, on the Payment Date. The Class A
Limited Partner Interest to be issued to the undersigned pursuant to this
exercise of the Option shall have a Percentage Interest equal to either 3.125%,
if the undersigned pays the Exercise Price, on the Payment Date, or 2.5%, if the
undersigned pays the Net Exercise Price on the Payment Date.
(2) In exercising the Option, the undersigned hereby confirms and
acknowledges that the Class A Limited Partner Interest to be issued pursuant to
this exercise of the Option is being acquired solely for the account of the
undersigned and not as a nominee for any other party, and for investment, and
the undersigned will not offer, sell or otherwise dispose of such Interest
except under circumstances that will not result in a violation of the Securities
Act of 1933, as amended, or any applicable state securities laws.
(3) Please issue the Class A Limited Partnership Interest issuable to
the undersigned pursuant to this exercise of the Option in the name of the
undersigned or in such other name as is specified below:
-------------------------------------
(Name)
-------------------------------------
(Name)
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ANNEX B
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned owner of this Option (the
"Purchaser") does hereby (i) sell, assign and transfer unto the assignee named
below (the "Assignee") all of the rights of the Purchaser under the within
Option, and (ii) irrevocably constitute and appoints
as its Attorney to make
such transfer on the books of the Grantor, maintained for the purpose, with full
power of substitution in the premises.
The Purchaser and the Assignee also represent that, by assignment
hereof, the Assignee acknowledges (i) that this Agreement, the Option, and the
Class A Limited Partner Interest to be issued upon exercise of the Option, is
being acquired for investment and that the Assignee will not offer, sell or
otherwise dispose of this Agreement, the Option or any such Interest to be
issued upon exercise of the Option, except under circumstances which will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws, and (ii) that upon exercise of the Option, the Assignee shall,
if requested by the Grantor, confirm in writing, in a form satisfactory to the
Grantor, that the Class A Limited Partner Interest so purchased is being
acquired for investment and not with a view toward distribution or resale. The
Assignee hereby agrees to be bound by and to comply with all of the terms of the
Partnership Agreement with respect to the Class A Limited Partner Interest that
is issuable upon the exercise of the Option.
Dated:
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Signature of Purchaser
Dated:
------------------------------- ------------------------------------
Signature of Assignee
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