AGREEMENT
Dated March 6, 1998
The parties to this agreement are Presidio Capital Corp., a corporation
organized in the British Virgin Islands ("Presidio"), American Real Estate
Holdings L.P., a Delaware limited partnership ("AREH") and Olympia Investors,
L.P., a Delaware limited partnership ("Olympia").
Presidio, directly or indirectly, controls the general partners of each
of Integrated Resources High Equity Partners, Series 85, a California limited
partnership ("HEP 85"), High Equity Partners L.P. - Series 86, a Delaware
limited partnership ("HEP 86"), and High Equity Partners L.P. - Series 88, a
Delaware limited partnership ("HEP 88" and collectively with HEP 85 and HEP 86,
the "Partnerships"). On the date of this agreement, AREH and its affiliates
beneficially own 1,657 units of limited partnership interest ("Units") of HEP
85, 3,243Units of HEP 86 and 2,346 Units of HEP 88. Olympia, a newly-formed
Delaware limited partnership affiliated with AREH, wishes to make tender offers
(the "Offers") to acquire up to approximately 40% of the outstanding Units of
each of the Partnerships and, in that connection, proposes to file with the
Securities and Exchange Commission (the "Commission") a Tender Offer Statement
on Schedule 14D-1 relating to each Offer (collectively, the "Schedule 14D-1's")
substantially in the forms set forth on schedule A.
The parties agree as follows:
1. Offers. (a) Olympia intends to file the Schedule 14D-1's with the
Commission, and to cause the related Offers to Purchase, Assignments of
Partnership Interest and Cover Letters included as exhibits to such Schedule
14D-1's (such Offers to Purchase,
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Assignments of Partnership Interest and Cover Letters, together with any
amendments or supplements thereto or any other communications proposed to be
sent to holders of Units of any Partnership being collectively referred to as
the "Offering Materials") to be mailed to holders of Units, on or before the
fifth business day following delivery by the Partnerships to Olympia of the
Lists referred to in section 1(b) hereof. Olympia shall cause each Offer to
expire on or before May 12, 1998 (the date on which an Offer expires in
accordance with this sentence, as the same may be extended in accordance with
the proviso set forth below, the "Final Expiration Date"); provided, however,
that the Final Expiration Date with respect to any Offer may be extended, upon
notice by Olympia to Presidio, under the following circumstances: (i) if there
is in effect, on such date, any preliminary or permanent injunction or other
order of any federal or state court, government or governmental authority or
agency of the type described in paragraph (a) of Section 14 of the applicable
Offer to Purchase (such preliminary or permanent injunction or other order being
hereinafter referred to as an "Injunction"), the Final Expiration Date of such
Offer may be extended to the earliest practicable date on which such Offer may
expire in accordance with the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated by the commission
thereunder (the Exchange Act and such rules and regulations being hereinafter
collectively referred to as the "Rules"), following the vacation or dissolution
of such Injunction and the dissemination to limited partners of additional
Offering Materials containing any necessary disclosure relating thereto; (ii)
subject to clause (i) above, if there is pending, on such date, any action or
proceeding of the type described in paragraph (h) of Section 14 of the
applicable Offer to Purchase, the Final Expiration Date of such Offer may be
extended to the earlier of (A) the earliest practicable date on which such Offer
may expire in accordance
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with the Rules following the final resolution of such action or proceeding and
the dissemination to limited partners of additional offering Materials
containing any necessary disclosure relating thereto or (B) June 11, 1998; (iii)
the Final Expiration Date of such Offer may be extended to the earliest
practicable date on which such Offer may expire in accordance with the Rules
following the dissemination to limited partners of additional Offering Materials
prepared for the purpose of complying with comments by the staff of the
Commission, provided that Olympia uses its best efforts to comply with such
comments expeditiously; or (iv) in the event that a competing offer for Units is
commenced by a third party bidder who is not affiliated with AREH (a "Competing
Offer"), the Final Expiration Date of such Offer may be extended, on one or more
occasions, to the earliest practicable date on which such Offer may expire in
accordance with the Rules following an increase in the offering price to a price
equal to or higher than the price offered by the competing bidder and the
dissemination to limited partners of amended Offering Materials disclosing such
increase, provided, however, that if such Competing Offer is for less than 5% of
the outstanding Units of a Partnership, the Final Expiration Date may not be
extended for more than ten business days beyond June 11, 1998 pursuant to this
clause (iv). Presidio will not unreasonably withhold or delay its consent to any
request by Olympia to extend the Final Expiration Date of any Offer, for any
reason other than those set forth in the immediately preceding sentence,
provided that such request does not seek to extend such Final Expiration Date
beyond June 11, 1998. (b) Concurrently herewith, Presidio has caused the
Partnerships to furnish Olympia with lists, as of the most recent practicable
date and in computer readable form, of the names, addresses and numbers of Units
held by limited partners of the Partnerships (the "Lists"),
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together with such computer processing data as is necessary to make use of such
computer readable Lists and printouts of such Lists for verifications purposes.
AREH shall not, and shall cause its affiliates, agents and representatives not
to, use the Lists for any purpose other than to acquire Units pursuant to the
Offers.
(c) Olympia shall make all decisions regarding the conduct of the
Offers and the acquisition and transfer of Units pursuant thereto, including
without limitation decisions regarding any change in the terms or waiver of any
of the conditions thereof; provided, however, that, without obtaining the prior
written approval of Presidio, Olympia shall not amend or otherwise modify the
terms of any Offer: (i) to increase the number of Units of any Partnership
sought to be purchased in such Offer to a number in excess of 40% of the
outstanding Units of such Partnership; or (ii) in a manner that violates or is
inconsistent with its obligations under this agreement. Olympia shall provide
Presidio with copies of Offering Materials describing any proposed change in the
terms of, or waiver of any condition to, an Offer not less than two business
days prior to the date such Offering Materials are first mailed to holders of
Units. Each party shall, and shall cause its affiliates to, comply with the
Rules in connection with the Offers.
(d) Presidio will not, and will cause its affiliates not to, directly
or indirectly, purchase or otherwise acquire beneficial ownership of Units in
any Partnership, enter into any agreement with a third party to purchase or
otherwise acquire beneficial ownership of any Units in any Partnership, or make
any offer to purchase or otherwise acquire beneficial ownership of, or solicit
any offer to sell, Units in any Partnership, at any time commencing on the date
hereof through and including the Final Expiration Date of the Offer with respect
to such Partnership.
2. Standstill. (a) Prior to the Standstill Expiration Date (as
hereinafter defined),
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except to the extent AREH or its affiliates is invited to do otherwise by
Presidio, AREH shall not, and shall not permit any of its affiliates to,
directly or indirectly:
(i) acquire, announce an intention to acquire, offer or propose to
acquire, solicit an offer to sell or agree to acquire, by purchase, by gift, by
joining a partnership, a limited partnership, a syndicate or any group or
otherwise (other than any partnership, limited partnership, syndicate or group
consisting solely of AREH and its affiliates and, in such event, only to the
extent permitted pursuant to section 2(b) below), (A) any Units in any
Partnership or (B) any assets, businesses or properties of any Partnership;
(ii) participate in the formation or encourage the formation of, or
join or in any way participate with, any partnership, limited partnership,
syndicate, group or other person or entity that beneficially owns or seeks to
acquire beneficial ownership of Units in any Partnership for the purpose of
beneficially owning or acquiring beneficial ownership of any such Units (other
than any group consisting solely of AREH and its affiliates);
(iii) solicit, or participate in the solicitation of, proxies or become
a participant in any election contest (the terms used in this section 2.3 having
the respective meanings given them to Regulation 14A under the Exchange Act)
with respect to any Partnership;
(iv) initiate, propose or otherwise solicit limited partners for the
approval of one or more proposals with respect to any Partnership or induce any
other person to initiate any such proposal;
(v) seek the removal of any general partner of any Partnership or seek
to have called any meeting of limited partners of any Partnership;
(vi) deposit any Units of any Partnership in a voting trust or subject
them to
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a voting agreement or other agreement or arrangement with respect to voting
(other than this agreement or any agreement or arrangement solely among AREH and
its affiliates); or
(vii) otherwise act, alone or in concert with others, to seek to
control the management, policies or affairs of any Partnership or solicit,
propose, seek to effect or negotiate with any other person or entity (including,
without limitation, any Partnership) with respect to any form of business
combination or other extraordinary transaction with any Partnership or any of
its general partners; solicit, make or propose, or negotiate with any other
person or entity with respect to, or announce an intent to make, any tender
offer or exchange offer for any Units in any Partnership; publicly disclose an
intent, purpose, plan or proposal with respect to any Partnership or any
securities or assets of any Partnership that would violate the provisions of
this section 2; or assist, participate in, facilitate or solicit any effort or
attempt by any person or entity to do or seek to do any of the foregoing.
(b) Notwithstanding the provisions of section 2(a):
(i) AREH and its affiliates: may conduct the Offers, and acquire Units
pursuant to the Offers, in accordance with section 1 hereof and may exercise
their rights and perform their obligations under this Agreement;
(ii) Olympia and/or any Permitted Transferee may acquire from any
Partnership, as a distribution from the Partnership, any securities or other
assets or properties the Partnership distributes to its partners in any such
distribution.
(iii) Except as to the matters expressly referred to in section 2(a)
and except as provided in section 5, Olympia and any Permitted Transferee of
Units shall be entitled to exercise their rights as a limited partner of each
Partnership in which they own Units, including, without
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limitation, the rights to access books and records of the Partnership and to
vote.
(iv) Neither AREH nor any affiliate of AREH shall be deemed to have
violated section 2 of this Agreement in the event that such person acquires
beneficial ownership of Units of any Partnership pursuant to a transaction in
which such person acquires another entity, in circumstances in which the
principal purpose of such transaction is not to acquire Units of such
Partnership or otherwise to circumvent the intent of this agreement, provided
that the number of Units so acquired, together with the aggregate number of
Units of such Partnership acquired by AREH or any affiliate of AREH in any other
transactions permitted pursuant to this paragraph (iv), represent a de minimis
amount of the total outstanding Units of such Partnership.
(v) AREH and its affiliates may acquire, offer or propose to acquire,
or agree to acquire one or more assets, businesses or properties of any
Partnership if, prior to AREH or any affiliate taking action with respect to
such acquisition, the general partners of the Partnership owning such assets,
businesses or properties or their affiliates have publicly announced such
Partnership's intention to offer such assets, businesses or properties for sale
or to solicit offers for the purchase thereof or have retained a broker for such
purpose.
(c) For purposes of this agreement, "Standstill Expiration Date", with
respect to any Partnership, shall mean the earliest to occur of: (i) the third
anniversary of the date hereof; (ii) the date of a Default (as hereinafter
defined) by Presidio in its obligation to purchase Units of such Partnership
pursuant to the buy/sell agreements set forth in section 4 hereof; and (iii) the
closing date of the purchase by Olympia and/or any affiliate of Units from
Presidio pursuant to the buy/sell agreements set forth in section 4 hereof.
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3. Restrictions on Transfer
3.1 Transfers to be made only as Permitted or Required by this
Agreement. Olympia and its affiliates shall not, directly or indirectly, sell,
assign, transfer, pledge or otherwise encumber or dispose of (collectively,
"transfer") any Units any of them acquires pursuant to the Offers, except as
specifically permitted or required by this agreement. Any other purported
transfer shall be void and of no effect. The foregoing provisions shall not be
deemed to prohibit (a) the transfer of the capital stock or other equity
interest in Olympia, AREH or any of their respective affiliates in circumstances
in which the principal purpose of such transfer is not to dispose of Units or
otherwise to circumvent the intent of this agreement; or (b) the pledge of any
Units acquired pursuant to the Offers or any capital stock or other equity
interest in Olympia, AREH or any such affiliates from being pledged to
collateralize or otherwise support general corporate or partnership obligations
of Olympia, AREH or such affiliate existing of the date or incurred during the
term of this agreement, provided that the foregoing shall not relieve Olympia,
AREH or such affiliate from its obligations to fully perform its undertakings
hereunder and provided further that any direct pledgee of Units shall agree to
be bound by the provisions of this agreement to the same extent as Olympia is so
bound as a condition to foreclosing upon such Units.
3.2 Permitted Transfers. Olympia and its affiliates may, at any time or
from time to time, transfer some or all of the Units they acquire pursuant to
the Offers (or the right to acquire Units pursuant to the Offers) to any of
their affiliates (Olympia and each such affiliate being hereinafter referred to
as a "Permitted Transferee"). No transfer to a Permitted Transferee shall be
effective, however, unless the Permitted Transferee agrees, in a writing that is
reasonably
8
satisfactory to Presidio, to be bound by all the terms of this agreement to the
same extent that Olympia and AREH are so bound.
3.3 Termination of Restrictions. The provisions of section 3.1 shall
terminate, as to a Partnership, on the earlier to occur of: (a) the third
anniversary of this agreement; or (b) the closing of any purchase of Units of
such Partnership by Olympia or an affiliate upon exercise of the buy/sell
provisions set forth in section 4 hereof. In addition, the provisions of section
3.1 shall not apply to any of the Partnerships at any time following the
occurrence and during the continuance of a Default by Presidio in its obligation
to purchase Units of one or more Partnerships upon exercise of the buy/sell
provisions set forth in section 4 hereof. If Units are transferred to a third
party other than a Permitted Transferee at any time when the restrictions on
transfer do not apply (as provided in the immediately preceding sentence) or
transferred to any third party following the termination of such restrictions,
the transferee will not be bound by any of the obligations applicable to the
transferor of such Units under this Agreement.
4. Call; Buy/Sell
4.1 Call. At any time after the Final Expiration Date and before the
ninety-first day following the Final Expiration Date, Presidio shall have the
option (the "Call Option") to purchase 50% (but not less than 50%) of the Units
in each Partnership acquired pursuant to the Offers by Olympia and its
affiliates for a price determined in accordance with schedule 4.1. The Call
Option will be exercisable only by written notice by Presidio to Olympia and
AREH, which notice must be given, if at all, prior to the expiration of such
option.
4.2 Buy/Sell. (a) Either Olympia or Presidio may initiate buy/sell
procedures with respect to one or more Partnerships at any time commencing on
the Buy/Sell
9
Effective Date (as hereinafter defined) through and including the Standstill
Expiration Date. Anything herein to the contrary notwithstanding, buy/sell
procedures may not be instituted more than once with respect to any Partnership
(except that the delivery of a Buy/Sell Offer that is rescinded pursuant to
section 4.2(d) hereof shall not constitute the institution of buy/sell
procedures for this purpose). Such buy/sell procedures shall cover, in the case
of Olympia, all Units of a Partnership acquired by Olympia and/or any Permitted
Transferee pursuant to an Offer (other than Units purchased by Presidio upon
exercise of the Call Option) and all other Units owned by Olympia or any
affiliate of Olympia at the time the buy/sell procedures are initiated
(collectively, the "Olympia Covered Units") and, in the case of Presidio, all
Units of such Partnership acquired by Presidio or any affiliate of Presidio upon
exercise of the Call Option (collectively, the "Presidio Covered Units").
(b) Either Olympia or Presidio may initiate the buy/sell procedures
with respect to one or more Partnerships by delivering to the other a written
offer (the "Buy/Sell Offer") stating the buy/sell price on a per Unit/per
Partnership basis (which buy/sell price shall be payable solely in cash and
shall not exceed, for any Partnership, the net asset value per Unit for such
Partnership as of the date of the Buy/Sell Offer (the "Maximum Price")) and
other material terms and conditions on which the initiating party is willing to
purchase all, but not less than all, Olympia Covered Units or Presidio Covered
Units, as the case may be, of such Partnership. The non-initiating party shall
then be obligated to elect to sell Units to the initiating party at the per Unit
price and upon the other terms and conditions set forth in the Buy/Sell Offer,
or to purchase Units from the initiating party upon such terms and conditions.
(If the Buy/Sell Offer relates to more than one Partnership, the non-initiating
party may, in its discretion, elect to buy Units of one
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Partnership and sell Units of another, subject to Section 4.2(c) below). The
non-initiating party shall have fifteen days from the date the Buy/Sell Notice
is delivered to it (the "Reply Period") to decide whether to buy or sell.
Failure to notify the initiating party of such decision at or prior to the end
of the Reply Period shall be deemed a decision to buy Units. Notwithstanding the
foregoing, in the event that the non-initiating party wishes to buy Units of a
Partnership but believes that the buy/sell price named in the Buy/Sell Offer
exceeds the Maximum Price for such Partnership, the non-initiating party shall
notify the initiating party during the Reply Period of its election to buy such
Units at the Maximum Price, which notice (the "Appraisal Notice") shall set
forth the Maximum Price (in the opinion of the non-initiating party) and shall
name an appraiser with a minimum of ten years experience in the appraisal of
properties of the type owned by the Partnership(s) whose Units are subject to
appraisal (a "Qualified Appraiser"). If the parties cannot agree upon the
Maximum Price, the initiating party shall name a Qualified Appraiser (and shall
so notify the non-initiating party in writing) within ten days following its
receipt of the Appraisal Notice, and the two Qualified Appraisers shall choose a
third impartial Qualified Appraiser (the "Impartial Appraiser") within ten days
following selection of the second Qualified Appraiser. If the initiating party
fails timely to select (and to notify the non-initiating party of its selection
of) a Qualified Appraiser in accordance the immediately preceding sentence, the
Qualified Appraiser selected by the non-initiating party shall select the
Impartial Appraiser. The Impartial Appraiser so selected shall perform an
appraisal to determine the Maximum Price of Units of the Partnership(s) subject
to the dispute between the parties and shall present the results of such
appraisal and his determination of the Maximum Price to the parties in writing
within 90 days following such appraiser's selection. The determination of such
Impartial Appraiser shall be
11
final and binding on the parties hereto. Each party shall bear any costs and
expenses of the Qualified Appraiser selected by such party and Presidio shall
bear 50% and AREH shall bear 50% of the costs and expenses of the Impartial
Appraiser.
(c) If Presidio or an affiliate does not exercise the Call Option with
respect to one or more Partnerships (and, as a result, there are no Presidio
Covered Units of such Partnership(s)) or if, at the time buy/sell procedures are
initiated, Presidio and its affiliates collectively own more than 15% of the
outstanding Units of the Partnership(s) with respect to which such buy/sell
procedures are initiated, then, notwithstanding the provisions of section 4.2
hereof to the contrary: (i) if AREH or an affiliate initiates buy/sell
procedures with respect to such Partnership(s), AREH or such affiliate may
require Presidio to buy the Units of such Partnership(s) covered by AREH's or
such affiliate's Buy/Sell Offer at the Maximum Price then applicable to such
Units, and (ii) if Presidio initiates buy/sell procedures with respect to such
Partnership(s), AREH and its affiliates may, in their discretion, elect to sell
the Units covered by Presidio's Buy/Sell Offer at the Maximum Price then
applicable to such Units or to retain such Units. The appraisal procedures set
forth in paragraph (b) above shall apply to buy/sell procedures governed by this
paragraph (c), if applicable.
(d) As used herein, "Buy/Sell Effective Date" shall mean, as to Units
of any Partnership, the earlier to occur of: (a) the six-month anniversary of
the Final Expiration Date; and (b) the date on which Presidio gives notice (in
accordance with Section 8.7 hereof) to Olympia and AREH of a proposal by or on
behalf of the general partners of any Partnership or any affiliate of such
general partners to effect a "roll-up" transaction (within the meaning of Item
901 of Regulation S-K promulgated by the Commission under the Exchange Act)
involving such
12
Partnership (it being agreed by Presidio that it will not permit any such
"roll-up" transaction to be consummated less than sixty days following the
giving of such notice (in accordance with Section 8.7 hereof) to Olympia and
AREH). Any notice given pursuant to clause (b) of the immediately preceding
sentence shall set forth, in reasonable detail, all material terms of the
"roll-up" transaction being proposed. Notwithstanding the foregoing, in the
event that Presidio makes a Buy/Sell Offer at a time when either the purchase or
sale of Units by Olympia or its affiliates pursuant to the buy/sell procedures
set forth in this section 4 would cause Olympia or any such affiliate to incur
liability under Section 16(b) of the Exchange Act, Olympia may so notify
Presidio (which notice shall state the earliest date (the "Trigger Date") on
which Olympia or such affiliate could commit either to purchase or sell Units
without incurring such liability, provided that such Trigger Date shall not be
more than six months and one day following the date of Presidio's Buy/Sell
Offer), in which event Presidio's Buy/Sell Offer shall be deemed to be rescinded
for all purposes of this agreement, and Presidio may not initiate another
Buy/Sell Offer prior to the Trigger Date. Olympia may not cause a Buy/Sell Offer
to be rescinded pursuant to this section 4.2(c) more than once.
4.3 Closing. The closing of any purchase and sale of Units of a
Partnership upon exercise of the Call Option or pursuant to the buy/sell
procedures, as the case may be, shall be held in New York City during normal
business hours at a place and date specified by Presidio in writing to Olympia
and AREH, but not fewer than 10 days or more than 30 days after: (x) the
exercise of the Call Option or with respect to such Partnership; or (y) the end
of the Reply Period following delivery of a Buy/Sell Offer covering such
Partnership (or, if an Appraisal Notice is timely given relating to Units of
such Partnership, then the final determination by the Impartial
13
Appraiser of, or the mutual agreement of the parties as to, the Maximum Price).
Once scheduled, such closing shall not be postponed or adjourned except by
mutual consent of the parties hereto. At such closing, (a) the party selling
Units shall deliver to the party purchasing Units instruments of transfer with
respect to the Units being sold, which instruments shall be substantially in the
form set forth in schedule 4.3, and (b) the party purchasing Units shall pay the
full purchase price for the Units being purchased by wire transfer of
immediately available funds to an account specified in writing by party selling
Units at least two days before the closing. As used herein, a "Default" by
Presidio in its obligation to purchase Units upon exercise of the buy/sell
procedures means the failure by Presidio timely to schedule a closing for such
purchase as required by this section 4.3 or to pay the full purchase price for
any or all of the Units required to be purchased by Presidio at such closing in
the manner required by this section, provided that Olympia and/or any Olympia
affiliate owning the Units required to be purchased at such closing are ready,
willing and able to perform their obligations to transfer such Units to
Presidio. Anything herein to the contrary notwithstanding, if, between the date
a Buy/Sell Offer is made and the date of the closing pursuant to this section
4.3, a transaction has been consummated as a result of which the Units required
to be transferred at such closing (and all other Units of the subject
Partnership) have been exchanged for or converted into another security, the
party required to sell such Units shall deliver at the closing the securities so
received by it in connection with such exchange or conversion and the purchase
price payable to such party shall be unaffected by such exchange or conversion.
5. Agreement to Vote. If, at any time or from time to time before the
Standstill Expiration Date, the general partners of a Partnership submit to the
limited partners of that
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Partnership a proposal that would result in such limited partners receiving
securities that, upon consummation of the proposal, are listed on a national
securities exchange or NASDAQ, AREH shall cause all the Units in that
Partnership owned by AREH or any affiliate of AREH and not theretofore purchased
by Presidio to be voted in favor of the proposal.
6. Neutrality. Presidio will not, and will not cause or permit its
affiliates to, take any action that would result in the conditions to the Offers
set forth in Section 14 of each Offer to Purchase not to be satisfied and will
not, and will not cause or permit its affiliates to, actively oppose the Offers,
but rather will take, and will cause its affiliates to take, a neutral stance
with respect thereto, except that in the case of (i) a competing third party bid
(i.e., a bid made by or on behalf of a party other than AREH or an affiliate or
Presidio or an affiliate that is not topped by Olympia) made prior to the
expiration date of the Offers or (ii) the occurrence of any event materially
adversely affecting the Offers, Presidio or any affiliate of Presidio may change
any recommendation they have made to limited partners with respect to the Offers
to reflect such competing bid or the occurrence of such event. In furtherance
and not in limitation of the foregoing, Presidio will cause the general partners
of the Partnerships to admit Olympia or a Permitted Transferee as a limited
partner of each Partnership in which it purchases Units pursuant to an Offer
upon delivery of each Partnership's standard transfer paperwork, such admission
to be effective as of the first day of the calendar quarter next following the
date of such delivery by Olympia. Presidio shall cause each of the Partnerships
to waive applicable transfer fees in connection with transfers to Olympia or a
Permitted Transferee of Units acquired pursuant to the Offers.
7. Termination. (a) Anything herein to the contrary notwithstanding,
Olympia
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and AREH shall have the right to terminate this agreement, by giving written
notice of such termination to Presidio (without any liability on the part of any
party hereto to any other party hereto, other than liability for breaches
occurring prior to such termination), in the event that Presidio and/or any
affiliate of Presidio fails or refuses to comply with (a) any comment made by
the staff of the Commission to amend the Offers to the extent necessary to
include Presidio and/or affiliate of Presidio as co-bidders and to make any
related disclosures in the Offering Materials or (b) any other reasonable
comment made by the staff relating to the Offers which comment applies to and
contemplates the taking of certain action or making certain disclosures by
Presidio and/or any affiliate of Presidio (and, in the case of clause (a) or (b)
above, after counsel for Presidio has had reasonable opportunity to persuade the
staff of the correctness of Presidio's position on such matter, if different
than that of the staff). The obligations of Presidio pursuant to section 6
hereof will survive such termination.
(b) Anything herein to the contrary notwithstanding, Presidio shall
have the right to terminate this agreement (without any liability on the part of
any party hereto to any other party hereto, other than liability for breaches
occurring prior to such termination), by giving written notice of such
termination to AREH and Olympia, at any time on or after the sixty-first day
following the entry of an Injunction (but in no event prior to June 11, 1998),
provided that the Final Expiration Date has not occurred and such Injunction
remains in effect on the date Presidio terminates such agreement.
8. Miscellaneous
8.1 Definitions. As used in this agreement: the terms "affiliate" and
"control" have the respective meanings given them in Rule 12b-2 under the
Exchange Act; the
16
terms "beneficially own," "beneficial ownership" and "group" have the respective
meanings given them in Rule 13d-3 under the Exchange Act; the term "Partnership"
refers to each of the Partnerships (as defined in the preface to this agreement)
and also includes each entity whose securities are issued to limited partners of
a Partnership pursuant to a transaction of the type described in section 5
hereof; and the term "Unit" refers to Units of each Partnership (as defined in
the preface to this agreement) and also includes any securities of the type
described in section 5 hereof issued to limited partners of a Partnership in
exchange for Units.
8.2 Benefit. This agreement shall be binding upon, and inure to the
benefit of, the respective successors and assigns of the parties.
Notwithstanding the foregoing, no party may assign its rights or obligations
under this Agreement without obtaining the prior written consent of the other
parties; provided, however, that any party may assign its right or obligation to
purchase or sell Units pursuant to Section 4 hereof, provided that such
assignment will not relieve the assigning party of any liability hereunder.
8.3 Governing Law; Jurisdiction. This agreement shall be governed by
and construed in accordance with the law of the state of New York applicable to
agreements made and to be performed wholly in New York. Any litigation based on,
or arising out of, under or in connection with this Agreement or the
consummation of the transactions contemplated hereby shall be brought and
maintained exclusively (to the extent permitted under applicable law) in the
courts of the State of New York, New York County or in the United States
District Court for the Southern District of New York. The parties expressly and
irrevocably submit to the jurisdiction of the courts of the State of New York,
New York County, and of the United States District Court for the Southern
District of New York for the purpose of any such litigation as set forth
17
above and irrevocably agree to be bound by any judgment rendered thereby in
connection with such litigation. Each of the parties irrevocably consents to the
service of process by registered mail, postage prepaid, or by personal service
within or without the State of new York.
8.4 Remedies. The parties to this agreement will be irreparably damaged
if this agreement is not specifically enforced. If any dispute arises under this
agreement concerning any transfer of Units or any other right or obligation,
that right or obligation shall be enforceable in a court of equity by an
injunction or a decree of specific performance without any bond or other
security being required. These remedies shall not be exclusive, and shall be in
addition to any other remedies the parties may have.
8.5 Separability. If any provision of this agreement, or the
application of any provision to any person or circumstance, shall for any reason
or to any extent be invalid or unenforceable, the remainder of this agreement
and the application of that provision to other persons or circumstances shall
not be affected, but shall be enforced to the full extent permitted by law.
8.6 Waiver. The failure of a party to insist upon strict adherence to
any term of this agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this agreement. Any waiver must be in writing.
8.7 Notices. Any notice or other communication under this agreement
shall be in writing and shall be considered given when delivered by hand. Notice
may also be given by electronic facsimile transmission, but in such case will be
deemed given only when received by the addressee. Notices shall be directed to
the parties at their respective addresses set
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forth below (or such other address as the party to be notified may have
requested in writing): (a) if to Presidio, to it c/o Northstar Capital Partners
LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx Xxxxxxx (Tel.
No. (000)000-0000; Fax No. (000)000-0000), with a copy to: Xxxxxx X. Xxxxxx,
Esq., Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Tel. No.
(000)000-0000; Fax No. (000)000-0000) ; and (b) if to AREH or Olympia, to it c/o
Icahn Associates Corp., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Xxxxxx X. Xxxxxx (Tel. No. (000)000-0000; Fax No. (000)000-0000) with a
copy to: Xxxxxxxx Xxxxxx, Esq., Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov & Xxxx,
000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Tel. No. (000)000-0000; Fax No.
(000)000-0000).
8.8 Counterparts. This agreement may be executed in counterparts, each
of which shall be considered an original, but both of which together shall
constitute the same instrument.
8.9 Complete Agreement. This agreement contains a complete statement of
all the arrangement between the parties with respect to its subject matter,
supersedes all existing agreements between them relating to that subject matter
and cannot be changed or terminated orally. Except as expressly set forth
herein, there are no contracts, arrangements, understandings or relationships
between the parties hereto with respect to the Units.
8.10 Joint and Several Liability. AREH shall be jointly and severally
liable for the obligations of AREH and of its affiliates (including Olympia)
hereunder (and, in this regard, any action or inaction required hereunder to be
taken or not taken, or which AREH is required to cause or prevent or not permit
by such affiliate shall be deemed to be an obligation of both such affiliate and
AREH hereunder), and Presidio shall have the right to enforce this
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Agreement with respect to all such matters directly against AREH, without first
being required to file suit or seek recourse of any kind against any other
person. Presidio shall be jointly and severally liable for the obligations of
Presidio and its affiliates (including the general partners of each Partnership)
hereunder (and, in this regard, any action or inaction required hereunder to be
taken or not taken, or which Presidio is required to cause or prevent or not
permit by such affiliate shall be deemed to be an obligation of both such
affiliate and Presidio hereunder), and AREH and Olympia shall have the right to
enforce this Agreement with respect to all such matters directly against
Presidio, without first being required to file suit or seek recourse of any kind
against any other person.
8.11 Delivery of Offering Materials. Presidio hereby agrees on behalf
of the Partnerships and their general partners that, for purposes of compliance
by Olympia (and any affiliates who are co-bidders in the Offers) with Rule
14d-3(a)(2) and (b) of the Rules, Olympia may hand deliver a copy of its
Schedule 14D-1's together with all exhibits thereto and any amendments thereto
to the Partnerships c/o Xxxxxx X. Xxxxxx, Esq., Proskauer Rose, LLP, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and shall send a copy of such materials to
the Partnerships at their principal executive offices for delivery on the next
business day.
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IN WITNESS WHEREOF, the undersigned have caused this agreement to be
executed by their duly authorized representatives as of the date first above
written.
PRESIDIO CAPITAL CORP.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title:
OLYMPIA INVESTORS, L.P.
By: Olympia-GP, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P.
By: American Property Investors, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
[Signature Page of Agreement, dated March 6, 1998, among Presidio Capital Corp.,
Olympia Investors, L.P. and American Real Estate Holdings L.P.]
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Schedule 4.1
The purchase price per Unit payable upon exercise of the Call Option will be the
sum of : (i) the Purchase Price per Unit (as hereinafter defined); and (ii)
Expenses per Unit (as hereinafter defined). The Purchase Price per Unit will
equal the lesser of (A) the price per Unit paid by Olympia in the Offers or (B)
$110.68 per Unit for Units of HEP 85, $99.97 per Unit for Units of HEP86, and
$124.13 per Unit for Units of HEP 88. Notwithstanding the foregoing, in the
event that Olympia increases its offering price per Unit in order to equal or
top a competing bidder, then the Purchase Price per Unit will equal the price
per Unit paid by Olympia in the Offers. Expenses per Unit will equal (i) the sum
of all out-of-pocket costs and expenses incurred by Olympia and its affiliates
(including attorneys fees and expenses) with respect to the Offers and the
purchase and transfer to Olympia or an affiliate of Units purchased pursuant
thereto, including without limitation the fees and expenses of Beacon Hill
Partners (the information agent for the Offer)(including without limitation fees
and expenses incurred in connection with telephone calls to limited partners of
the Partnerships), Xxxxxx Trust Company (the depositary for the Offer), printing
and mailing expenses, Commission filing fees, and any out-of-pocket costs and
expenses attributable to the admission of Olympia or an affiliate as a
substitute limited partner (but will not include (x) any costs and expenses or
attorneys fees and expenses attributable to the negotiation, execution and
delivery of this agreement or any litigation arising out of or in connection
with this agreement or the Offers or (y) the Purchase Price per Unit) divided by
(ii) the total number of Units of the Partnerships purchased by Olympia and its
affiliates pursuant to the Offers.
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