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, 3,243 Units 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
Cownission (the "Commission") a Tender Offer Statement on
Schedule 14D-1 relating to each Offer (collectively, the
"Schedule 14D-l'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-l'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-l's (such Offers to
Purchase, 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 l(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
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"), 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), 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 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 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.
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
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 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 ard 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 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 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 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 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
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 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 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 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
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, 527 Madison Avenue, New York, New
York 10022, Attn: Richard Sabella (Tel. No. (212)319-3400; Fax
No. (212)319-4557), with a copy to: Edward W. Kerson, Esq.,
Proskauer Rose LLP, 1585 Broadway, New York, New York 10036 (Tel.
No. (212)969-3290; Fax No. (212)969-2900); and (b) if to AREH or
Olympia, to it c/o Icahn Associates Corp., 767 Fifth Avenue, 47th
Floor, New York, New York 10153, Attn: Martin L. Hirsch (Tel. No.
(212)702-4343; Fax No. (212)750-5841) with a copy to: Theodore
Altman, Esq., Gordon Altman Butowsky Weitzen Shalov & Wein, 114
W. 47th Street, New York, New York 10036 (Tel. No. (212)626-0812;
Fax No. (212)626-0799).
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 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-l's together with all exhibits thereto and
any amendments thereto to the Partnerships c/o Edward W. Kerson,
Esq., Proskauer Rose, LLP, 1585 Broadway, New York, New York
10036 and shall send a copy of such materials to the Partnerships
at their principal executive offices for delivery on the next
business day.
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/ Richard Sabella
Name: Richard Sabella
Title:
OLYMPIA INVESTORS, L.P.
By: Olympia-GP, Inc.
By: /s/ Martin L. Hirsch
Name: Martin L. Hirsch
Title: Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P.
By: American Property Investors, Inc.
By: /s/ Martin L. Hirsch
Name: Martin L. Hirsch
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.]
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 HEP 86, 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), Harris 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.