EXHIBIT 28
AGREEMENT
This Agreement ("Agreement") is made and entered into as of the 12th
day of March, 1998 by and among PACWEST INLAND EMPIRE, LLC, a Delaware limited
liability company ("PACWEST"), TMP INVESTMENTS, INC., a California corporation
("TMPI") and TMP PROPERTIES, a California general partnership ("TMPP"). TMPI and
TMPP are currently the general partners of the limited partnerships whose names
are set forth on Exhibit A hereto (the "Limited Partnerships"). TMPI and TMPP
and any affiliate of such general partners who may later be admitted to the
Partnerships as additional general partners are collectively hereinafter
referred to as the "General Partners". The Limited Partnerships are herein
sometimes also collectively hereinafter referred to as the "Partnerships."
PACWEST, TMPI, TMPP, the General Partners and the Partnerships are herein
sometimes collectively referred to as the "Parties."
WHEREAS, TMPI and TMPP are the managing general partners of the
Partnerships; and
WHEREAS, the parties hereto intend by this Agreement to provide a
basis whereby PACWEST shall receive from the General Partners distributions made
to them with respect to certain of their Ownership Interests (as hereinafter
defined) in the Limited Partnerships; and
WHEREAS, for the purposes of this Agreement, "Ownership Interests"
shall include the one percent (1%) interest in the Limited Partnership's
allocation of profits and losses and distributions of cash from any source,
whether held directly or indirectly, through a partnership, corporation or other
entity, or through a series or combination thereof.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties hereto agree as follows:
1. Consideration Payable by PACWEST.
Consideration. As consideration for the execution of
this Agreement and the performance hereunder by TMPP, TMPI and the General
Partners:
(a) Cash Consideration. PACWEST shall pay to TMPI
$300,000 in cash; and
(b) Other Consideration. PACWEST agrees to pay the
deficit capital account restoration obligation that the General Partners may
have when the Partnerships liquidate and dissolve, in an amount not to exceed
an aggregate of $300,000 for all of the Partnerships.
2. Consideration Payable by General Partners.
Distribution Fee. The General Partners are entitled to receive
distributions from the Partnerships described in Exhibit A, as a consequence of
their one percent (1%) general partner unsubordinated interests in the
Partnerships. The General Partners agree to pay to PACWEST an amount equal to
the total amount which all general partners, including but not limited to the
General Partners, shall receive at any time as Distributions to general partners
from the Partnerships. When at any time and as any General Partner receives any
of such Distributions, such General Partner shall forthwith pay to PACWEST an
amount equal to the amount received by such General Partner as a Distribution
within five (5) days after the General Partner's receipt thereof. Such amount
paid to PACWEST is referred to as the "Distribution Fee." It is the intention of
the parties that the reference to "Distribution" or "Distributions" herein is
intended to include only those one percent (1%) general partner unsubordinated
interests in each of the Partnerships set forth on Exhibit A and not any other
distribution to which the General Partners are entitled on account of their
interest in the Partnerships. Should the General Partners fail to pay PACWEST
any Distribution or part thereof, which General Partners have received from the
Partnerships within five (5) days after the Distribution is paid to the General
Partners, PACWEST shall have the right to immediately terminate this Agreement
and the Three Hundred Thousand Dollars ($300,000) consideration paid to the
General Partners by PACWEST hereunder shall be returned immediately to PACWEST.
3. Indemnification by General Partners. Each General Partner for itself
alone, and not on behalf of any other General Partner, each hereby agrees (each
an "Indemnitor" and collectively the "Indemnitors") to save and hold PACWEST,
its officers, directors, shareholders, managers, members, employees and agents
("Indemnitees") harmless and defend and indemnify the Indemnitees from and
against any liability (including without limitation reasonable attorneys' fees
and other costs and expenses incident to any suit, action or proceeding) arising
out of or resulting from (a) any liability or obligation, contingent or
otherwise; (b) Indemnitor's negligence or act of omission in regard to any
Partnership occurring or arising from acts or failures to act prior to the
Effective Date; (c) the presence or suspected presence in, on, or about any real
property owned by any Partnership or which any Partnership may have an interest
in of any toxic or hazardous substance, material or waste (as defined in any
applicable Federal, State or local law or regulation), including, but not being
limited to, the costs of investigation, containment, removal and/or clean-up,
whether or not the presence, or alleged presence, of such toxic or hazardous
substance, material or waste constitutes a breach of any representation or
warranty contained herein provided, however, the Indemnitors shall have
liability under this subparagraph (c) only with respect to any incident
involving toxic or hazardous substances which occurred during the ownership of
the property in question by a Partnership at a time when such Indemnitor had an
interest therein or which such Indemnitor otherwise became aware of prior to the
Closing and shall not apply to any occurrence on or after the Effective Date, or
which occurred prior to the time the Indemnitor had an interest in the
Partnership which owned the property in question and such Indemnitor is not, as
of the Closing, aware thereof, or (d) any breach of this Agreement by such
Indemnitor, including, without limitation, the falsity of any representation or
warranty made herein by such Indemnitor. The Indemnitors shall have the right to
decide whether any suit, action or proceeding is settled, tried or appealed and
to select and supervise counsel in connection with any such suit, action or
proceeding provided they shall have given written notice to the Indemnitees and
such indemnitees shall not have reasonably objected to the proposed action
within five (5) days after receipt of such notice or the Indemnitors shall have
received the consent of the Indemnitees to the proposed action, which consent
will not be unreasonably withheld.
4. Closing.
The "Closing" provided for herein shall occur at the offices
of TMPP on March 12, 1998, at 11:00 a.m., (sometimes referred to as the "Closing
Date") or such other time or place that the parties hereto may otherwise
mutually agree, provided that, subject to completion of the Closing, the
Effective Date of this Agreement shall be April 1, 1998 and performance by the
parties under the Management Agreement shall commence at 12:01 a.m. April 1,
1998.
5. Deliveries by PACWEST. At the Closing, PACWEST shall deliver to the
General Partners cash consideration in the sum of THREE HUNDRED THOUSAND DOLLARS
($300,000) payable to TMPP.
Any other document necessary to complete performance of the
Closing obligations of PACWEST.
6. Deliveries by General Partners. At the Closing, the
General Partners and the Partnerships shall deliver to PACWEST the following:
a. Certified resolutions of each General Partner
authorizing this Agreement and the transactions contemplated hereby;
b. Any other document necessary to complete performance of the
Closing obligations of the General Partners and the Partnerships.
7. Scope of Agreement. With respect to a given General Partner, this
Agreement is applicable solely to those Limited Partnerships in which such
General Partner has an Ownership Interest. This Agreement shall not under any
circumstances be construed as creating a partnership or any other relationship
between or among any of the Parties where no such relationship otherwise exists.
8. Effective Period. This Agreement shall be effective as of the
Effective Date and shall remain in effect as to each Partnership until the
winding up, termination or dissolution of such Partnership has been completed.
9. Representations and Warranties of General Partners. Each General
Partner, for itself alone and not on behalf of any other General Partner hereby
represents and warrants to and covenants with PACWEST as follows:
a. Except as otherwise disclosed in Schedule 9.a attached
hereto, each is duly authorized to execute this Agreement in the capacities
indicated; each General Partner owns the General Partner's Ownership Interest
held by it in each Partnership and its right to the Distribution free and clear
of all liens, encumbrances and adverse claims, has not encumbered, assigned,
transferred or otherwise impaired such General Partner's Ownership Interest or
right to Distributions from the Partnerships and is not in default under any
provision of the agreements establishing the Partnerships in which it serves as
General Partner;
b. The execution and performance of this Agreement will not
materially violate any order, rule, judgment or decree to which such General
Partner is subject or breach any contract, agreement or commitment by which he
or it is bound;
c. Each of the Partnerships owns the real properties described
in Exhibit C hereto. d. Each General Partner is a partnership,
or a corporation and each of the Partnerships
is a limited partnership duly organized, validly existing and in good standing
under the laws of the State of its organization and is duly qualified to do
business in the State of California and is duly qualified in each other
jurisdiction where the failure to qualify would have a material adverse effect
upon its business or financial condition; and
e. Each of the Partnerships in which each General
Partner has an Ownership Interest:
i. Except as otherwise disclosed in Schedule
9e.i attached hereto, to the best ofthe General Partners' knowledge, after
due and diligent inquiry, is in full compliance in all material respects with
all Federal, State and local laws, and regulations applicable to the conduct of
its business, including, but not being limited to, all reporting requirements
under all Federal and State securities laws.
ii. Except as otherwise disclosed in Schedule
9e.vii attached hereto, there neither is, nor has been, any generation, handling
, manufacturing, treatment, storage, use, transportation, spillage, leaking,
dumping, discharge or disposal (whether accidental or intentional) of any
toxic or hazardous substance, material or waste on, over or in any of the
parcels of real property which are described in Exhibit C, hereto.
iii. Except as otherwise disclosed in Schedule
9e.iii attached hereto, is not a party to any pending, to the best of any
General Partner's actual knowledge, after reasonable inquiry, any threatened
litigation, including, but not being limited to, any litigation arising out of
the use, operation or ownership of any property in which any such Partnership
may have an interest that might materially affect the use and operation of
any such property, or any portion hereof, for its intended purpose or might
detrimentally affect the value thereof or result in a material and adverse
change in the business or financial condition of such Partnership.
iv. Except as disclosed in Schedule 9e.iv
attached hereto, save and except for leases entered into in the ordinary course
of business covering all or a portion of the property owned by such Partnership,
each such Partnership is not a party to any material contract or other
commitment terminable on more than thirty (30)days' notice.
v. Except as disclosed in Schedule 9e.v
attached hereto, is not a party to any obligation for money borrowed which
is subject to recourse liability to the general assets of such Partnership or
of such General Partner.
vi. Is not a party to or subject to any
financing or refinancing which is in material violation of any provision of
the agreements establishing such Partnership.
vii. Except as otherwise disclosed in Schedule
9e.vii attached hereto, has no material liability, fixed or contingent,
whether recourse or non-recourse, including without limitation unpaid property
taxes, except for the liabilities set forth on or otherwise disclosed in the
financial statements of each of the Partnerships for the fiscal year ended
December 31, 1997, as set forth in Exhibit D hereto, true and complete
copies of which have been delivered to PACWEST, or incurred in the ordinary
course of business after the date of the most recent balance sheet included on
such financial statements and except to the extent that any such liability,
individually or in the aggregate, would not materially and adversely affect the
financial condition, business, properties, assets or results of operations of
such Partnership.
viii. Except as otherwise disclosed in Schedule
9e.viii is not in material default under any lease to which it is a party and is
not a party to any lease covering more than Ten Thousand (10,000) square feet
of space wherein any party thereto is in default, except to the extent any such
default, individually or in the aggregate, would not materially and adversely
affect the financial condition, business, properties, assets, or results of
operations of such Partnership.
ix. Except as otherwise expressly disclosed in
Schedule 9e.ix attached hereto, is not a debtor in any proceeding under the
Bankruptcy Code or an assignee under an assignment for the benefit of creditors.
x. Is in substantial compliance with all
material covenants, conditions, restrictions and other agreements applicable
to any property owned by such Partnership, or in which such Partnership has an
interest, including, but not being limited to, the provisions of any applicable
association which holds rights in any common areas which form a part of any such
property except to the extent such failure to comply, individually or in the
aggregate, would not materially and adversely affect the financial condition,
business, properties, assets or results of operations of such General Partner.
xi. Except as expressly disclosed in Schedule
9e.xi attached hereto, to each General Partner's and each Partnerships'
current actual knowledge, without further inquiry, there is no existing,
proposed or contemplated plan, study or effort of any governmental agency or
authority which, in any way, would materially affect the use of any property
owned by such Partnership, or in which such Partnership may have an interest, or
any portion thereof, for its presently intended use.
xii. Owns the assets described on Exhibit C hereto
and, with respect to interests in real property (based solely upon such title
insurance as such Partnership may hold with respect thereto), such Partnership
holds marketable fee title thereto, and with respect to all personal property
and intangible assets, holds title free and clear of all liens,
encumbrances and adverse claims, except as otherwise disclosed in Schedule
9e.xii attached hereto.
10. Representations and Warranties of PACWEST. PACWEST hereby
represents and warrants as follows: a. PACWEST is a limited liability company
duly organized, validly existing and in good standing under the laws of the
state of Delaware and is duly qualified in such other jurisdictions where the
failure to so qualify would have a material adverse effect upon its business
or financial condition.
b. PACWEST is duly authorized to execute this Agreement. The
execution and performance of this Agreement by PACWEST will not violate any
order, rule, judgment or decree to which PACWEST is subject or breach any
contract, agreement or commitment by which PACWEST is bound.
c. The execution and delivery of this agreement and the
Management Agreement and the performance by PACWEST of its obligations hereunder
and thereunder will not conflict with or result in the breach or violation of or
constitute a default or an event of default under any law, rule or regulation,
or any judgment or order of any court or any of the terms or provisions of
PACWEST's Operating Agreement or of any agreement or contract to which PACWEST
is a party or to which PACWEST is subject.
d. PACWEST is not a party to any pending litigation or
regulatory action which would affect its ability to carry out its obligations
under this Agreement and the Management Agreement nor, to the best of the
knowledge of PACWEST, is any such action or proceeding currently threatened.
e. PACWEST is in compliance with all applicable laws and
regulations applicable to the conduct of its business.
11. Entire Agreement. This Agreement, contains the entire agreement of
the Parties with respect to the transactions contemplated hereby and shall not
be modified or amended except by an instrument signed by or on behalf of the
Parties.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
13. Governing Law. This Agreement shall be governed by and enforced in
accordance with the laws of the State of California.
14. Attorneys' Fees. In any dispute between or among the Parties
relating to or arising out of the interpretation or breach of this Agreement,
the prevailing party or parties shall be entitled to recover from the other
party or parties all reasonable expenses including without limitation attorneys'
fees and court costs.
15. Severability. If one or more of the provisions contained in this
Agreement shall, for any reason, be held unenforceable in any respect, its
unenforceability shall not affect any other provisions, and the Agreement shall
be construed as if the unenforceable provision had not been included.
16. Other Acts. PACWEST and each Partnership and General Partner
covenants on behalf of itself and its successors, heirs and assigns to execute,
with acknowledgment, verification or affidavit if required, any and all
documents and writings and to perform any and all other acts that may be deemed
by any such Partnership, General Partner or PACWEST necessary or expedient in
connection with the creation of this Agreement (including the Management
Agreement), the achievement of its purposes or the consummation of any matter
covered hereby.
17. Successors and Assigns. PACWEST shall have the right to assign its
rights and obligations under this Agreement to an affiliate, as hereinafter is
defined in Section 150 of the General Corporation Law of the State of California
subject to the receipt of the consent of the General Partner or the General
Partners who have an interest in the Partnerships which would be affected
thereby, which consent will not be unreasonably withheld. Any assignment by
PACWEST to any other person of any of its rights and obligations shall be
subject to the consent of the General Partner or General Partners who have
interests in the Partnership affected thereby, which consent may be withheld in
the sole and absolute discretion of such General Partners. Subject to the
foregoing, the terms and conditions of this Agreement shall not be assignable
and shall be binding upon and inure to the benefit of the successors, heirs and
assigns of the respective Parties.
18. Notices. Any notices required or permitted to be given hereunder
shall be given in writing and sent by United States certified mail, return
receipt requested, addressed to the respective parties as follows:
To PACWEST: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
PACWEST Inland Empire, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With Copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Pancione, P.C.
1901 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Each of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Other Parties: TMP Investments, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With Copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇, Forward, ▇▇▇▇▇▇▇▇ & Scripps
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as any Party may designate by written notice to the
other Party. Notices shall be deemed given on the third calendar day following
deposit in the United States Mail as aforesaid.
19. Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall,
together, constitute but one and the same instrument.
20. Exhibits. The following exhibits and schedules are attached to
this Agreement: A - Schedule of Limited Partnerships
B - INTENTIONALLY OMITTED
C - Schedule of Properties
D - Financial Statements as of December 31, 1997 of the
Partnerships Schedule 9a - Ownership Interests Encumbrances
Schedule 9e.i - Legal Disclosures
Schedule 9e.iii - Litigation Disclosure
Schedule 9e.iv - Material Contracts Disclosure
Schedule 9e.v - Recourse Debt Disclosure
Schedule 9e.vii - Material Liabilities/Hazardous Substance
Disclosure
Schedule 9e.viii - Material Lease Defaults
Schedule 9e.ix - Bankruptcy Disclosure
Schedule 9e.xi - Governmental Action Disclosure
Schedule 9e.xii - Liens Disclosure
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
as of the date first written above.
PACWEST INLAND EMPIRE, LLC
a Delaware limited liability company
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Manager
TMP INVESTMENTS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President
TMP PROPERTIES
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Partner
EXHIBIT A
Schedule of Limited Partnerships
1. TMP Bloomington II LTD.
2. TMP Inland Empire II LTD.
3. TMP Inland Empire III LTD.
4. TMP Inland Empire IV LTD.
5. TMP Inland Empire V LTD.
6. TMP Inland Empire VI LTD.
7. TMP Inland Empire VII LTD.
8. TMP Tuscany Oaks LTD.
9. TMP Land Fund LTD.
10. TMP Land Mortgage Fund LTD.
11. TMP Mortgage Income Plus LP
EXHIBIT B
Exhibit B has been INTENTIONALLY OMITTED.
EXHIBIT C
Schedule of Properties
Description of Partnership Property
Partnerships Location Acres Zoning
TMP BLOOMINGTON II SEC Mission Blvd & Agate Street 4.22 C1
TMP INLAND EMPIRE II Baseline &Village Center 18 CC
TMP INLAND EMPIRE ▇▇▇ ▇▇▇▇▇ ▇▇ & ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ EMPIRE IV Circle C Road 320 R1
S Oleander & W ▇▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ St 6.44 ▇-▇
▇▇▇▇▇ ▇▇ & ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇ 17 R-4
Village Drive & Armagosa 25 C1-R3
TMP INLAND EMPIRE V Ethanac & Sophie 8.93 R
S. Highland & Tamarind ▇▇ ▇-▇▇
▇▇▇▇▇▇▇ ▇▇ & Beaver 40 R1
Mojave & Amethyst 7 C
Mojave & Amethyst 10 C
S Mojave Dr & ▇▇▇▇ ▇▇▇▇▇ S ▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇ ▇▇▇ All
Bellflower & North Yucca 4.49 C
TMP INLAND EMPIRE VI State St & ▇▇▇▇▇▇ Blvd 10.48 ▇-▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇ min
I-10 Freeway & Chase School 76 CPS-IP
SWC ▇▇▇▇▇ ▇▇ & ▇▇▇▇▇ ▇▇. ▇▇ ▇▇
▇▇▇ ▇▇. & Old Ranch Rd 12.46 1/2 min
18.22 Adelanto 18.22 R1
NEC Koala & ▇▇▇▇▇▇▇ 42.44 R1
TMP INLAND EMPIRE VII SEC Nuevo & ▇▇▇▇▇ 9.6 C2
NEC Cactus & ▇▇▇▇▇▇ ▇▇.▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ ▇▇ 41
SEC of Hwy 395 & Hopland Ave 19.5 C2
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. 18 M1
TMP TUSCANY OAKS ▇▇▇▇▇▇ & Old Ranch Rd 200 R1
Brookside & ▇▇▇▇▇▇ 60 3/4 min.
▇▇▇▇ ▇▇▇▇▇-Golden Triangle
Area 14 DS
TMP Land Fund I Cactus & Daisy-Aster 39 R
Palmdale & Bellflower 14.81 C
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ 10 DS
Land Mortgage Fund San Jacinto Residential R1
NEC Newport and ▇▇▇▇▇▇▇ ▇▇ 10.84 C
Fox ▇▇▇▇▇ Res. Newport and
▇▇▇▇▇▇▇ ▇▇. 12.5 R1
Sunset Ave & Interstate 10 44.9 C
Remington Hills JV 50 R1
Peppertree J.V.
Mortgage Income Plus Maple Bus. Ctr Bellflower &
Verbina ▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇▇ 73 ac. ▇▇▇▇▇▇ Canyon 171 R1
EXHIBIT D
Financial Statements as of December 31, 1997 of the Partnerships
Schedule 9a - Ownership Interests Encumbrances
None
Schedule 9e.i - Legal Disclosures
None
Schedule 9e.iii - Litigation Disclosure
None
Schedule 9e.iv - Material Contracts Disclosure
None
Schedule 9e.v - Recourse Debt Disclosure
None
Schedule 9e.vii - Material Liabilities/Hazardous Substance Disclosure
None
Schedule 9e.viii - Material Lease Defaults
None
Schedule 9e.ix - Bankruptcy Disclosure
None
Schedule 9e.xi - Governmental Action Disclosure
None
Schedule 9e.xii - Liens Disclosure
None
