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EXHIBIT 1
REDEMPTION AND REORGANIZATION AGREEMENT
This Redemption and Reorganization Agreement (the "Agreement") is made this
___ day of March 2001, by and among THE COSMOPOLITAN AT XXXXX PARK, LLC, a
Delaware limited liability company (the "Entity"), HISTORIC PRESERVATION
PROPERTIES 1989 LIMITED PARTNERSHIP, a Delaware limited partnership ("HPP89"),
and XXXXXXX X. XXXXXX, an individual resident of South Dartmouth, Massachusetts
("Xxxxxxx Xxxxxx").
Recitals
1. The Entity owns an historic property known as The Cosmopolitan at Xxxxx
Park, located in St. Xxxx, Minnesota (the "Property") that was rehabilitated
into 255 market rate apartment units in 1989 in such a way as to generate
historic rehabilitation tax credits.
2. The Entity is currently governed by the terms of an Operating Agreement
dated March 15, 1996 (the "Operating Agreement").
3. The two members of the Entity are HPP89 and Xxxxxxx Xxxxxx, each
currently owning a 50% interest, subject to the terms of the Operating
Agreement.
4. The Entity is currently managed by a board of managers (the "Board")
comprised of two individual non-member managers ("Managers"), Xxxxxxxx X.
Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxx ("X. Xxxxxx"). A third non-member
manager, Xxxxxxx X. Xxxxx, Xx. ("Xxxxx"), has ceased to be an active Manager.
5. The Property is currently encumbered by a mortgage loan originally held
by Xxxxxx Financial, Inc. in an original principal amount of Seven Million
Dollars ($7,000,000.00) (the "Xxxxxx Loan"), as evidenced by a promissory note
dated March 20, 1996 (the "Xxxxxx Note").
6. Xxxxxxx Xxxxxx wishes to have the Entity redeem from her a 49% interest
(such interest being referred to herein as the "Redemption Interest" and the act
of redemption of the Redemption Interest by the Entity being referred to herein
as the "Redemption") in the Entity.
7. HPP89 wishes to have the Entity complete the Redemption, the result of
which would be to increase the interest of HPP89 in the Entity from 50% to 99%.
8. The Entity is currently negotiating the terms of a new $14,000,000
mortgage loan from Xxxxxx Mae (the "Xxxxxx Xxx Refinancing"), the proceeds of
which will be more than sufficient to pay off the Xxxxxx Loan.
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9. HPP89 is willing to have a portion of the excess proceeds of the Xxxxxx
Xxx Refinancing that would otherwise be distributed to it under the terms of the
Operating Agreement be used by the Entity instead to complete the Redemption.
10. In connection with the Xxxxxx Mae Refinancing and the Redemption, X.
Xxxxxx and Xxxxx intend to resign from the Board as Managers and Xxxxxx X. Xxxx
("Xxxx") intends to accept a position on the Board as a substitute Manager.
11. HPP89 and Xxxxxxx Xxxxxx wish to amend and restate the Operating
Agreement in such a way as to reflect the Redemption, the resulting reallocation
of interests between HPP89 and Xxxxxxx Xxxxxx, the resignation of X. Xxxxxx and
Xxxxx as Managers, the appointment of Xxxx as substitute Manager, the reduction
in the minimum required number of Board members, and such other changes as may
be deemed appropriate by the continuing parties.
Agreement
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. The Redemption. Upon the terms and subject to the conditions set
forth herein, the Entity agrees to redeem the Redemption Interest and Xxxxxxx
Xxxxxx agrees to have the Redemption Interest redeemed on the Closing Date.
SECTION2. Redemption Amount. The parties agree that the amount to be paid
to complete the Redemption (the "Redemption Amount") shall be $6,436,904.00,
subject to adjustment in sixty (60) days as set forth hereunder. The
$6,436,904.00 amount has been calculated based upon operating reports of the
Entity dated as of March 25, 2001, prepared by Claremont Management Company (the
"Property Manager"), including an income statement, a balance sheet and a
statement of cash flows (collectively, the "March Operating Reports," copies of
which will be attached as schedules to the Certificate of Property Manager
annexed hereto as Exhibit B). The $6,436,904.00 shall be paid at Closing by the
Entity by wire transfer to an account to be designated by Xxxxxxx Xxxxxx. The
Redemption Amount shall be subject to adjustment if, within sixty (60) days of
the Closing, either HPP89 or Xxxxxxx Xxxxxx determines that any significant
item(s) of income, expense, asset or liability that should have been properly
reflected in the March Operating Reports were not properly reflected. In such
case, the Property Manager shall deliver revised operating reports that show the
differences from the March Operating Reports to HPP89 and Xxxxxxx Xxxxxx for
their review. If and to the extent that the parties determine that there have
been any income, expense, assets or liabilities of the
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Entity that had not been reflected in the March Operating Reports, the
Redemption Amount shall be equitably adjusted, upward or downward, to reflect
the new information. If there is an upward adjustment, HPP89 shall pay Xxxxxxx
Xxxxxx the additional amount within thirty (30) days of the adjustment. If there
is a downward adjustment, Xxxxxxx Xxxxxx shall return the excess amount to HPP89
within thirty (30) days of the adjustment.
SECTION 3. Closing. The Closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at 10:00 a.m. on March 28, 2001 (the
"Closing Date") at the offices of Holland & Knight LLP, 00 Xx. Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or such other date and place as shall be mutually
agreed upon by the parties hereto. Time is of the essence.
SECTION 4. Representations and Warranties.
4.1 Mutual Representations and Warranties. Each party represents and
warrants to the other parties that to the best of its/his/her knowledge and
belief (for purposes hereof each party shall be referred to as "it"):
4.1.1 The execution and delivery by it of this Agreement, the
performance by it of its obligations hereunder and the Redemption will
not violate any agreement, provision of law, any order of a court or
other agency of government, or any provision of any indenture,
agreement or other instrument to which such party is bound.
4.1.2 This Agreement has been duly executed and delivered by such
party and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
4.1.3 There is no: (a) action, suit, claim, proceeding or
investigation pending or threatened against or affecting such party,
at law or in equity, or before or by any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign; (b) arbitration proceeding
relating to such party, pending under collective bargaining agreements
or otherwise; or (c) governmental inquiry pending or threatened
against or affecting such party that could affect such party's ability
to timely perform its obligations hereunder.
4.2 Xxxxxxx Xxxxxx'x Representations and Warranties. Xxxxxxx Xxxxxx
further represents and warrants that she is the owner of the Redemption
Interest, free and clear of all liens, charges, restrictions, claims and
encumbrances other than those matters encumbering the Property, including,
but not limited to, a first mortgage loan to be entered
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into in connection with the Closing securing the obligations of the Entity under
the Xxxxxx Mae Refinancing.
SECTION 5. Conditions to Closing.
5.1 Accuracy of Representations and Warranties. All representations and
warranties in this Agreement or in any other agreement or Exhibit are true and
accurate in all material respects on the date hereof and will be true and
accurate on and as of the Closing Date as though made on that date.
5.2 Mutual Release. Each of the parties shall deliver to the other at
Closing the Releases in the forms annexed hereto as Exhibits A-1 through A-3,
respectively, including a release from all claims, causes of action and/or
liabilities first arising after the date hereof and which relate in any way to
the Redemption Interest (collectively, the "Released Matters"). ----------------
5.3 Certificate from Property Manager. The Property Manager shall deliver
at Closing a Certificate in the form annexed hereto as Exhibit B, certifying as
to the completeness and accuracy of the information contained in the March
Operating Reports, upon which the Redemption Amount has been based.
5.4 Non-Interference Agreement. X. Xxxxxx shall execute and deliver at
Closing a Non-Interference Agreement in the form annexed hereto as Exhibit C in
which he agrees, on his own behalf and on behalf of his affiliates or other
parties controlled by him, that he shall not interfere with the future
operations of the Entity, HPP89 or the Property.
5.5 Resignation of Managers. X. Xxxxxx and Xxxxx shall execute and deliver
at Closing Resignations in the form annexed hereto as Exhibits D-1 and D-2 in
which each of them shall resign his position as a Manager of the Entity and
acknowledge that he ceases to be a party to the Operating Agreement.
5.6 Releases from X. Xxxxxx and Xxxxx. X. Xxxxxx and Xxxxx shall each
execute and deliver a Release for the benefit of the Entity, HPP89, Xxxxxxxx and
each other.
5.7 Release from Xxxxxxxx. Xxxxxxxx shall execute and deliver a Release for
the benefit of Xxxxxxx Xxxxxx, the Entity, X. Xxxxxx and Xxxxx.
SECTION 6. Deliveries by Xxxxxxx Xxxxxx. At Closing, Xxxxxxx Xxxxxx shall
deliver the following to the Entity and to HPP89:
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6.1 An executed copy of the Amended and Restated Operating Agreement of the
Entity in the form annexed hereto as Exhibit E, which shall reflect the
Redemption and the reallocation of interests in the Entity, 99% to HPP89 and 1%
to Xxxxxxx Xxxxxx.
6.2 The Release contemplated by Section 5.2; and
6.3 Such other instruments and documents as are required to be delivered at
Closing by Xxxxxxx Xxxxxx pursuant to the provisions of this Agreement, or as
are reasonably required to evidence compliance with the representations,
warranties and covenants of Xxxxxxx Xxxxxx contained in this Agreement.
SECTION 7. Deliveries By HPP89. At Closing, HPP89 shall deliver the
following:
7.1 A copy of the Amended and Restated Operating Agreement of the Entity in
the form annexed hereto as Exhibit E, executed by HPP89 as a Member and by
Xxxxxxxx and Xxxx as Managers, which shall reflect the Redemption and the
reallocation of interests in the Entity, 99% to HPP89 and 1% to
Xxxxxxx Xxxxxx.
7.2 The Release contemplated by Section 5.2.
7.3 Such other instruments and documents as are required to be delivered at
Closing by HPP89 pursuant to the provisions of this Agreement, or as are
reasonably required to evidence compliance with the representations, warranties
and covenants of HPP89 contained in this Agreement.
SECTION 8 Deliveries by the Entity. At the Closing, the Entity shall
deliver the following to Xxxxxxx Xxxxxx:
8.1 The wire transfer, provided for in Section 2;
8.2 The Release contemplated by Section 5.2; and
8.3 Such other instruments and documents as are required to be delivered at
Closing by the Entity pursuant to the provisions of this Agreement, or as are
reasonably required to evidence compliance with the representations, warranties
and covenants of the Entity contained in this Agreement.
SECTION 9 Survival of Representations and Warranties. The representations
and warranties contained in this Agreement or in any document, certificate,
instrument or Exhibit delivered in connection herewith shall survive the Closing
for a period of thirty (30) days.
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SECTION 10. Other Agreements of the Parties.
10.1 Entire Agreement; Modification; Waiver. This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter contained
in it and supersedes all prior and contemporaneous agreements, representations
and understandings of the parties. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all parties
hereto. No waiver of any of the provisions of this Agreement will be deemed or
will constitute a waiver of any other provision, whether or not similar, nor
will any waiver constitute a continuing waiver. No waiver will be binding unless
executed in writing by the party making the waiver.
10.2 Successors and Assigns; Assignment. This Agreement shall be binding on
and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. Neither party hereof may assign this
Agreement without the prior written consent ----------------------------------
of the other party hereto.
10.3 Notices. All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement shall be in
writing and will be deemed to have been given on the date of delivery personally
or by deposit in the United States mail, postage prepaid, by registered or
certified mail, return receipt requested, addressed as follows:
To Xxxxxxx Xxxxxx: Xxxxxxx X. Xxxxxx
Xxx Xxxxxxxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
with a copy to: Xxxxxx X. Xxxxxxx, Esq.
Bernkopf, Xxxxxxx & Baseman LLP
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
To the Entity or
HPP89: Attention: Xxxxxxxx X. Xxxxxxxx
Boston Bay Capital
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
with a copy to: Xxxxxxxx Xxxxxxxx, Esq.
Holland & Knight LLP
00 Xx. Xxxxx Xxxxxx
Xxxxxx, XX 00000
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10.4 Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
10.5 Further Assurances. The parties each hereby agree to execute and
deliver all of the agreements, documents and instruments required to be executed
and delivered by them in this Agreement and to execute and deliver such
additional instruments and documents and to take such additional actions as may
reasonably be required from time to time in order to effectuate the transactions
contemplated by this Agreement, whether prior to, at, or after the Closing.
10.6 Severability of Provisions. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
10.7 Governing Law. This Agreement is executed and delivered in, and shall
be interpreted in accordance with, the laws of the Commonwealth of
Massachusetts.
10.8 Exhibits. The Exhibits attached hereto constitute a part of this
Agreement and are incorporated herein by reference in their entirety as if fully
set forth in this Agreement at the point where first mentioned herein.
10.9 No Brokers. The parties each warrant and represent to the other that
they have dealt with no real estate broker in connection with this transaction.
Each party agrees to indemnify all other parties against and to hold such other
parties harmless from any loss, damage, cost or expense, including reasonable
attorneys' fees, incurred by the other parties, as a result of any claim for a
brokerage commission or fee which may be asserted against such other parties in
connection with this transaction by any broker. The provisions of this Section
shall survive the Redemption.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
XXXXXXX XXXXXX:
-------------- --------------------------------------------------------
Xxxxxxx X. Xxxxxx
ENTITY: THE COSMOPOLITAN AT XXXXX PARK, LLC
------
By:
-----------------------------------------------
Xxxxxxx Xxxxxx, Manager
By:
-----------------------------------------------
Xxxxxxxx X. Xxxxxxxx, Manager
HPP89: HISTORIC PRESERVATION PROPERTIES
1989 LIMITED PARTNERSHIP
By: Boston Historic Partners Limited
Partnership, General Partner
By: Portfolio Advisory Services,
Inc., General Partner
By:
-------------------------------
Xxxxxxxx X. Xxxxxxxx
President
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EXHIBIT A-1
LIMITED RELEASE
March __, 2001
In consideration of One Dollar ($1.00) and other good and valuable
consideration paid to Xxxxxxx X. Xxxxxx ("Xxxxxxx Xxxxxx") by each of Historic
Preservation Properties 1989 Limited Partnership ("HPP"), The Cosmopolitan at
Xxxxx Park, LLC (the "Entity"), Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx
Xxxxxx ("X. Xxxxxx") and Xxxxxxx X. Xxxxx, Xx. ("Xxxxx") the receipt whereof is
hereby acknowledged, Xxxxxxx Xxxxxx hereby remises, releases and forever
discharges HPP, the Entity, Xxxxxxxx, X. Xxxxxx and Xxxxx from all debts,
demands, actions, causes of action, suits, dues, sum and sums of money,
accounts, reckonings, bonds, specialties, covenants, contracts, controversies,
agreements, promises, doings, omissions, variances, damages, extents, executions
and liabilities of every kind, nature and description whatsoever, both in LAW
and EQUITY, which against HPP, the Entity, Xxxxxxxx, X. Xxxxxx and Xxxxx or the
officers, directors, administrators, affiliates, successors, agents, servants,
employees, attorneys or assigns or any of them Xxxxxxx Xxxxxx now has, may have
or ever had from the beginning of the world to this date on account of any and
all matters relating to those Member interests being redeemed this date by the
Entity from Xxxxxxx Xxxxxx.
Executed as a sealed instrument the day and year above written.
Signed in the presence of:
Xxxxxxx X. Xxxxxx
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EXHIBIT A-2
LIMITED RELEASE
March __, 2001
In consideration of One Dollar ($1.00) and other good and valuable
consideration paid to Historic Preservation Properties 1989 Limited Partnership
("HPP") by each of Xxxxxxx X. Xxxxxx ("Xxxxxxx Xxxxxx"), The Cosmopolitan at
Xxxxx Park, LLC (the "Entity"), Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx
Xxxxxx ("X. Xxxxxx") and Xxxxxxx X. Xxxxx, Xx. ("Xxxxx") the receipt whereof is
hereby acknowledged, HPP hereby remises, releases and forever discharges Xxxxxxx
Xxxxxx, the Entity, Xxxxxxxx, X. Xxxxxx and Xxxxx from all debts, demands,
actions, causes of action, suits, dues, sum and sums of money, accounts,
reckonings, bonds, specialties, covenants, contracts, controversies, agreements,
promises, doings, omissions, variances, damages, extents, executions and
liabilities of every kind, nature and description whatsoever, both in LAW and
EQUITY, which against Xxxxxxx Xxxxxx, the Entity, Xxxxxxxx, X. Xxxxxx and Xxxxx
or the officers, directors, administrators, affiliates, successors, agents,
servants, employees, attorneys or assigns or any of them HPP now has, may have
or ever had from the beginning of the world to this date on account of any and
all matters relating to those Member interests being redeemed this date by the
Entity from Xxxxxxx Xxxxxx.
Executed as a sealed instrument the day and year above written.
HISTORIC PRESERVATION PROPERTIES,
1989 LIMITED PARTNERSHIP
By: Boston Historic Properties Limited
Partnership, its general partner
Signed in the presence of: By: Portfolio Advisory Services,
Inc., its general partner
By:
-------------------------- --------------------------------
Xxxxxxxx X. Xxxxxxxx,
its President
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EXHIBIT A-3
LIMITED RELEASE
March --, 2001
In consideration of One Dollar ($1.00) and other good and valuable
consideration paid to The Cosmopolitan at Xxxxx Park, LLC (the "Entity") by each
of Xxxxxxx X. Xxxxxx ("Xxxxxxx Xxxxxx"), Historic Preservation Properties 1989
Limited Partnership ("HPP"), Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx Xxxxxx
("X. Xxxxxx") and Xxxxxxx X. Xxxxx, Xx. ("Xxxxx") the receipt whereof is hereby
acknowledged, the Entity hereby remises, releases and forever discharges Xxxxxxx
Xxxxxx, HPP, Xxxxxxxx, X. Xxxxxx and Xxxxx from all debts, demands, actions,
causes of action, suits, dues, sum and sums of money, accounts, reckonings,
bonds, specialties, covenants, contracts, controversies, agreements, promises,
doings, omissions, variances, damages, extents, executions and liabilities of
every kind, nature and description whatsoever, both in LAW and EQUITY, which
against Xxxxxxx Xxxxxx, HPP, Xxxxxxxx, X. Xxxxxx and Xxxxx or the officers,
directors, administrators, affiliates, successors, agents, servants, employees,
attorneys or assigns or any of them the Entity now has, may have or ever had
from the beginning of the world to this date on account of any and all matters
relating to those Member interests being redeemed this date by the Entity from
Xxxxxxx Xxxxxx.
Executed as a sealed instrument the day and year above written.
THE COSMOPOLITAN AT XXXXX PARK, LLC
Signed in the presence of:
------------------------------------------
By:
---------------------------- ----------------------------
Xxxxxxx Xxxxxx, Manager
By:
---------------------------- ----------------------------
Xxxxxxxx X. Xxxxxxxx, Manager
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LIMITED RELEASE
March __, 2001
In consideration of One Dollar ($1.00) and other good and valuable
consideration paid to Xxxxxxx X. Xxxxx, Xx. ("Xxxxx") by each of Xxxxxxx X.
Xxxxxx ("Xxxxxxx Xxxxxx"), Historic Preservation Properties 1989 Limited
Partnership ("HPP"), The Cosmopolitan at Xxxxx Park, LLC (the "Entity"),
Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxxxx ("X. Xxxxxx") the receipt
whereof is hereby acknowledged, Xxxxx hereby remises, releases and forever
discharges Xxxxxxx Xxxxxx, HPP, the Entity, Xxxxxxxx and X. Xxxxxx from all
debts, demands, actions, causes of action, suits, dues, sum and sums of money,
accounts, reckonings, bonds, specialties, covenants, contracts, controversies,
agreements, promises, doings, omissions, variances, damages, extents, executions
and liabilities of every kind, nature and description whatsoever, both in LAW
and EQUITY, which against Xxxxxxx Xxxxxx, HPP, the Entity, Xxxxxxxx and X.
Xxxxxx or the officers, directors, administrators, affiliates, successors,
agents, servants, employees, attorneys or assigns or any of them Xxxxx now has,
may have or ever had from the beginning of the world to this date on account of
any and all matters relating to those Member interests being redeemed this date
by the Entity from Xxxxxxx Xxxxxx.
Executed as a sealed instrument the day and year above written.
Signed in the presence of:
Xxxxxxx X. Xxxxx, Xx.
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Exhibit B
CERTIFICATE OF PROPERTY MANAGER
The undesignated Claremont Management Company, Property Manager of the St.
Xxxx, Minnesota property owned by The Cosmopolitan at Xxxxx Park, LLC, hereby
certifies that it has prepared and reviewed the March Operating Reports of said
property attached hereto, consisting of an income statement, a balance sheet and
a statement of cash flows of such property, all as of March 25, 2001, and that
such March Operating Reports are complete and accurate in all respects.
CLAREMONT MANAGEMENT COMPANY
By: __________________________
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EXHIBIT C
NON-INTERFERENCE AGREEMENT
This NON-INTERFERENCE AGREEMENT (the "Agreement") is made this ____ day of
March, 2001, by and among Xxxxxxx Xxxxxx, acting on his own behalf and on behalf
of his family members, affiliated entities and other natural persons or entities
that he controls by virtue of employment status, beneficial ownership or
otherwise (collectively, "Xxxxxx"), The Cosmopolitan at Xxxxx Park, LLC
("TCAMP"), and Historic Preservation Properties 1989 Limited Partnership
("HPP89").
RECITALS
1. TCAMP owns an historic property known as the Cosmopolitan at Xxxxx Park,
located in St. Xxxx, Minnesota (the "Property").
2. Since the date of organization of TCAMP, Xxxxxx has served as a Manager
thereof.
3. Since the date of organization of TCAMP, Xxxxxxx X. Xxxxxx ("Xxxxxxx"),
the wife of Xxxxxx, has been one of two Members thereof.
4. Since the date of organization of TCAMP, Claremont Management Company, a
company controlled by Xxxxxx, has been the property manager of the Property.
5. HPP89 is the only other Member of TCAMP.
6. Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx") is also a Manager of TCAMP.
7. Xxxxxx and Xxxxxxxx, as Managers of TCAMP, have arranged for the
refinancing of the Property in an amount of money that will provide substantial
net proceeds in excess of the amount required for discharge the existing
mortgage on the Property.
8. HPP89 has agreed to forego its allocable share of such net proceeds of
the refinancing so as to allow TCAMP to redeem all but 1% of Lillian's interest
thereon, and on the condition that Xxxxxx enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and subfinancing of which are hereby
acknowledged, the parties hereto agree as follows:
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Section 1. Non-Interference. Xxxxxx hereby agrees that, from and after the
date of redemption of the interest of Xxxxxxx, it shall forbear from making any
communication, taking any action, or, causing any other party, whether or not
affiliated therewith, from making any communication or taking any action that
may interfere with the ownership, operation and disposition of the Property by
TCAMP, the management rights and obligations of Xxxxxxxx and Xxxxxx X. Xxxx
("Xxxx") as the Managers of TCAMP under the terms of its governing agreement
(the "Operating Agreement") or the rights and obligations of HPP89 as the
majority Member of TCAMP under the Operating Agreement. Moreover, for such
period of time as Claremont Management Company may continue as property manager
of the Property, Xxxxxx shall cause it to act strictly in accordance with the
terms of the property management agreement, and to forbear from the use of any
information that it now has or subsequently receives about the Property or TCAMP
for any purpose that may be deemed inimical to the interests of TCAMP, Xxxxxxxx,
Xxxx or HPP89. Such forbearance on the part of Xxxxxx shall include, without
limitation, any effort to obtain control of TCAMP or HPP89, any attempt to
solicit a purchaser of the Property or of the interest of HPP89 in TCAMP without
the express written consent of Xxxxxxxx and Xxxx, or any communication with any
other party or parties that might be deemed to be an invitation to others to
conduct such prohibited activities.
Section 2. Equitable Remedies. Xxxxxx hereby acknowledges and agrees that
his agreement hereunder has been an express condition to the willingness of
HPP89 to surrender its rights under the current, governing agreement of TCAMP to
receive a share of the excess proceeds of refinancing, and that once such excess
proceeds have been used instead to redeem all but 1% of the interest of Xxxxxxx
in TCAMP, HPP89 will have permanently changed its position to its detriment, if
Xxxxxx fails to honor its obligation hereunder. Therefore, Xxxxxx specifically
agrees that TCAMP and/or HPP89 shall be entitled to pursue any equitable remedy,
including, without limitation, a temporary restraining order, preliminary or
final injunction preventing Xxxxxx from persisting in its detrimental behavior.
Section 3. Money Damages. In addition to the foregoing, Xxxxxx hereby
agrees and acknowledges that it shall be liable for all costs and expenses
incurred by TCAMP and/or HPP89 in connection with their efforts to enforce this
Agreement, including without limitation costs of counsel.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
XXXXXXX XXXXXX THE COSMOPOLITAN AT XXXXX PARK, LLC
---------------------------- By: -----------------------------
Xxxxxxxx X. Xxxxxxxx, Manager
By: -----------------------------
Xxxxxx X. Xxxx, Manager
HISTORIC PRESERVATION PROPERTIES
1989 LIMITED PARTNERSHIP
By: Boston Historic Properties Limited
Partnership, its general partner
By: Portfolio Advisory Services,
Inc., its general partner
By:
-----------------------------
Xxxxxxxx X. Xxxxxxxx,
its President
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EXHIBIT D-1
The Cosmopolitan at Xxxxx Park, LLC
c/o Historic Preservation Properties 1989 Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxx
Re: Resignation as Manager
Gentlemen:
I am a Manager of the Cosmopolitan at Xxxxx Park, LLC (the "LLC"), under
the terms of the Operating Agreement of the LLC dated as of March 15, 1996.
Pursuant to the terms of Section 6.02(e) of the Operating Agreement, and in
connection with the refinancing of the property owned by the LLC, the redemption
of a 49% interest in the LLC, held by Xxxxxxx X. Xxxxxx, and the reorganization
of the LLC pursuant to the terms of an Amended and Restated Operating Agreement,
I hereby tender my resignation as a Manager, such resignation to be effective on
or about March 28, 2001, immediately prior to the execution of the Amended and
Restated Operating Agreement. I hereby acknowledge that such resignation will
also effectuate my withdrawal as a party to the Operating Agreement.
Very truly yours,
Xxxxxxx Xxxxxx
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EXHIBIT D-2
The Cosmopolitan at Xxxxx Park, LLC
c/o Historic Preservation Properties 1989 Limited Partnership
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxx
Re: Resignation as Manager
Gentlemen:
I have served as a Manager of the Cosmopolitan at Xxxxx Park, LLC (the
"LLC"), under the terms of the Operating Agreement of the LLC dated as of March
15, 1996, but became inactive in that role when I left the employment of
Claremont Corporation. Pursuant to the terms of Section 6.02(e) of the Operating
Agreement, I hereby tender my resignation as a Manager, such resignation to be
retroactively effective to the date that I left the employment of Claremont
Corporation. I hereby acknowledge that such resignation will also effectuate my
withdrawal as a party to the Operating Agreement.
Very truly yours,
Xxxxxxx X. Xxxxx, Xx.
