UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 14)*
McNeil Real Estate Fund XI, Ltd.
(Name of Issuer)
Limited Partnership Units
(Title of Class of Securities)
582568 30 9
(CUSIP Number)
Keith L. Schaitkin, Esq.
Gordon Altman Weitzen Shalov & Wein LLP
114 West 47th Street, 20th Floor
New York, New York 10036
(212) 626-0800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 7, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box //.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person'sinitial filing on this form with respect to the subject class of
securities, andfor any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 582568 30 9
1 NAME OF REPORTING PERSON
High River Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /x/ (1)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH:
7 SOLE VOTING POWER
16,418.67 Units (2)
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
16,418.67 Units (2)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,418.67 Units (2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.27%
14 TYPE OF REPORTING PERSON*
PN
- ---------------
(1) See disclaimer in Item 5 below.
(2) As described in Item 4 below under the caption Voting and Standstill
Agreement, the Reporting Persons have entered into certain voting agreements,
and granted a proxy to certain officers of McNeil Investors, Inc., with respect
to these units.
<PAGE>
SCHEDULE 13D
CUSIP No. 582568 30 9
1 NAME OF REPORTING PERSON
Riverdale LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /x/ (1)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
16,418.67 Units (2)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
16,418.67 Units (2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,418.67 Units (2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.27%
14 TYPE OF REPORTING PERSON*
OO
- ---------------
(1) See disclaimer in Item 5 below.
(2) As described in Item 4 below under the caption Voting and Standstill
Agreement, the Reporting Persons have entered into certain voting agreements,
and granted a proxy to certain officers of McNeil Investors, Inc., with respect
to these units.
<PAGE>
SCHEDULE 13D
CUSIP No. 582568 30 9
1 NAME OF REPORTING PERSON
Carl C. Icahn
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /x/ (1)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
18,621.67 Units (2)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
18,621.67 Units (2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,621.67 Units (2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.65%
14 TYPE OF REPORTING PERSON*
IN
- ---------------
(1) See disclaimer in Item 5 below.
(2) As described in Item 4 below under the caption Voting and Standstill
Agreement, the Reporting Persons have entered into certain voting agreements,
and granted a proxy to certain officers of McNeil Investors, Inc., with respect
to these units.
<PAGE>
SCHEDULE 13D
CUSIP No. 582568 30 9
1 NAME OF REPORTING PERSON
Unicorn Associates Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /x/ (1)
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) //
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
2,203 Units (2)
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
2,203 Units (2)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,203 Units (2)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* //
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.38%
14 TYPE OF REPORTING PERSON*
CO
- ---------------
(1) See disclaimer in Item 5 below.
(2) As described in Item 4 below under the caption Voting and Standstill
Agreement, the Reporting Persons have entered into certain voting agreements,
and granted a proxy to certain officers of McNeil Investors, Inc., with respect
to these units.
<PAGE>
AMENDMENT NO. 13 TO SCHEDULE 13D
This statement ("Statement") constitutes Amendment No. 13 to the
Schedule 13D filed with the Securities and Exchange Commission (the
"Commission") on November 13, 1995, as amended to date (the "Initial Filing").
Unless otherwise indicated capitalized terms used herein but not defined shall
have the meanings ascribed to them in the Initial Filing.
This Statement hereby amends the items identified below, or the
particular paragraphs of such items which are identified below.
Item 4. Purpose of Transaction
Item 4 is hereby amended to add the following:
On December 7, 1999, High River Limited Partnership ("High River"),
Riverdale LLC ("Riverdale"), Carl C. Icahn ("Mr. Icahn") and Longacre Corp.
("Longacre" and together with High River, Riverdale and Mr. Icahn, the "Icahn
Parties") entered into a settlement agreement (the "Settlement Agreement") and a
voting agreement (the "Voting and Standstill Agreement") with the McNeil
Partnerships (as defined below), McNeil Partners, L.P. (the "General Partner"),
McNeil Investors, Inc. ("McNeil Investors"), McNeil Real Estate Management, Inc.
("McREMI"), Robert A. McNeil and Carole J. McNeil (collectively, the "McNeil
Parties"), in connection with the settlement of litigation brought by High
River, Unicorn and Longacre against the General Partner, McNeil Investors,
McREMI, Robert A. McNeil and Carole J. McNeil.
As used herein, "McNeil Partnerships" means McNeil Real Estate Fund IX,
Ltd., McNeil Real Estate Fund X, Ltd., McNeil Real Estate Fund XI, Ltd., McNeil
Real Estate Fund XII, Ltd., McNeil Real Estate Fund XIV, Ltd., McNeil Real
Estate Fund XV, Ltd., McNeil Real Estate Fund XX, L.P., McNeil Real Estate Fund
XXI, L.P., McNeil Real Estate Fund XXII, L.P., McNeil Real Estate Fund XXIII,
L.P., McNeil Real Estate Fund XXIV, L.P., McNeil Real Estate Fund XXV, L.P.,
McNeil Real Estate Fund XXVI, L.P., McNeil Real Estate Fund XXVII, L.P., Hearth
Hollow Associates, L.P., McNeil Midwest Properties I, L.P., Regency North
Associates, L.P., Fairfax Associates II, Ltd. and McNeil Summerhill I, L.P.
Settlement Agreement
The Settlement Agreement settles and disposes of all claims, demands
and causes of action existing as of December 7, 1999 and arising out of,
connected with or incidental to the dealings between the parties to the
Settlement Agreement, including all claims, demands and causes of action
reflected in the action Schofield et al. v. McNeil Partners, L.P. et al. (the
"Schofield litigation") or the action High River Limited Partnership et al. v.
McNeil Partners, L.P. et al. (the "High River litigation"), as well as all prior
disputes arising out of events in the years preceding and leading up to the
execution of the Master Agreement (the "Master Agreement") entered into on June
24, 1999 among the McNeil Partnerships, the General Partner, McNeil Investors,
McREMI, McNeil Summerhill, Inc., Robert A. McNeil and WXI/McN Realty L.L.C., an
affiliate of Whitehall Street Real Estate Limited Partnership XI ("WXI/McN
Realty"). The Master Agreement was filed as an Exhibit to the Partnership's
Current Report on Form 8-K, dated June 29, 1999. The Schofield litigation
referred to above is described in
<PAGE>
more detail in Section 8 of the Offer to Purchase included as an Exhibit to the
Schedule 14D-1 Tender Offer Statement filed by High River and Mr. Icahn on
September 20, 1996. The High River litigation is an action filed on July 23,
1999 by High River, Unicorn and Longacre in the Supreme Court of the State of
New York, New York County, against the General Partner, McNeil Investors,
McRemi, Robert A. McNeil and Carole J. McNeil alleging, among other things, that
the defendants improperly interfered with tender offers made by High River for
limited partner units in the Partnership and improperly excluded High River from
participating in the auction process for the sale of the McNeil Partnerships.
The High River litigation also contains allegations against the defendants based
upon the plaintiffs' status as opt-outs from the settlement of the Schofield
Litigation. On July 30, 1999 defendants filed an answer to the complaint in the
High River litigation denying the material allegations in the complaint and
asserting several affirmative defenses. Other than as described below, the terms
of the Settlement Agreement are subject to a confidentiality agreement among the
McNeil Parties and the Icahn Parties.
On December 7, 1999, concurrently with the execution of the Settlement
Agreement, the Icahn Parties dismissed, with prejudice, as to all parties, with
each party bearing its own costs and attorneys' fees, the High River litigation
as well as any appeal of the Final Order and Judgment in the Schofield
litigation.
In consideration of, among other things, the dismissal of the High
River litigation and any appeal of the Final Order and Judgment in the Schofield
litigation, the mutual general releases and covenant not to sue described below,
McNeil Partners, McREMI, McNeil Investors, Robert A. McNeil and Carole J. McNeil
will make a cash settlement payment to High River at the closing of the
transactions contemplated by the Master Agreement, provided that the Settlement
Agreement has not been terminated.
The McNeil Partnerships and their subsidiaries have no liability or
obligation with respect to the settlement payment. Moreover, Robert A. McNeil
and Carole J. McNeil have agreed that notwithstanding that they may be entitled
to indemnification pursuant to the provisions of the limited partnership
agreements governing the McNeil Partnerships, neither they, nor their
affiliates, will seek or accept from any McNeil Partnership, or any subsidiary
corporation or subsidiary partnership of a McNeil Partnership, payment or
reimbursement of any portion of the settlement payment or related legal fees.
The Settlement Agreement provides for mutual general releases by the
Icahn Parties, on the one hand, and by the McNeil Parties and WXI/McN Realty, on
the other hand. Each of the Icahn Parties, on the one hand, and each of the
McNeil Parties and WXI/McN Realty, on the other hand, also has agreed not to
initiate, file or pursue any action, claim, suit or proceeding against the other
that concerns any of the matters which are the subject of the releases. The
releases and covenant not to sue also apply to the respective predecessors,
successors, present and former affiliates, subsidiaries, parents, assigns,
officers, directors, equity holders, partners, members, controlling persons,
employees, attorneys, financial advisors, investment bankers and agents of the
Icahn Parties, the McNeil Parties and, with some exceptions, WXI/McN Realty.
<PAGE>
The Settlement Agreement terminates in its entirety on the date which
is the earliest to occur of (1) June 30, 2000, if the closing of the transaction
contemplated by the Master Agreement has not occurred on or prior to June 30,
2000; (2) the termination of the Master Agreement in its entirety; and (3) the
termination of the Master Agreement with respect to the last participating
McNeil Partnership.
The Settlement Agreement does not constitute an admission of damages,
wrongdoing or liability by any party.
Voting and Standstill Agreement
On December 7, 1999, in consideration of the McNeil Parties and the
Icahn Parties executing and delivering the Settlement Agreement, the McNeil
Parties and the Icahn Parties also entered into a Voting Agreement (the "Voting
and Standstill Agreement") with respect to the limited partner units
beneficially owned by the Icahn Parties in the McNeil Partnerships.
Mr. Icahn and his affiliates agreed in the Voting and Standstill
Agreement to vote all of the limited partner units beneficially owned and held
of record by them in any of the McNeil Partnerships (and granted certain
officers of McNeil Investors an irrevocable proxy to vote such limited partner
units) for the merger of such McNeil Partnership contemplated by the Master
Agreement and for certain other related matters with respect to such McNeil
Partnerships. Mr. Icahn and his affiliates also agreed in the Voting and
Standstill Agreement to direct the holders of record of any limited partner
units beneficially owned by them but not held of record by them in any of the
McNeil Partnerships to vote those limited partner units for the merger of such
McNeil Partnership contemplated by the Master Agreement and for certain other
related matters with respect to such McNeil Partnership.
The Voting and Standstill Agreement also includes a standstill
provision and a no solicitation provision pursuant to which each of the Icahn
Parties, its affiliates and its subsidiaries have agreed to certain restrictions
on their actions with respect to the McNeil Partnerships and related parties.
The standstill provision and no solicitation provision automatically terminate
with respect to all of the McNeil Partnerships on December 7, 2002, and
terminate with respect to particular McNeil Partnerships under certain other
circumstances, including (1) automatic termination if that McNeil Partnership
becomes an "excluded McNeil Partnership" pursuant to the Master Agreement; and
(2) in the case of any of McNeil Partnerships IX, X, XI, XIV, XV, XX, XXIV, XXV,
XXVI and XXVII, termination at the option of the Icahn Parties if the per unit
aggregate amount payable or estimated to be payable with respect to limited
partner units in that McNeil Partnership is reduced below a specified amount.
The Voting and Standstill Agreement terminates in its entirety on the
date which is the earliest to occur of (1) June 30, 2000, if the closing of the
transaction contemplated by the Master Agreement has not occurred on or prior to
June 30, 2000; (2) the termination of the Master Agreement in its entirety; and
(3) the termination of the Master Agreement with respect to the last
participating McNeil Partnership.
The foregoing description of the Voting and Standstill Agreement is a
summary only and is qualified in its entirety by
<PAGE>
reference to the Voting and Standstill Agreement, which is filed as an exhibit
hereto and which is incorporated by reference herein.
Item 5. Interest in Securities of the Issuer.
Paragraphs (a) - (b) of this Item are hereby amended to read in their
entirety as follows:
(a) - (b) The 18,621.67 Units which are listed above as being
beneficially owned by the Reporting Persons consist of 16,418.67 Units directly
beneficially owned by High River and 2,203 Units directly beneficially owned by
Unicorn. Such Units represent approximately 11.65%, 10.27% and 1.38%,
respectively, of the outstanding Units, based upon the Partnership's most recent
Form 10-Q. Carl C. Icahn is the controlling member of Riverdale (the general
partner of High River) and indirectly beneficially owns all of the issued and
outstanding shares of capital stock of Unicorn. Mr. Icahn indirectly
beneficially owns all of the Units directly beneficially owned by High River and
Unicorn. Riverdale indirectly beneficially owns all of the Units directly
beneficially owned by High River.
Neither the filing of this Amendment nor its contents shall be deemed an
admission that the Reporting Persons are part of a "group" with the McNeil
Parties (as defined in Item 4) as a result of entering into the Settlement
Agreement or the Voting and Standstill Agreement described in Item 4. The
Reporting Persons expressly disclaim formation of a "group" with the McNeil
Parties and expressly disclaim beneficial ownership of any Units owned by the
McNeil Parties.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer
Item 6 is hereby amended to add the following:
The disclosure set forth under Item 4 above is hereby
incorporated herein by reference.
Item 7. Material to be filed as Exhibits
Exhibit 1 Voting Agreement, dated as of December 7, 1999
by and among McNeil Partners, L.P., a Delaware
limited partnership in its own capacity and on
behalf of each of the McNeil Partnerships
(other than Regency North Associates, L.P.,
Fairfax Associates II, Ltd., and McNeil
Summerhill I, L.P.), Regency North Associates,
L.P., Fairfax Associates II, Ltd., McNeil
Summerhill I, L.P., McNeil Real Estate
Management, Inc., a Delaware corporation,
McNeil Investors, Inc., a Delaware
corporation, Robert A. McNeil, Carole J.
McNeil, High River Limited Partnership, a
Delaware limited partnership, Riverdale LLC, a
New York limited liability company, Unicorn
Associates Corporation, a New York
corporation, Longacre Corp., a Delaware
corporation, and Carl C. Icahn.
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statements is true, complete and
correct.
Dated: December 9, 1999
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale LLC
its General Partner
By: /s/ Edward Mattner
Edward Mattner
Title: Manager
RIVERDALE LLC
By: /s/ Edward Mattner
Edward Mattner
Title: Manager
UNICORN ASSOCIATES CORPORATION
By: /s/ Edward Mattner
Edward Mattner
Title: President
/s/ Theodore Altman
Carl C. Icahn
By: Theodore Altman as
Attorney-in-fact
[Signature Page for Amendment No. 14 to McNeil Real Estate Fund
XI, Ltd. Schedule 13D]
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of December 7,
1999, by and among McNeil Partners, L.P., a Delaware limited partnership
("MPLP") in its own capacity and on behalf of each of the McNeil Partnerships
(other than Regency North Associates, L.P., Fairfax Associates II, Ltd. and
McNeil Summerhill I, L.P.), Regency North Associates, L.P. ("Regency"), Fairfax
Associates II, Ltd. ("Fairfax"), McNeil Summerhill I, L.P. ("Summerhill"),
McNeil Real Estate Management, Inc., a Delaware corporation ("McREMI"), McNeil
Investors, Inc., a Delaware corporation ("MII"), Robert A. McNeil ("RAM"),
Carole J. McNeil ("CJM" and, together with RAM, the "McNeils"), High River
Limited Partnership, a Delaware limited partnership ("High River"), Riverdale
LLC, a New York limited liability company ("Riverdale"), Unicorn Associates
Corporation, a New York corporation ("Unicorn"), Longacre Corp., a Delaware
corporation ("Longacre"), and Carl C. Icahn ("CCI" and, together with High
River, Riverdale, Unicorn and Longacre, the "Securityholders" and, each
individually, a "Securityholder"). (MPLP, the McNeil Partnerships, McREMI, MII
and the McNeils are hereinafter collectively referred to as the "McNeil Parties"
and, each individually, as a "McNeil Party.")
W I T N E S S E T H:
WHEREAS, on July 8, 1999, a Final Order and Judgment was
entered, pursuant to a settlement, in the consolidated class and derivative
action entitled, Schofield, et al. v. McNeil Partners, L.P., et al., Case No.
BC133799 (hereinafter, the "Class Action");
WHEREAS, the Securityholders opted out of the Class Action
settlement and on July 23, 1999 filed a separate action entitled, High River
Limited Partnership, et al. v. McNeil Partners, L.P., et al., Index No.
99-603526, in the Supreme Court of the State of New York, County of New York,
alleging their individual claims (hereinafter, the "Individual Action") and as
of the date hereof, the Individual Action is pending in the Supreme Court of the
State of New York, County of New York;
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, the Securityholders and the McNeil Parties are settling the
Individ ual Action by entering into a Settlement Agreement (the "Settlement
Agreement");
WHEREAS, WXI/McN Realty, L.L.C. (the "Company"), the McNeil
Partnerships, MPLP, MII, McREMI, McNeil Summerhill, Inc. and RAM have
1
<PAGE>
entered into a Master Agreement, dated as of June 24, 1999 (as the same may be
amended from time to time, the "Master Agreement"), pursuant to which the Com
pany will acquire the McNeil Partnerships and the assets of McREMI on the terms
and subject to the conditions set forth in the Master Agreement.
NOW, THEREFORE, in consideration of the Securityholders and
the McNeil Parties executing and delivering the Settlement Agreement, and in
consider ation of the foregoing and the representations, warranties, covenants
and agreements set forth below, the parties to this Agreement, intending to be
legally bound hereby, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person shall mean another Person that
directly or indirectly controls, is controlled by, or is under common control
with, such first Person, where "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
written or verbal agreement, as trustee or executor, or otherwise.
"Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agree ment, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" as within the
meaning of Section 13(d)(3) of the Exchange Act.
"Business Day" means any day excluding: Saturday, Sunday and
any day which is in the City of New York a legal holiday or a day upon which
banking institutions in the City of New York are required or authorized by law
or other governmental action to close.
2
<PAGE>
"CGCL" shall mean the General Corporation Law of the State of
California.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Limited Partnership Units" shall mean units of limited
partnership interest.
"Listed McNeil Partnerships" means McNeil Real Estate Fund IX,
Ltd., McNeil Real Estate Fund X, Ltd., McNeil Real Estate Fund XI, Ltd., McNeil
Real Estate Fund XIV, Ltd., McNeil Real Estate Fund XV, Ltd., McNeil Real Estate
Fund XX, L.P., McNeil Real Estate Fund XXIV, L.P., McNeil Real Estate Fund XXV,
L.P., McNeil Real Estate Fund XXVI, L.P. and McNeil Real Estate Fund XXVII, L.P.
"Minimum Amount" shall mean, with respect to a class of LP
Interests in a Listed McNeil Partnership, the amount set forth with respect to
such class of LP Interests opposite the name of such Listed McNeil Partnership
under the column heading "Minimum Amount" on Annex C hereto.
"Person" shall mean an individual, corporation, partnership,
limited partnership, limited liability company, syndicate, trust, association,
unincorporated organization, governmental entity, political subdivision, or an
agency or instrumen tality of a governmental entity.
"Per Unit Aggregate Amount" shall mean, with respect to a
class of LP Interests in a McNeil Partnership, an amount equal to the sum of (i)
the per unit merger consideration for an LP Interest in such class and (ii) the
applicable portion of the Excess Cash Balance of such McNeil Partnership to be
distributed to an LP Interest in such class.
"Subsidiary" of a specified Person shall mean an Affiliate
controlled by such Person directly, or indirectly through one or more
intermediaries, where "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by written or verbal
agreement, as trustee or executor, or otherwise.
3
<PAGE>
Section 1.2 Definitions from Master Agreement. Capitalized
terms used but not otherwise defined herein and which are defined in the Master
Agree ment shall have the meanings ascribed to them in the Master Agreement (in
each case, as in effect on the date hereof, except as expressly provided to the
contrary herein or in the Settlement Agreement).
Section 1.3 Interpretation.
(a) The parties have participated jointly in the
negotiation and drafting of this Agreement. Consequently, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
(b) When a reference is made in this Agreement to a
section, article, paragraph, clause, annex or exhibit, such reference shall be
to a reference to this Agreement unless otherwise clearly indicated to the
contrary. The descriptive article and section headings herein are intended for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limita tion." The words "hereof," "herein,"
"herewith" and "hereto" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement. The meaning assigned to each term used
in this Agreement shall be equally applicable to both the singular and the
plural forms of such term, and words denoting any gender shall include all
genders. Where a word or phrase is defined herein, each of its other grammatical
forms shall have a corresponding meaning. Any reference in this Agreement to an
Article or Section of the Master Agreement shall apply to said Article or
Section, as the case may be, as in effect on the date hereof or any similar or
comparable provi sion of the Master Agreement if such Article or Section, as the
case may be, is amended from time to time.
4
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SECURITYHOLDERS
Each Securityholder jointly and severally represents and
warrants to each McNeil Party as follows:
Section 2.1 Oral Representations, Mistake of Fact or Law.
(a) No party (nor any director, officer, agent,
partner, equity holder, member, controlling person, employee, representative, or
attorney of or for any party), has made any statement or representation or
failed to make any statement or representation to any Securityholder regarding
any fact relied upon in entering into this Agreement, and each Securityholder
does not rely upon any statement, represen tation, omission or promise of any
other party (or of any director, officer, agent, partner, equity holder, member,
controlling person, employee, representative, or attorney for any other party),
in executing this Agreement, except as expressly stated in this Agreement.
(b) In entering into this Agreement, each
Securityholder assumes the risk of any misrepresentation, concealment or
mistake, other than written misrepresentations made to such Securityholder by
any other party or parties in this Agreement. If any Securityholder should
subsequently discover that any fact relied upon by it in entering into this
Agreement was untrue, or that any fact was concealed from it, or that its
understanding of the facts or of the law was incorrect (except, in each such
case, for any matter expressly misrepresented in writing in this Agreement to
such Securityholder by any other party or parties), such Securityholder shall
not be entitled to any relief in connection therewith including, without
limiting the generality of the foregoing, any alleged right or claim to set
aside or rescind this Agreement.
Section 2.2 Ownership of Securities.
(a) Such Securityholder is the record and Beneficial
Owner of the Limited Partnership Units in the McNeil Partnerships set forth on
Annex A hereto opposite the name of such Securityholder (such Limited
Partnership Units, collectively, the "Existing Securities"). On the date hereof,
the Existing Securities constitute all of the Limited Partnership Units in the
McNeil Partnerships owned of record or Beneficially Owned by such
Securityholder. Except as set forth on Annex A hereto, such Securityholder has
sole voting power and sole power to enter into the
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agreements set forth in Article IV hereof, sole power of disposition, sole power
of conversion, sole power to demand dissenters' or appraisal rights (if any) and
sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Existing Securities of such Securityholder with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Except as set forth on Annex A hereto, no
Affiliate, Subsidiary, officer, director, partner, member, equity holder or
controlling person of such Securityholder Beneficially Owns any Limited
Partnership Units in any of the McNeil Partnerships.
Section 2.3 Power; Binding Agreement. Such Securityholder
has the legal capacity, power and authority to enter into and perform all of
such Securityholder's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Securityholder will not violate any
other agreement to which such Securityholder is a party including, without
limitation, any voting agreement, proxy arrangement, pledge agreement,
shareholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by such Securityholder and constitutes a valid and
binding agreement of such Securityholder, enforceable against such
Securityholder in accordance with its terms. There is no beneficiary or holder
of a voting trust certificate or other interest of any trust of which such
Securityholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Securityholder of the
transactions contemplated by this Agreement.
Section 2.4 No Conflicts. No filing with, and no permit,
authoriza tion, consent or approval of, any Governmental Entity for the
execution of this Agreement by such Securityholder and the consummation by such
Securityholder of the transactions contemplated by this Agreement, and none of
the execution and delivery of this Agreement by such Securityholder, the
consummation by such Securityholder of the transactions contemplated by this
Agreement or compliance by such Securityholder with any of the provisions of
this Agreement shall (i) conflict with or result in any breach of any
organizational documents of any Securityholder, (ii) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination, cancella tion,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obliga tion of any kind to which any Securityholder is a party or by which
any
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Securityholder or any of its properties or assets may be bound, or (iii) violate
any order, writ, injunction, decree, judgment, order, statute, arbitration
award, rule or regulation applicable to any Securityholder or any of its
properties or assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE McNEIL PARTIES
Each of the McNeil Parties jointly and severally represents
and warrants to the Securityholders as follows:
Section 3.1 Power; Binding Agreement. Each of the McNeil
Parties has the legal capacity, power and authority to enter into and perform
all of such party's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such McNeil Party will not violate any
other agreement to which such McNeil Party is a party including, without
limitation, any voting agreement, proxy arrangement, pledge agreement,
shareholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by such McNeil Party and constitutes a valid and binding
agreement of such McNeil Party enforceable against such McNeil Party in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such McNeil Party is a
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such McNeil Party of the transactions
contemplated by this Agreement.
Section 3.2 No Conflicts. No filing with, and no permit,
authoriza tion, consent or approval of, any Governmental Entity for the
execution of this Agreement by such McNeil Party and the consummation by such
McNeil Party of the transactions contemplated by this Agreement, and none of the
execution and delivery of this Agreement by such McNeil Party the consummation
by such McNeil Party of the transactions contemplated by this Agreement or
compliance by such McNeil Party with any of the provisions of this Agreement
shall (i) conflict with or result in any breach of any organizational documents
of any McNeil Party (ii) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
any McNeil Party is a party or by which any McNeil Party or any of its
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properties or assets may be bound, or (iii) violate any order, writ, injunction,
decree, judgment, order, statute, arbitration award, rule or regulation
applicable to any McNeil Party or any of its properties or assets.
Section 3.3 Oral Representations, Mistake of Fact or Law.
(a) No party (nor any director, officer, agent,
partner, equity holder, member, controlling person, employee, representative, or
attorney of or for any party), has made any statement or representation or
failed to make any statement or representation to any McNeil Party regarding any
fact relied upon in entering into this Agreement, and each McNeil Party does not
rely upon any statement, representa tion, omission or promise of any other party
(or of any director, officer, agent, partner, equity holder, member, controlling
person, employee, representative, or attorney for any other party), in executing
this Agreement, except as expressly stated in this Agreement.
(b) In entering into this Agreement, each McNeil
Party assumes the risk of any misrepresentation, concealment or mistake, other
than written misrepresentations made to such McNeil Party by any other party or
parties in this Agreement. If any McNeil Party should subsequently discover that
any fact relied upon by it in entering into this Agreement was untrue, or that
any fact was concealed from it, or that its understanding of the facts or of the
law was incorrect (except, in each such case, for any matter expressly
misrepresented in writing in this Agreement to such McNeil Party by any other
party or parties), such McNeil Party shall not be entitled to any relief in
connection therewith including, without limiting the generality of the
foregoing, any alleged right or claim to set aside or rescind this Agreement.
ARTICLE IV
VOTING AGREEMENT, GRANT OF IRREVOCABLE PROXY
Section 4.1 Voting Agreement. Each Securityholder shall, at
any meeting of the limited partners of any McNeil Partnership, however such
meeting is called and regardless of the purpose for which such meeting is
called, or in connec tion with any written consent of the limited partners of
any McNeil Partnership, vote all of the Limited Partnership Units in such McNeil
Partnership that are held of record by such Securityholder: (i) in favor of the
approval of the Master Agreement, the terms thereof and the transactions
contemplated thereby, including without
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limitation, the Merger in respect of such McNeil Partnership, the MPLP Contribu
tions with respect to such McNeil Partnership, the appointment of the applicable
New GP LLC as the successor general partner of such McNeil Partnership, the
other transactions contemplated by the Master Agreement with respect to such
McNeil Partnership and any other transactions contemplated by the Master
Agreement or the other Transaction Documents which require approval of the
limited partners of such McNeil Partnership; and (ii) against any Acquisition
Proposal and against any action or written or verbal agreement that would
impede, frustrate, prevent or nullify this Agreement, the Settlement Agreement
or the Master Agreement, or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of Sellers under
the Master Agreement or which would result in any one or more of the conditions
set forth in Sections 8.1, 8.2 and 8.3 of the Master Agree ment not being
satisfied. Notwithstanding the foregoing, it is understood that the obligation
of the Securityholders with respect to the voting of 100,000 Limited Partnership
Units in McNeil Real Estate Fund XXVII, L.P. ("Fund XXVII") Benefi cially Owned
by the Securityholder but held of record by the Resolution Trust Corporation
("RTC") or the Federal Deposit Insurance Corporation ("FDIC") shall be as set
forth in the proviso at the end of Section 4.3(a) hereof.
Section 4.2 No Inconsistent Arrangements. Each Securityholder
hereby covenants and agrees that it shall not, and it shall cause its Affiliates
and Subsidiaries not to, other than pursuant to the transactions contemplated by
the Master Agreement (i) transfer (which term shall include, without limitation,
any sale, gift, pledge, assignment, hypothecation, exchange or other
disposition), or consent to any transfer of, any or all of the Limited
Partnership Units Beneficially Owned by such Securityholder or its Affiliates or
Subsidiaries, in any of the McNeil Partner ships or any interest therein, (ii)
enter into any contract, option or other written or verbal agreement or
understanding with respect to any transfer of any or all of such Limited
Partnership Units or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to such Limited
Partner ship Units, (iv) deposit such Limited Partnership Units into a voting
trust or enter into a voting agreement or arrangement with respect to such
Limited Partnership Units, or (v) take any other action that would in any way
restrict, limit or interfere with the performance of its obligations under this
Agreement, the Settlement Agreement or any of the transactions contemplated by
this Agreement, the Settlement Agreement, the Master Agreement or the other
Transaction Documents.
Section 4.3 Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) Each Securityholder hereby irrevocably grants to,
and appoints, RAM, Ron K. Taylor and Barbara Smith, each in his or her capacity
as an officer of MII, and any individual who shall hereafter succeed to any such
office of MII, and each of them individually, such Securityholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Securityholder to vote all of the Limited Partnership Units
Beneficially Owned by such Securityholder, its Affiliates and Subsidiaries in
any of the McNeil Partner ships: (A) in favor of the approval of the Master
Agreement, the terms thereof and the transactions contemplated thereby,
including without limitation, the Merger in respect of such McNeil Partnership,
the MPLP Contributions with respect to such McNeil Partnership, the appointment
of the applicable New GP LLC as the successor general partner of such McNeil
Partnership, the other transactions contemplated by the Master Agreement with
respect to such McNeil Partnership and any other transactions contemplated by
the Master Agreement or the other Transaction Docu ments which require approval
of the limited partners of such McNeil Partnership; and (B) against any
Acquisition Proposal and against any action or written or verbal agreement that
would impede, frustrate, prevent or nullify this Agreement, the Settlement
Agreement or the Master Agreement, or result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of
Sellers under the Master Agreement or which would result in any one or more of
the conditions set forth in Sections 8.1, 8.2 and 8.3 of the Master Agreement
not being satisfied; provided however, it is understood that no proxy is granted
with respect to Limited Partnership Units in Fund XXVII Beneficially Owned by
the Securityholders but held of record by the RTC or the FDIC but rather, such
Limited Partnership Units shall be voted by RTC or FDIC at the direction of the
applicable Securityholder and the applicable Securityholder shall direct RTC or
FDIC to vote such Limited Partner ship Units in such manner, but such
Securityholder shall have no liability for RTC's or FDIC's failure to vote such
Limited Partnership Units in the manner directed by the applicable
Securityholder.
(b) Each Securityholder hereby jointly and severally
represents and warrants to each McNeil Party that any proxies heretofore given
by any Person in respect of any or all of the Limited Partnership Units
Beneficially Owned by such Securityholder or its Affiliates or Subsidiaries in
any of the McNeil Partner ships are not irrevocable, and that any such proxies
are hereby revoked.
(c) Each Securityholder hereby affirms that the proxy
set forth in this Section 4.3 is given to secure the performance of the duties
of such Securityholder under this Agreement, in accordance with Section 705(e)
of the CGCL. Each Securityholder hereby further affirms that the proxy is
coupled with an
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interest and may under no circumstances be revoked. Each Securityholder hereby
ratifies and confirms any and all actions that such proxy may lawfully do or
cause to be done by virtue hereof. Such proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 705 of the CGCL.
Section 4.4 Stop Transfer. Each Securityholder shall not
request that the McNeil Partnerships register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of its
Existing Securities, unless such transfer is made in compliance with this
Agreement. In the event of any dividend or distribution consisting of
securities, or any change in the capital structure of any McNeil Partnership by
reason of any non-cash dividend, split-up, recapitaliza tion, combination,
exchange of securities or the like, the term "Existing Securities" shall refer
to and include the Existing Securities as well as all such dividends and
distributions of securities and any securities into which or for which any or
all of the Existing Securities may be changed or exchanged.
Section 4.5 Dissenters' Rights. By virtue of its execution of
this Agreement, each Securityholder hereby irrevocably waives any and all rights
it may have to assert any dissenters' rights, appraisal rights or other similar
rights granted under the provisions of Article 7.6 of the California Revised
Limited Partnership Act or any similar or successor statute, law, rule or
regulation (collectively, the "Rights") with respect to the Merger in respect of
any McNeil Partnership, the MPLP Contribu tions with respect to any McNeil
Partnership, the appointment of the applicable New GP LLC as the successor
general partner of any McNeil Partnership, the other transactions contemplated
by the Master Agreement with respect to any McNeil Partnership and any other
transactions contemplated by the Master Agreement or the other Transaction
Documents.
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ARTICLE V
NO SOLICITATION; STANDSTILL
Each Securityholder agrees, for a period commencing as of the
date of this Agreement and ending on the third anniversary of the date of this
Agreement, as follows:
Section 5.1 No Solicitation. Each Securityholder hereby agrees
that neither such Securityholder nor any of its Affiliates or Subsidiaries shall
(and such Securityholder shall cause the officers, directors, partners, members,
equity holders, controlling persons, employees, representatives and agents of
such Securityholder, its Affiliates and Subsidiaries, including, but not limited
to, investment bankers, attorneys and accountants who are acting as agents or
representatives of any such Securityholder, Affiliate or Subsidiary, not to),
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any Person
(other than any McNeil Party or any of their representa tives) concerning any
Acquisition Proposal. Each Securityholder shall (and such Securityholder shall
cause the officers, directors, partners, members, equity holders, controlling
persons, employees, representatives and agents of such Securityholder, its
Affiliates and Subsidiaries, including, but not limited to, investment bankers,
attorneys and accountants who are acting as agents or representatives of any
such Securityholder, Affiliate or Subsidiary, to) immediately cease any existing
activities, discussions or negotiations with any Persons conducted heretofore
with respect to any Acquisition Proposal.
Section 5.2 Standstill. Each Securityholder agrees that neither
it nor any Person who is an Affiliate or Subsidiary of such Securityholder
shall, without the prior written consent of MPLP, (i) in any manner, acquire,
attempt to acquire or make an offer or seek to make an offer with respect to, or
a proposal to acquire, directly or indirectly, any securities or property of any
of the entities listed on Annex B hereto (collectively, the "McNeil Entities"),
(ii) propose to enter into, directly or indirectly, any merger or business
combination involving any of the McNeil Entities or to purchase, directly or
indirectly, any of the assets of any of the McNeil Entities, (iii) make, or in
any way participate, directly or indirectly, in any "solicitation" of "proxies"
(as such terms are used in the proxy rules of the Securities and Exchange
Commission) to vote, or seek to advise or influence any Person with respect to
the voting of any voting securities of any of the McNeil Entities, (iv) form,
join or otherwise participate in a "group" (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to any voting securities of the
McNeil Entities, (v)
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otherwise act, alone or in concert with others, to seek to control or influence
the management, Board of Directors of the corporate general partner of any of
the McNeil Entities or policies of any of the McNeil Entities, (vi) loan money
to, advise, assist or encourage any Person in connection with any of the actions
described in this sentence, or (vii) disclose any intention, plan or arrangement
inconsistent with the foregoing. Notwithstanding the foregoing, after the
Closing, (a) "McNeil Entity" shall mean: (i) any entity listed on Annex B hereto
that is not acquired, directly or indirectly, by the Company at the Closing, but
only so long as such entity is wholly-owned, directly or indirectly, by any one
or more of RAM, CJM, MPLP, McREMI or MII (provided, in the case of MPLP, McREMI
or MII, that such entity is wholly-owned, directly or indirectly, by RAM and/or
CJM) and (ii) WXI/MNL Real Estate, L.L.C. ("Real Estate, L.L.C."), but only so
long as there is no change in control of Real Estate, L.L.C. and (b) subject to
clause (a) above, the provisions of this Section 5.2 shall apply only to actions
taken or proposals made by any Securityholder or any Affiliate or Subsidiary
thereof, with respect to (1) Real Estate, L.L.C., the Company, each of their
respective Subsidiaries formed for the purpose of engaging in the transactions
contemplated by the Master Agreement, and entities in which one or more of the
McNeil Parties (or their Subsidiary partnerships or corporations) have a direct
or indirect interest immediately prior to the Closing and (2) assets in which
one or more of the McNeil Parties (or their Subsidiary partnerships or
corporations) have a direct or indirect interest immediately prior to the
Closing.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Survival.
(a) Except as provided by Article V and Sections
6.1(b), 6.1(c) and 6.1(d) hereof, the representations, warranties, covenants and
agreements of the parties contained in this Agreement shall remain in full force
and effect indefinitely.
(b) The rights and obligations of the parties hereto
contained in Articles IV and V of this Agreement with respect to a particular
McNeil Partnership (and each Subsidiary corporation and Subsidiary partnership
thereof) shall terminate if and when such McNeil Partnership becomes an Excluded
McNeil Partnership through the operation of Section 9.3 of the Master Agreement,
it being understood that within 3 Business Days after the date of any McNeil
Party's receipt or delivery of
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notice pursuant to such Section 9.3, such McNeil Party will deliver a copy of
such notice to the Securityholders.
(c) In the case of a Listed McNeil Partnership only,
the Securityholders shall have the right to terminate the rights and obligations
of the parties hereto contained in Articles IV and V of this Agreement with
respect to such Listed McNeil Partnership (and each Subsidiary corporation and
Subsidiary partner ship thereof) if the definitive Proxy Statement, any Proxy
Statement supplement or any press release announcing a reduction in the Per Unit
Aggregate Amount (or a reduction in the estimate thereof) payable with respect
to a class of LP Interests in such Listed McNeil Partnership provides that the
Per Unit Aggregate Amount payable (or estimated to be payable) with respect to
such class of LP Interests in such Listed McNeil Partnership is less than the
Minimum Amount with respect to such class of LP Interests in such Listed McNeil
Partnership. To terminate such rights and obligations pursuant to this
provision, the Securityholders shall deliver a notice to the McNeil Parties
within 10 Business Days after the date of the applicable definitive Proxy
Statement, or Proxy Statement supplement or the date a copy of such press
release is furnished to them pursuant to Section 6.1(f) hereof; failure to give
such notice within such time frame shall be deemed a waiver of the right to
terminate the rights and obligations of the parties hereto contained in Articles
IV and V of this Agreement with respect to such Listed McNeil Partnership
pursuant to this Section 6.1(c).
(d) The covenants and agreements contained in this
Agreement shall terminate in their entirety on the date which is the earliest to
occur of: (i) June 30, 2000, in the event that the Closing shall not have
occurred on or prior to June 30, 2000; (ii) the termination of the Master
Agreement pursuant to Section 9.1 thereof; and (iii) the termination of the
Master Agreement with respect to the last Participat ing McNeil Partnership
pursuant to Section 9.3 thereof.
(e) The parties hereto acknowledge and agree that the
termination of the rights and obligations of the parties hereto contained in
Articles IV and V of this Agreement with respect to a particular McNeil
Partnership shall in no way affect the rights or obligations of any party hereto
with respect to any other McNeil Partnership.
(f) MPLP hereby agrees that it will promptly issue a
press release and furnish a copy thereof to the Securityholders if, at any time
subsequent to the date of the definitive Proxy Statement with respect to a
Listed McNeil Partner ship, the Per Unit Aggregate Amount (or the estimate
thereof) payable with respect
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to a class of LP Interests in such Listed McNeil Partnership is reduced to an
amount less than the Minimum Amount with respect to such class of LP Interests
in such Listed McNeil Partnership.
Section 6.2 Specific Performance. Each Securityholder
recognizes and agrees that if for any reason any of the provisions of this
Agreement are not per formed by such Securityholder in accordance with their
specific terms or are other wise breached, immediate and irreparable harm or
injury would be caused to MPLP for which money damages would not be an adequate
remedy. Accordingly, each Securityholder agrees that, in addition to any other
available remedies, MPLP shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement without
the necessity of MPLP posting a bond or other form of security. In the event
that any action should be brought in equity to enforce the provisions of this
Agreement, each Securityholder agrees that it will not allege, and each
Securityholder hereby waives the defense, that there is an adequate remedy at
law.
Section 6.3 Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
delivered personally, sent by overnight courier (providing proof of delivery or
refusal of delivery) to the parties or sent by telecopy (providing confirmation
of transmission) at the following addresses or telecopy numbers (or at such
other address or telecopy number for a party as shall be specified by like
notice):
If to any Securityholder, to:
High River Limited Partnership
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attention: Carl C. Icahn
Telecopier No: (212) 750-5807
with copies to:
Gordon Altman Weitzen Shalov & Wein LLP
114 West 47th Street
New York, New York 10036
Attention: Theodore Altman
Telecopier No.: (212) 629-0799
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If to any McNeil Party, to:
McNeil Partners, L.P.
c/o Robert and Carole McNeil
229 Polhemus Avenue
Atherton, California 94027
Telecopier No.: (650) 323-0720
with copies to:
McNeil Partners, L.P.
c/o Robert and Carole McNeil
1001 California Street, #600
San Francisco, California 94018
Telecopier No.: (415) 441-2380
and:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: William P. Frank, Esq.
Telecopier No.: (212) 735-2000
All notices shall be deemed given only when actually received. The parties to
this Agreement agree that the provision of notice pursuant to this Section 6.3
shall constitute notice for service of any writ, process or summons in any suit,
action or other proceeding.
Section 6.4 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 6.5 Attorneys' Fees. If any action at law or equity,
including an action for declaratory relief, is brought to enforce or interpret
any provision of this
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Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and expenses from the other party, which fees and expenses shall
be in addition to any other relief which may be awarded.
Section 6.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCI PLES
OF CONFLICTS OF LAWS THEREOF.
Section 6.7 Entire Agreement; No Third Party Beneficiaries.
This Agreement, the Settlement Agreement and the Letter Agreement, dated as of
the date hereof among the parties hereto, constitute the entire agreement and
supersede all prior agreements and understandings, both written and verbal,
among the parties hereto or any of them with respect to the subject matter
hereof. This Agreement is not intended to confer upon any Person (other than the
parties to this Agreement and the McNeil Entities) any rights or remedies
whatsoever.
Section 6.8 Consent to Jurisdiction. Each of the parties hereto
irrevocably and unconditionally submits to the exclusive jurisdiction of the
court where the Individual Action was filed, in any action arising out of the
enforcement of this Agreement. In any such action, suit or other proceeding,
each of the parties hereto irrevocably and unconditionally waives and agrees not
to assert by way of motion, as a defense or otherwise any claims that it is not
subject to the jurisdiction of the above court, that such action or suit is
brought in an inconvenient forum or that the venue of such action, suit or other
proceeding is improper. Each of the parties hereto also agrees that any final
and unappealable judgment against a party hereto in connection with any such
action, suit or other proceeding shall be conclusive and binding on such party
and that such award or judgment may be enforced in any court of competent
jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment shall be conclusive evidence of the
fact and amount of such award or judgment.
Section 6.9 Assignment; Binding Agreement. Neither this
Agreement nor any of the rights, interests or obligations under this Agreement
shall be assigned \or delegated, in whole or in part, by operation of law or
otherwise by any of the parties without the prior written consent of the other
parties. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns. This Agreement shall inure to the benefit of,
and be enforceable by, the parties hereto and (if and to the extent the prior
written consent of the other parties hereto to such
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succession or assignment has been obtained pursuant to the first sentence of
this Section 6.9), their respective successors and assigns. Notwithstanding this
Section 6.9, after the Effective Time, this Agreement shall inure to the benefit
of, and be enforceable by, the Company and its Affiliates so long as the Company
and any such affiliate is an Affiliate of The Goldman Sachs Group, Inc.
Section 6.10 Amendment, Modification and Waiver. This Agreement
may not be amended, modified or waived except by an instrument or instruments in
writing signed and delivered on behalf of the party hereto against whom such
amendment, modification or waiver is sought to be entered.
Section 6.11 Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to the other parties hereto.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Voting Agreement as of the day and year first above written.
/s/ Robert A. McNeil
Robert A. McNeil
/s/ Carole J. McNeil
Carole J. McNeil
McNEIL PARTNERS, L.P.,
in its own capacity and on behalf of each of the
McNeil Partnerships (other than Regency
North, Fairfax and Summerhill)
By: McNeil Investors, Inc.,
its General Partner
By:/s/ Robert A. McNeil
Name: Robert A. McNeil
Title: Chairman of the Board
McNEIL INVESTORS, INC.
By:/s/ Robert A. McNeil
Name: Robert A. McNeil
Title: Chairman of the Board
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McNEIL REAL ESTATE MANAGEMENT, INC.
By:/s/ Robert A. McNeil
Name: Robert A. McNeil
Title: Co-Chairman of the Board
REGENCY NORTH ASSOCIATES, L.P.
By: /s/ Robert A. McNeil
Name: Robert A. McNeil
Title: General Partner
FAIRFAX ASSOCIATES II, LTD.
By: /s/ Robert A. McNeil
Name: Robert A. McNeil
Title: General Partner
McNEIL SUMMERHILL I, L.P.
By: McNeil Summerhill, Inc.,
its General Partner
By: /s/ Robert A. McNeil
Name: Robert A. McNeil
Title: Co-Chairman of the Board
20
<PAGE>
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale LLC,
its General Partner
By:/s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Manager
RIVERDALE LLC
By:/s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Manager
UNICORN ASSOCIATES CORPORATION
By:/s/ Edward E. Mattner
Name: Edward E. Mattner
Title: President
LONGACRE CORP.
By:/s/ Edward E. Mattner
Name: Edward E. Mattner
Title: President
/s/ Carl C. Icahn
Carl C. Icahn
21
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
ANNEX A
Number of Limited Partnership Units Beneficially Owned
Securityholder McNeil Partnership
Sole Shared Sole Shared
Voting Voting Dispositive Dispositive
Total Units Power Power Power Power
High River Limited Partnership McNeil Real Estate Fund IX, Ltd. 13,088 13,088 0 13,088 0
High River Limited Partnership McNeil Real Estate Fund X, Ltd. 9,539 9,539 0 9,539 0
High River Limited Partnership McNeil Real Estate Fund XI, Ltd. 16,418.67 16,418.67 0 16,418.67 0
High River Limited Partnership McNeil Real Estate Fund XIV, Ltd. 10,105 10,105 0 10,105 0
High River Limited Partnership McNeil Real Estate Fund XV, Ltd. 9,761 9,761 0 9,761 0
High River Limited Partnership McNeil Real Estate Fund XX, L.P. 5,084.938 5,084.938 0 5,084.938 0
High River Limited Partnership McNeil Real Estate Fund XXIV, L.P. 2,988 2,988 0 2,988 0
High River Limited Partnership McNeil Real Estate Fund XXV, L.P. 6,674,690 6,674,690 0 6,674,690 0
High River Limited Partnership McNeil Real Estate Fund XXVI, L.P. 810,457 810,457 0 810,457 0
High River Limited Partnership McNeil Real Estate Fund XXVII, L.P. 79,887 79,887 100,000 79,887 100,000
A-1
<PAGE>
Riverdale LLC McNeil Real Estate Fund IX, Ltd. 13,088 0 13,088 0 13,088
Riverdale LLC McNeil Real Estate Fund X, Ltd. 9,539 0 9,539 0 9,539
Riverdale LLC McNeil Real Estate Fund XI, Ltd. 16,418.67 0 16,418.67 0 16,418.67
Riverdale LLC McNeil Real Estate Fund XIV, Ltd. 10,105 0 10,105 0 10,105
Riverdale LLC McNeil Real Estate Fund XV, Ltd. 9,761 0 9,761 0 9,761
Riverdale LLC McNeil Real Estate Fund XX, L.P. 5,084.938 0 5,084.938 0 5,084.938
Riverdale LLC McNeil Real Estate Fund XXIV, L.P. 2,988 0 2,988 0 2,988
Riverdale LLC McNeil Real Estate Fund XXV, L.P. 6,674,690 0 6,674,690 0 6,674,690
Riverdale LLC McNeil Real Estate Fund XXVI, L.P. 810,457 810,457 0 810,457 0
Riverdale LLC McNeil Real Estate Fund XXVII, L.P. 179,887 79,887 100,000 79,887 100,000
A-2
<PAGE>
Carl C. Icahn McNeil Real Estate Fund IX, Ltd. 15,616 0 15,616 0 15,616
Carl C. Icahn McNeil Real Estate Fund X, Ltd. 11,836 0 11,836 0 11,836
Carl C. Icahn McNeil Real Estate Fund XI, Ltd. 18,621.67 0 18,621.67 0 18,621.67
Carl C. Icahn McNeil Real Estate Fund XIV, Ltd. 10,631 0 10,631 0 10,631
Carl C. Icahn McNeil Real Estate Fund XV, Ltd. 10,587 0 10,587 0 10,587
Carl C. Icahn McNeil Real Estate Fund XX, L.P. 6,486.372 0 6,486.372 0 6,486.372
Carl C. Icahn McNeil Real Estate Fund XXIV, L.P. 3,648 0 3,648 0 3,648
Carl C. Icahn McNeil Real Estate Fund XXV, L.P. 7,534,383 0 7,534,383 0 7,534,383
Carl C. Icahn McNeil Real Estate Fund XXVI, L.P. 886,960 0 886,960 0 886,960
Carl C. Icahn McNeil Real Estate Fund XXVII, L.P. 195,387 95,387 100,000 95,387 100,000
A-3
<PAGE>
Unicorn Associates Corporation McNeil Real Estate Fund IX, Ltd. 2,528 2,528 0 2,528 0
Unicorn Associates Corporation McNeil Real Estate Fund X, Ltd. 2,297 2,297 0 2,297 0
Unicorn Associates Corporation McNeil Real Estate Fund XI, Ltd. 2,203 2,203 0 2,203 0
Unicorn Associates Corporation McNeil Real Estate Fund XIV, Ltd. 526 526 0 526 0
Unicorn Associates Corporation McNeil Real Estate Fund XV, Ltd. 826 826 0 826 0
Unicorn Associates Corporation McNeil Real Estate Fund XX, L.P. 1,401.434 1,401.434 0 1,401.434 0
Unicorn Associates Corporation McNeil Real Estate Fund XXIV, L.P. 660 660 0 660 0
Unicorn Associates Corporation McNeil Real Estate Fund XXV, L.P. 859,693 859,693 0 859,693 0
Unicorn Associates Corporation McNeil Real Estate Fund XXVI, L.P. 76,503 76,503 0 76,503 0
Unicorn Associates Corporation McNeil Real Estate Fund XXVII, L.P. 15,500 15,500 0 15,500 0
Longacre Corp. McNeil Real Estate Fund XII, Ltd. 10 10 0 10 0
A-4
</TABLE>
<PAGE>
ANNEX B
McNeil Investors, Inc.
McNeil Real Estate Management, Inc.
McNeil Partners, L.P.
McNeil Summerhill, Inc.
McNeil Partnerships:
- --------------------
McNeil Real Estate Fund IX, Ltd. ("MREF IX")
McNeil Real Estate Fund X, Ltd. ("MREF X")
McNeil Real Estate Fund XI, Ltd. ("MREF XI")
McNeil Real Estate Fund XII, Ltd. ("MREF XII")
McNeil Real Estate Fund XIV, Ltd. ("MREF XIV")
McNeil Real Estate Fund XV, Ltd. ("MREF XV")
McNeil Real Estate Fund XX, L.P. ("MREF XX")
McNeil Real Estate Fund XXI, L.P. ("MREF XXI")
McNeil Real Estate Fund XXII, L.P. ("MREF XXII")
McNeil Real Estate Fund XXIII, L.P. ("MREF XXIII")
McNeil Real Estate Fund XXIV, L.P. ("MREF XXIV")
McNeil Real Estate Fund XXV, L.P. ("MREF XXV")
McNeil Real Estate Fund XXVI, L.P. ("MREF XXVI")
McNeil Real Estate Fund XXVII, L.P. ("MREF XXVII")
Fairfax Associates II, Ltd. ("Fairfax")
Hearth Hollow Associates, L.P. ("Hearth Hollow")
McNeil Midwest Properties I, L.P. ("Midwest Properties")
Regency North Associates, L.P. ("Regency North")
McNeil Summerhill I, L.P. ("Summerhill")
Subsidiary Corporations:
- -----------------------
McNeil Rolling Hills Fund IX Corp.
Cherry Hills Apartment Corp.
Forest Park IX Corp.
Lantern Tree Apartment Corp.
Meridian West Apartment Corp.
Rockborough Apartment Corp.
Williamsburg Fund IX Apartment Corp.
Briarwood Apartment Corp.
Coppermill Apartment Corp.
La Plaza Fund X Corp.
Orchard Apartment Corp.
Quail Meadows Apartment Corp.
Regency Apartment Corp. (Nevada)
Sandpiper Apartment Corp.
B-1
<PAGE>
Spanish Apartments Fund X Corp.
Gentle Gale Apartment Corp.
Villa Del Rio Apartment Corp.
McNeil Village Apartments XI Corp.
McNeil Rock Creek Fund XI Corp.
Buccaneer Village Fund XII Corp.
Castle Bluff Corp.
Palisades Apartment Corp.
Plaza Westlake Corp.
Thunder Hollow Apartment Corp.
Windrock Fund XIV Corp.
Arrowhead Apartment Corp.
Mountain Shadows Apartment Corp.
Woodcreek Fund XV Corp.
Sterling Springs Apartment Corp.
Bedford Green Fund XXI Corp.
Breckenridge Apartment Corp.
Evergreen Apartment Corp.
Governours Square Apartment Corp.
Woodcreek Fund XXI Corp.
River Bay Plaza Corp.
Hearth Hollow Apartment Corp.
East Bay Apartment Corp.
Regency Apartment Corp. (Missouri)
Subsidiary Partnerships
- -----------------------
Subsidiaries of MREF IX
Berkley Hills Associates (a general partnership)
Cherry Hills Fund IX Limited Partnership
Forest Park Fund IX Associates Limited Partnership
Lantern Tree Fund IX Limited Partnership
Meridian West Fund IX Limited Partnership
Pennbrook Fund IX Associates, L.P.
Rockborough Fund IX Limited Partnership
Rolling Hills Fund IX Associates, L.P.
Ruskin Place Fund IX Associates (a general partnership)
Sherwood Forest Fund IX Associates (a general partnership)
Williamsburg Fund IX Limited Partnership
Subsidiaries of MREF X
Briarwood Fund X Limited Partnership
Coppermill Fund X Limited Partnership
La Plaza Center Fund X, Limited Partnership
Orchard Fund X Limited Partnership
Quail Meadows Fund X Limited Partnership
Regency Park Fund X Associates, L.P.
Sandpiper Fund X Limited Partnership
Spanish Fund X, Ltd.
Subsidiaries of MREF XI
B-2
<PAGE>
Acacia Lakes Fund XI Limited Partnership
Gentle Gale Fund XI Limited Partnership
Knollwood Fund XI Associates (a general partnership)
Rock Creek Fund XI, Ltd.
Sun Valley Fund XI Associates (a general partnership)
Villa Del Rio Fund XI Limited Partnership
Village Fund XI Associates Limited Partnership
Subsidiaries of MREF XII
Brendon Way Fund XII Associates (a general partnership)
Buccaneer Village Fund XII, Ltd.
Castle Bluff Fund XII Associates, L.P.
Palisades Fund XII Associates, L.P.
Plaza Westlake Fund XII, Ltd.
Subsidiaries of MREF XIV
Embarcadero Associates (a general partnership)
Tanglewood Fund XIV Associates Limited Partnership
Thunder Hollow Fund XIV Limited Partnership
Windrock Fund XIV, L.P.
Subsidiaries of MREF XV
Arrowhead Fund XV Limited Partnership
McNeil Mountain Shadows Fund XV Limited Partnership
Woodcreek Fund XV, Ltd.
Subsidiary of MREF XX
Sterling Springs Fund XX Limited Partnership
Subsidiaries of MREF XXI
Bedford Green Fund XXI, L.P.
Breckenridge Fund XXI Limited Partnership
Evergreen Fund XXI Limited Partnership
Governours Square Fund XXI Limited Partnership
Woodcreek Fund XXI, L.P.
Subsidiary of MREF XXII
Harbour Club Associates Limited Partnership
Subsidiary of MREF XXIII
Beckley Associates Limited Partnership
Subsidiaries of XXIV
River Bay Plaza XXIV, L.P.
Subsidiary of MREF XXV
Van Buren Associates Limited Partnership
Subsidiary of Hearth Hollow
Hearth Hollow Apartments Limited Partnership
B-3
<PAGE>
Subsidiaries of Midwest Properties
Cedarwood Hills Associates (a general partnership)
East Bay Village Apartments Limited Partnership
Subsidiary of Regency North
Regency North Apartments Limited Partnership
B-4
<PAGE>
ANNEX C
Estimated Per Unit Minimum
Listed McNeil Partnership Aggregate Amount Amount
- ---------------------------- ------------------- --------------
McNeil Real Estate Fund IX $ 424 $ 381.60
McNeil Real Estate Fund X 234 210.60
McNeil Real Estate Fund XI 221 198.90
McNeil Real Estate Fund XIV 214 181.90
McNeil Real Estate Fund XV 160 136.00
McNeil Real Estate Fund XX 92 73.60
McNeil Real Estate Fund XXIV 347 294.95
McNeil Real Estate Fund XXV 0.50 0.45
McNeil Real Estate Fund XXVI 0.27 0.243
McNeil Real Estate Fund XXVII 10.54 9.486
C-1
