UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Integrated Resources High Equity Partners, Series 85
(Name of Issuer)
Units of Limited Partnership Interest
(Title of Class of Securities)
None
(CUSIP Number)
Bonnie D. Podolsky, Esq.
Gordon Altman Butowsky Weitzen Shalov & Wein
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)
July 27, 1998
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for 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. None
1 NAME OF REPORTING PERSON
Olympia Investors, L.P.
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/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF;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
32,078 Units **
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
32,078 Units **
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
32,078 Units **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.02% **
14 TYPE OF REPORTING PERSON*
PN
** Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein.
<PAGE>
SCHEDULE 13D
CUSIP No. None
1 NAME OF REPORTING PERSON
Olympia-GP, Inc.
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/
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
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
32,078 Units **
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
32,078 Units **
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
32,078 Units **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.02% **
14 TYPE OF REPORTING PERSON*
CO
** Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein.
<PAGE>
SCHEDULE 13D
CUSIP No. None
1 NAME OF REPORTING PERSON American Real Estate Holdings, L.P.
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/
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
32,078 Units **
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
32,078 Units **
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
32,078 Units **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.02% **
14 TYPE OF REPORTING PERSON*
PN
** Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein.
<PAGE>
SCHEDULE 13D
CUSIP No. None
1 NAME OF REPORTING PERSON American Property Investors, Inc.
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/
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
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
32,078 Units **
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
32,078 Units **
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
32,078 Units **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.02% **
14 TYPE OF REPORTING PERSON*
CO
** Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein.
<PAGE>
SCHEDULE 13D
CUSIP No. None
1 NAME OF REPORTING PERSON
Longacre Corp.
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/
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
1,657 Units
8 SHARED VOTING POWER
9 SOLE DISPOSITIVE POWER
1,657 Units
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,657 Units
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.41%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
SCHEDULE 13D
CUSIP No. None
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/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
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
8 SHARED VOTING POWER
33,735 Units **
9 SOLE DISPOSITIVE POWER
10 SHARED DISPOSITIVE POWER
33,735 Units **
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,735 Units **
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.43% **
14 TYPE OF REPORTING PERSON*
IN
** Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein; Includes
Units owned by Longacre Corp., a Delaware corporation wholly-owned by Carl C.
Icahn.
<PAGE>
Item 1. Security and Issuer
This statement relates to units of limited partnership
interest ("Units") in Integrated Resources High Equity
Partners, Series 85, a California limited partnership (the
"Issuer"). The address of the principal executive offices of
the Issuer is 411 West Putnam Avenue, Greenwich, CT 06830.
Item 2. Identity and Background
This Statement is filed jointly by Olympia Investors, L.P.
("Olympia"), Olympia-GP, Inc. (the "Olympia General Partner"),
American Real Estate Holdings, L.P. ("AREH"), American
Property Investors, Inc., ("API"), Longacre Corp.
("Longacre") and Carl C. Icahn (collectively, the "Reporting
Persons").
Olympia is a Delaware limited partnership. The Olympia General
Partner, Olympia's general partner, is a Delaware corporation
which is wholly-owned by AREH, a Delaware limited partnership.
The general partner of AREH is API, a Delaware corporation
which is wholly-owned by Carl C. Icahn. Longacre is a Delaware
corporation which is wholly-owned by Carl C. Icahn. The
address of the principal offices of each of Olympia, the
Olympia General Partner, AREH and API is 100 South Bedford
Road, Mount Kisco, New York 10549. The address of the
principal offices of Longacre is 1 Wall Street, New York, New
York 10005. Mr. Icahn's business address is c/o Icahn
Associates Corp., 767 Fifth Avenue, New York, New York 10153.
Olympia and the Olympia General Partner were recently formed
for the purpose of acquiring Units of the Issuer as well as
acquiring the securities of certain other limited
partnerships. API is engaged in the business of acting as
general partner of AREH. Longacre is principally engaged in
the business of investing in securities.
The name and positions of the executive officers and directors
of the Olympia General Partner, API and Longacre are set forth
below. The business address of each such executive officer and
director (other than Messrs. Icahn, Hirsch, Mattner and
Mitchell and Ms. Golden) is 100 South Bedford Road, Mount
Kisco, N.Y. 10549. The business address of Messrs. Icahn,
Hirsch, Mattner and Mitchell and Ms. Golden is c/o Icahn
Associates Corp., 767 Fifth Avenue, New York, New York 10153.
Each such executive officer and director is a citizen of the
United States of America. Each executive officer and director
listed below (other than Mr. Icahn) disclaims beneficial
ownership of the Units beneficially owned by the Reporting
Persons.
Carl C. Icahn Director and Chairman of the Board (API);
Director (Longacre)
Alfred D. Kingsley Director (API)
William A. Leidesdorf Director (API)
Jack G. Wasserman Director (API)
John P. Saldarelli Vice President, Secretary and Treasurer
(API); Director, Secretary and Treasurer
(Olympia General Partner)
<PAGE>
Henry J. Gerard Vice President, Assistant Secretary and
Director (Olympia General Partner)
Martin L. Hirsch Vice President (API); Vice President and
Director (Olympia General Partner)
Edward Mattner President (Longacre)
Robert J. Mitchell Vice President and Treasurer (Longacre)
Gail Golden Vice President and Secretary
(Longacre)
The following sets forth with respect to each executive
officer and director of the Olympia General Partner, API and
Longacre such person's (a) name, (b) present principal
occupation or employment and the name and principal business
of any corporation or other organization in which such
employment or occupation is conducted and (c) material
occupations, positions, offices or employments during the last
five years.
CARL C. ICAHN. Carl C. Icahn has been Chairman of the Board
of Directors of API since November 15, 1990. Mr. Icahn is
also President and a director of Starfire Holding Corporation
(formerly Icahn Holding Corporation), a Delaware corporation
("SHC"), and Chairman of the Board and a director of various
of SHC's subsidiaries, including ACF Industries, Inc., a New
Jersey corporation ("ACF"). SHC is primarily engaged in the
business of holding, either directly or through subsidiaries,
a majority of the common stock of ACF and its address is 100
South Bedford Road, Mount Kisco, New York 10549. Mr. Icahn
has also been Chairman of the Board of Directors of ACF since
October 29, 1984 and a director of ACF since June 29, 1984.
ACF is a railroad freight and tank car leasing, sales and
manufacturing company. He has also been Chairman of the
Board of Directors and President of Icahn & Company, Inc.
since 1968. Icahn & Company, Inc. is a registered
broker-dealer and a member of the National Association of
Securities Dealers. In 1979, Mr. Icahn acquired control and
presently serves as Chairman of the Board of Directors of
Bayswater Realty & Capital Corp., which is a real estate
investment and development company ("Bayswater"). ACF, Icahn
& Company, Inc. and Bayswater are deemed to be directly or
indirectly owned and controlled by Mr. Icahn. Mr. Icahn was
Chief Executive Officer and member of the Office of the
Chairman of Trans World Airlines, Inc. ("TWA") from November
8, 1988 to January 8, 1993; Chairman of the Board of
Directors of TWA from January 3, 1986 to January 8, 1993; and
a director of TWA from September 27, 1985 to January 8, 1993.
Mr. Icahn also has substantial equity interests in and
controls various partnerships and corporations which invest in
publicly traded securities.
ALFRED D. KINGSLEY. Alfred D. Kingsley has served as a
director of API since November 15, 1990. He was also Vice
Chairman of the Board of Directors of TWA from February 1,
1989 to January 8, 1993 and a member of the Office of the
Chairman from November 8, 1988 to January 8, 1993. Mr.
Kingsley was a director of TWA from September 27, 1985 to
January 8, 1993. He also was a director and executive officer
and Director of Research at Icahn & Co., Inc. and related
entities from 1968 until December 1994. He also has been Vice
Chairman of the Board of Directors of ACF since October 29,
1984 and a Director of ACF since June 29, 1984. Mr. Kingsley
<PAGE>
has also been a Senior Managing Director of Greenway Partners,
L.P. since May 1993, which invests in publicly traded
securities.
WILLIAM A. LEIDESDORF. William A. Leidesdorf has served as a
director of API since March 26, 1991. Since April 1995, Mr.
Leidesdorf has acted as an independent real estate investment
banker. From January 1, 1994 through April 1995, Mr.
Leidesdorf was Managing Director of RFG Financial, Inc., a
commercial mortgage company. From September 30, 1991 to
December 31, 1993, Mr. Leidesdorf was Senior Vice President of
Palmieri Asset Management Group. From May 1, 1990 to September
30, 1991, Mr. Leidesdorf was Senior Vice President of Lowe
Associates, Inc., a real estate development company, where he
was involved in the acquisition of real estate and the asset
management workout and disposition of business areas. He also
acted as the Northeast Regional Director for Lowe Associates,
Inc. From June 1985 to January 30, 1990, Mr. Leidesdorf was
Senior Vice President and stockholder of Eastdil Realty, Inc.,
a real estate company, where he was involved in the asset
management workout, disposition of business and financing
areas. During the interim period form January 30, 1990 through
May 1, 1990, Mr. Leidesdorf was an independent contractor for
Eastdil Realty, Inc. on real estate matters.
JACK G. WASSERMAN. Jack G. Wasserman has served as a director
of API since December 3, 1993. Mr. Wasserman is an attorney
and a member of the New York State Bar and has been with the
New York based law firm of Wasserman, Schneider & Babb since
1966, where he is currently a senior partner.
JOHN P. SALDARELLI. John P. Saldarelli has served as a
director, Secretary and Treasurer of the Olympia General
Partner since February 1998. He has also served as Vice
President, Secretary and Treasurer of API since March 18,
1991. Mr. Saldarelli was also President of Bayswater Realty
Brokerage Corp. from June 1987 until November 19, 1993 and
Vice President of Bayswater Realty & Capital Corp. from
September 1979 until April 15, 1993.
HENRY J. GERARD. Mr. Gerard has served as a director, Vice
President and Assistant Secretary of the Olympia General
Partner since February 1998. He has also served as Vice
President and Controller of API since March 18, 1991. From
January 1988 to May 1991, he was a Vice President API, a
provider of financial services. From 1981 through 1987 he was
a controller at Interstate Properties, a commercial real
estate developer/operator.
MARTIN L. HIRSCH. Mr. Hirsch has served as a director and
Vice President of the Olympia General Partner since February
1998. He has also served as Vice President of API since March
18, 1991. From January 1986 to January 1991 he was a vice
president at Integrated Resources, Inc.
EDWARD E. MATTNER. Mr. Mattner has served as President of
Longacre since June 6, 1995. Mr. Mattner's present principal
occupation is acting as a securities trader for various
affiliates of Mr. Icahn. He has served in this capacity since
May 1976.
<PAGE>
ROBERT J. MITCHELL. Mr. Mitchell has served as Vice President
and Treasurer of Longacre since June 6, 1995. Mr. Mitchell's
present principal occupation is acting as Senior Vice
President Finance of ACF. ACF is primarily engaged in the
business of leasing, selling and manufacturing railroad
freight and tank cars and its address is 3301 Rider Trail
South, Earth City, Missouri 63045. Mr. Mitchell has served as
Executive Vice President Finance since March 1995 and also
served as Secretary of ACF since August 1993, Treasurer from
December 1984 to March 1995 and Assistant Secretary from
September 1986 to August 1993. Mr. Mitchell has also served
as Treasurer (since May 1988) and Chief Financial Officer
(since March 1995) of American Railcar Industries, Inc., a
subsidiary of ACF which is primarily engaged in the business
of repairing, refurbishing, painting and maintaining railcars
and in manufacturing and selling parts for railcars and other
industrial purposes. The address of American Railcar
Industries, Inc. is 3301 Rider Trail South, Earth City,
Missouri 63045. Mr. Mitchell became the Treasurer of TWA,
whose address is One City Centre, 515 N. Sixth Street, St.
Louis, Missouri 63101, in 1987 and held that position until he
resigned, effective as of January 5, 1993. From March 1982
until November 1984, Mr. Mitchell was a Vice
President-Department Head of National Westminster Bank, USA,
located at 175 Water Street, New York, N.Y. 10038.
GAIL GOLDEN. Gail Golden has served as Vice President and
Secretary of Longacre since June 6, 1995. She has served as
Vice President-Administration of Icahn Associates Corp., which
provides administrative services to entities controlled by Mr.
Icahn, since May 1985. Ms. Golden also serves as an executive
officer of a number of other entities controlled by Mr. Icahn.
Neither Olympia, the Olympia General Partner, Longacre or API,
nor any executive officer or director of the Olympia General
Partner, Longacre or API has during the past five years, (a)
been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining
further violations of, or prohibiting activities subject to,
federal or state securities laws or a finding of any violation
of such laws.
Item 3. Source and Amount of Funds or Other Consideration
As of the date hereof, Olympia is deemed to directly
beneficially own an aggregate of 32,078 Units (the "Olympia
Units"), all of which were tendered pursuant to the Tender
Offer (as hereinafter defined). The aggregate purchase price
of the Olympia Units is $3,047,410.00 (net of related
expenses). Olympia will obtain all of the funds necessary to
acquire the Olympia Units from working capital derived from
capital contributions from its partners. None of such funds
will be borrowed. As used herein, "Tender Offer" refers to
Olympia's tender offer to purchase up to 60,000 of the
Issuer's outstanding Units. Olympia filed a Tender Offer
Statement on Schedule 14D-1 with respect to the Tender Offer
with the Commission on March 12, 1998 (as amended and
supplemented, the "Schedule 14D-1").
<PAGE>
Longacre directly beneficially owns 1,657 Units. Such Units
were acquired in auction transactions through the Chicago
Partnership Board for an aggregate purchase price of
$104,358.96 (net of related expenses). Longacre obtained the
funds to purchase such Units from its working capital. None of
such funds were borrowed or otherwise obtained for the purpose
of acquiring Units.
Item 4. Purpose of Transaction
Longacre acquired the Units directly beneficially owned by it
for investment purposes based on its expectation that there
may be underlying value in the Issuer's properties.
The purpose of the Tender Offer was to enable Olympia to
acquire a significant interest in the Issuer for investment
purposes based on its expectation that there may be underlying
value in the Issuer's properties. The Reporting Persons do not
presently intend to make any effort to change current
management or the operation of the Issuer and have no present
plans or intentions for any extraordinary transaction
involving the Issuer. Furthermore, Olympia and its affiliates
have agreed with Presidio that, prior to March 6, 2001, they
will not, among other things, seek the removal of the general
partners of the Issuer (the "General Partners"), seek to
control the management, policies or affairs of the Issuer, or
seek to effect any form of business combination or other
extraordinary transaction with the Issuer or the General
Partners. Olympia and its affiliates have also agreed, prior
to March 6, 2001, to vote their Units in favor of a proposal,
if any, by the General Partners that would result in limited
partners of the Issuer receiving securities that are listed on
NASDAQ or a national securities exchange. The foregoing voting
agreement will not apply in the circumstances described in
Amendment No. 2 to the Agreement (as described in Item 6
below). However, Olympia's plans with respect to its
investment in the Units could change after March 6, 2001.
The purchase of the Units will allow Olympia to benefit from
any of the following: (a) any cash distributions from the
Issuer's operations in the ordinary course of business; (b)
any distributions of net proceeds from the sale of the
Issuer's properties; and (c) any distributions of net proceeds
from the liquidation of the Issuer. Following the completion
of the Tender Offer (but subject to the terms of the Agreement
(as defined in Item 6 below)), Olympia and/or persons related
to or affiliated with it may acquire additional Units or may
sell Units. Any acquisition may be made through private
purchases, through one or more future tender or exchange
offers or by any other means deemed advisable. Any acquisition
may be at a price higher or lower than the price to be paid
for the Units purchased pursuant to the Tender Offer, and may
be for cash or other consideration. Olympia also may in the
future (subject to the terms of the Agreement) consider
selling some or all of the Units it acquires pursuant to the
Tender Offer to persons not yet determined. Under the
Agreement, Presidio has the right to purchase 50% of the Units
acquired by Olympia in the Offer and the Units are subject to
a buy/sell agreement with Presidio.
Except as set forth herein, the Reporting Persons do not
have any present plans or proposals which relate to or
would result in an extraordinary transaction, such as a
merger, reorganization or liquidation,
<PAGE>
involving the Issuer; a sale or transfer of a material amount
of the Issuer's assets; any changes in composition of the
Issuer's senior management or personnel or their compensation;
any changes in the Issuer's present capitalization or dividend
policy; or any other material changes in the Issuer's
structure or business.
Item 5. Interest in Securities of the Issuer
(a) and (b)
As of the date hereof, Olympia, the Olympia General Partner,
API and Mr. Icahn are deemed to beneficially own an aggregate
of 32,078* Units, representing approximately 8.02% of
the 400,010 Units stated to be outstanding by the Issuer in
its Quarterly Report on Form 10- Q for the quarterly period
ended March 31, 1998 (the "Form 10-Q"). Olympia is deemed to
be the direct beneficial owner, and the Olympia General
Partner, API and Mr. Icahn are deemed to be the
* Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein.
<PAGE>
indirect beneficial owners of these 32,078* Units. Olympia,
the Olympia General Partner, API and Mr. Icahn have sole power
to direct the vote and sole power to direct the disposition of
these Units.
As of the date hereof, Longacre and Mr. Icahn are deemed to
beneficially own 1,657 Units, representing approximately 0.41%
of the outstanding Units (based upon the Form 10-Q). Longacre
is deemed to be the direct beneficial owner and Mr. Icahn is
deemed to be the indirect beneficial owner of these Units.
Longacre and Mr. Icahn have sole power to direct the vote and
sole power to direct the disposition of these Units.
The 33,735** Units of which Mr. Icahn is deemed to be the
indirect beneficial owner represent approximately 8.43% of the
outstanding Units (based upon the Form 10-Q).
As a result of the Agreement (as defined and described in Item
6 below), Presidio Capital Corp. ("Presidio") (which
indirectly owns all of the issued and outstanding capital
stock of the General Partners), W. Edward Scheetz, David
Hamamoto and NorthStar Capital Partners ("Northstar") (who
directly or indirectly control Presidio), Millenium Funding
Corp., Millenium Funding IV Corp., Presidio Holding Company,
LLC, NorthStar Presidio Management Company, LLC, NorthStar
Operating, LLC and NorthStar Capital Holdings I, LLC
(collectively, the "Presidio Bidders"), were deemed to be
"co-bidders" with Olympia in connection with the Tender Offer
for purposes of Regulation 14D.
However, neither the filing of this Schedule 13D nor any of
its contents shall be deemed an admission that the Reporting
Persons are part of a "group" with the Presidio Bidders or
that the Reporting Persons are the beneficial owners of any of
the Units held by the Presidio Bidders. The Reporting Persons
expressly disclaim formation of a "group" with the Presidio
Bidders and the Reporting Persons expressly disclaim
beneficial ownership of any of the Presidio Bidders' Units.
(c) Except for the purchase of Units pursuant to the Tender Offer,
neither the Reporting Persons, the executive officers and
directors listed in Item 2, nor any of their affiliates, have
effected any transaction in Units within the past 60 days.
(d) The Reporting Persons have no knowledge of any other persons
who might have the right to receive or the power to direct the
receipt of distributions from, or the proceeds from the sale
of, any Units beneficially owned by the Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer
The information set forth in Item 3, Item 4 and Item 5 above
is hereby incorporated by reference herein.
On September 11, 1997, Longacre sent letters to the General
Partners requesting lists of limited partners of the Issuer
and certain related partnerships (the "Related Partnerships")
for the purpose of enabling an affiliate to make tender offers
for Units of the Issuer and the Related Partnerships. Longacre
sent a second letter requesting limited partner lists to the
General Partners on
* Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein.
** Based upon a preliminary count of Units validly tendered and not withdrawn
received from the depositary for the tender offer described herein; Includes
Units owned by Longacre Corp., a Delaware corporation wholly-owned by Carl C.
Icahn.
<PAGE>
February 13, 1998. The requested lists were furnished to
Olympia under the agreement (the "Agreement") discussed below
on or about March 9, 1998.
In late October or early November 1997, a representative of
AREH contacted the managing partner of Northstar, which
indirectly controls Presidio and the General Partners, to
discuss the possibility of conducting a joint tender offer for
Units of the Issuer and the Related Partnerships.
Representatives of AREH met with the managing partner of
Northstar on November 3, 1997, but they were unable to reach
agreement on the terms on which a joint tender might be
conducted. Following the November 3 meeting, representatives
of AREH, Northstar and Presidio continued to discuss a
possible joint tender offer in several telephone
conversations.
Between approximately December 17, 1997 and March 5, 1998,
representatives of AREH, Northstar and Presidio and their
counsel attended meetings and/or participated in telephone
conversations in which they negotiated the terms of the
Agreement, a copy of which is filed as Exhibit (1) hereto. The
Agreement provides, among other things, for: (i) Olympia's
conduct of tender offers (the "Offers") for up to 40% of the
outstanding Units of the Issuer and the Related Partnerships,
and the cooperation of the General Partners to facilitate such
Offers (including furnishing Olympia with limited partner
lists for use in connection with the Offers and taking a
neutral stance with respect thereto) and the transfer of
tendered Units to Olympia without the imposition of transfer
fees; (ii) an agreement by Olympia and its affiliates to limit
their acquisition of Units in the Issuer and the Related
Partnerships to Units acquired in the Offers and to limit
their acquisition of assets or properties of the Issuer or the
Related Partnerships to properties or assets which the General
Partners or their affiliates have publicly announced their
intention to sell or have hired a broker for such purpose;
(iii) an agreement by Olympia and its affiliates not to: seek
the removal of the General Partners or call any meeting of
limited partners of the Issuer or the Related Partnerships;
make any proposal to or seek proxies from limited partners of
the Issuer or the Related Partnerships; or act, either alone
on in concert with others, to seek to control the management,
policies or affairs of the Issuer or any Related Partnership
or to effect any business combination or other extraordinary
transaction with the Issuers or the General Partners; (iv) an
agreement by Olympia and its affiliates to vote Units owned by
them in favor of a proposal, if any, by the General Partners
resulting in limited partners receiving securities that are
listed on NASDAQ or a national securities exchange; (v)
Olympia's grant to Presidio of a call option to purchase 50%
of the Units in the Issuer acquired in the Tender Offer at a
price equal to the lesser of the price paid by Olympia or
$110.68 per Unit (except that the limitation of the call price
to $110.68 per Unit will not apply if the purchase price is
increased to more than that amount in response to a competing
bid), plus 50% of Olympia's costs associated with the Tender
Offer; (vi) the grant to Presidio of a similar call option to
purchase 50% of the Units in the Related Partnerships acquired
pursuant to the Offers; (vii) a buy/sell agreement, pursuant
to which either party can initiate buy/sell procedures by
notifying the other of a specified price per Unit (not to
exceed the then current net asset value of the Units) and the
other terms and conditions on which the non-initiating party
<PAGE>
would then be required to elect (subject to certain
exceptions) either to buy certain Units from the initiating
party or to sell certain Units to the initiating party (such
Units consisting, in the case of Olympia, of all Units owned
by Olympia and its affiliates and, in the case of Northstar,
of all Units purchased by Northstar upon exercise of the call
option described above). The agreements of Olympia and its
affiliates described in clauses (ii), (iii) and (iv) above
expire on March 6, 2001, but may expire earlier under certain
circumstances. In connection with the negotiation of the
Agreement, Northstar and Presidio furnished Olympia with
appraisals of each of the properties of the Issuer and the
Related Partnerships prepared by an independent appraisal firm
in August and September 1997.
In Amendment No. 1 to the Agreement, the parties provided for
cross-indemnification agreements by AREH and Presidio with
respect to certain liabilities under the federal securities
laws relating to information provided in connection with the
Offers concerning themselves and their respective affiliates
who are co-bidders.
In Amendment No. 2 to the Agreement, the parties provided that
Olympia and its affiliates will not be obligated to vote Units
in favor of a proposal that is made in contravention of the
undertaking of the General Partners and their affiliates not
to, prior to the first anniversary of the completion of the
Tender Offer, solicit approval by the limited partners of the
Issuer for, or consummate, a transaction, or series of related
transactions, constituting a "roll-up transaction" (within the
meaning of Regulation S-K, Item 901), other than a conversion
of the Issuer into a stand-alone (i.e., not part of another
entity or entities), actively traded, real estate investment
trust pursuant to Section 3(a)(10) of the Securities Act of
1933, where the terms and conditions of the transaction, or
series of related transactions, including any related tender
offer for Units or any sale or financing of Issuer properties,
are approved, after a hearing upon the fairness of such terms
and conditions at which all limited partners of the Issuer
have the right to appear, by the court in connection with a
settlement of certain litigation to which the Issuer is a
party.
In Amendment No. 3 to the Agreement, the parties agreed that
the Offers would be extended until 5:00 p.m. on Friday, July
24, 1998.
The discussion herein of the Agreement and Amendments No. 1, 2
and 3 thereto is subject to and qualified in its entirety by
reference to such agreements, which are filed as exhibits to
this Schedule 13D and are incorporated herein by reference.
Except as described above, the Reporting Persons do not have
any contracts, arrangements, understandings or relationships
with respect to any securities of the Issuer.
Item 7. Material to Be Filed as Exhibits
The documents listed below are filed as exhibits to this
Schedule 13D:
Exhibit 1. Agreement dated March 6, 1998, by and
among Presidio Capital Corp., American Real
Estate Holdings, L.P., and Olympia
Investors, L.P.
<PAGE>
Exhibit 2. Amendment No. 1 dated as of May 20, 1998, to
the Agreement dated March 6, 1998, by and
among Presidio Capital Corp., American Real
Estate Holdings, L.P., and Olympia
Investors, L.P.
Exhibit 3. Amendment No. 2 dated as of June 29, 1998,
to the Agreement dated March 6, 1998, by and
among Presidio Capital Corp., American Real
Estate Holdings, L.P., and Olympia
Investors, L.P.
Exhibit 4. Amendment No. 3 dated as of July 16, 1998,
to the Agreement dated March 6, 1998, by and
among Presidio Capital Corp., American Real
Estate Holdings, L.P., and Olympia
Investors, L.P.
Exhibit 5. Joint Filing Agreement dated August 5, 1998,
among Olympia Investors, L.P., Olympia-GP,
Inc., American Real Estate Holdings, L.P.,
American Property Investors, Inc., Longacre
Corp., and Carl C. Icahn.
Exhibit 6. Power of Attorney dated May 20, 1998,
executed by Carl C. Icahn, appointing
Theodore Altman as attorney-in-fact.
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: August 5, 1998
OLYMPIA INVESTORS, L.P.
By: Olympia-GP, Inc., general partner
By: /S/ HENRY J. GERARD
Name: Henry J. Gerard
Title: Vice President
OLYMPIA, GP, INC.
By: /S/ HENRY J. GERARD
Name: Henry J. Gerard
Title: Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P.
BY: American Property Investors, Inc.,
general partner
By: /S/ JOHN P. SALDARELLI
Name: John P. Saldarelli
Title: Vice President
AMERICAN PROPERTY INVESTORS, INC.
By: /S/ JOHN P. SALDARELLI
Name: John P. Saldarelli
Title: Vice President
LONGACRE CORP.
By: /S/ ROBERT J. MITCHELL
Name: Robert J. Mitchell
Title: Vice President
CARL C. ICAHN
By: /S/ THEODORE ALTMAN
Theodore Altman, Attorney-In-Fact
[Signature Page to Schedule 13D re:
Integrated Resources High Equity Partners, Series 85]
<PAGE>
Exhibit Index
Exhibit 1. Agreement dated March 6, 1998, by and among Presidio Capital
Corp., American Real Estate Holdings, L.P., and Olympia
Investors, L.P.
Exhibit 2. Amendment No. 1 dated as of May 20, 1998, to the Agreement
dated March 6, 1998, by and among Presidio Capital Corp.,
American Real Estate Holdings, L.P., and Olympia Investors,
L.P.
Exhibit 3. Amendment No. 2 dated as of June 29, 1998, to the Agreement
dated March 6, 1998, by and among Presidio Capital Corp.,
American Real Estate Holdings, L.P., and Olympia Investors,
L.P.
Exhibit 4. Amendment No. 3 dated as of July 16, 1998, to the Agreement
dated March 6, 1998, by and among Presidio Capital Corp.,
American Real Estate Holdings, L.P., and Olympia Investors,
L.P.
Exhibit 5. Joint Filing Agreement dated August 5, 1998, 1998, among
Olympia Investors, L.P., Olympia-GP, Inc., American Real
Estate Holdings, L.P., American Property Investors, Inc.,
Longacre Corp., and Carl C. Icahn.
Exhibit 6. Power of Attorney dated May 20, 1998, executed by
Carl C. Icahn, appointing Theodore Altman as
attorney-in-fact.
AGREEMENT
DATED MARCH 6, 1998
The parties to this agreement are Presidio Capital Corp., a
corporation organized in the British Virgin Islands ("Presidio"), American Real
Estate Holdings L.P., a Delaware limited partnership ("AREH") and Olympia
Investors, L.P., a Delaware limited partnership ("Olympia").
Presidio, directly or indirectly, controls the general
partners of each of Integrated Resources High Equity Partners, Series 85, a
California limited partnership ("HEP 85"), High Equity Partners L.P. - Series
86, a Delaware limited partnership ("HEP 86"), and High Equity Partners L.P. -
Series 88, a Delaware limited partnership ("HEP 88" and collectively with HEP 85
and HEP 86, the "Partnerships"). On the date of this agreement, AREH and its
affiliates beneficially own 1,657 units of limited partnership interest
("Units") of HEP 85, 3,243Units of HEP 86 and 2,346 Units of HEP 88. Olympia, a
newly-formed Delaware limited partnership affiliated with AREH, wishes to make
tender offers (the "Offers") to acquire up to approximately 40% of the
outstanding Units of each of the Partnerships and, in that connection, proposes
to file with the Securities and Exchange Commission (the "Commission") a Tender
Offer Statement on Schedule 14D-1 relating to each Offer (collectively, the
"Schedule 14D-1's") substantially in the forms set forth on schedule A.
The parties agree as follows:
1. OFFERS. (a) Olympia intends to file the Schedule 14D-1's with the
Commission, and to cause the related Offers to Purchase, Assignments of
Partnership Interest and Cover Letters included as exhibits to such Schedule
14D-1's (such Offers to Purchase, Assignments of Partnership Interest
<PAGE>
and Cover Letters, together with any amendments or supplements thereto or any
other communications proposed to be sent to holders of Units of any Partnership
being collectively referred to as the "Offering Materials") to be mailed to
holders of Units, on or before the fifth business day following delivery by the
Partnerships to Olympia of the Lists referred to in section 1(b) hereof. Olympia
shall cause each Offer to expire on or before May 12, 1998 (the date on which an
Offer expires in accordance with this sentence, as the same may be extended in
accordance with the proviso set forth below, the "Final Expiration Date");
PROVIDED, HOWEVER, that the Final Expiration Date with respect to any Offer may
be extended, upon notice by Olympia to Presidio, under the following
circumstances: (i) if there is in effect, on such date, any preliminary or
permanent injunction or other order of any federal or state court, government or
governmental authority or agency of the type described in paragraph (a) of
Section 14 of the applicable Offer to Purchase (such preliminary or permanent
injunction or other order being hereinafter referred to as an "Injunction"), the
Final Expiration Date of such Offer may be extended to the earliest practicable
date on which such Offer may expire in accordance with the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated by the commission thereunder (the Exchange Act and such rules and
regulations being hereinafter collectively referred to as the "Rules"),
following the vacation or dissolution of such Injunction and the dissemination
to limited partners of additional Offering Materials containing any necessary
disclosure relating thereto; (ii) subject to clause (i) above, if there is
pending, on such date, any action or proceeding of the type described in
paragraph (h) of Section 14 of the applicable Offer to Purchase, the Final
Expiration Date of such Offer may be extended to the earlier of (A) the earliest
practicable date on which such Offer may expire in accordance with the Rules
following the final resolution of such action or proceeding and the
dissemination to limited partners of additional offering Materials containing
any necessary disclosure relating thereto or (B) June 11, 1998; (iii) the Final
Expiration Date of such Offer may be extended to the earliest practicable date
on which such Offer may expire in accordance with the Rules following the
dissemination to limited partners of additional Offering Materials prepared for
the purpose of complying with comments by the staff of the Commission, provided
that Olympia uses its best efforts to comply with such comments expeditiously;
or (iv) in the event that a competing offer for Units is commenced by a third
party bidder who is not affiliated with AREH (a "Competing Offer"), the Final
Expiration Date of such Offer may be extended, on one or more occasions, to the
earliest practicable date on which such Offer may expire in accordance with the
Rules following an increase in the offering price to a price equal to or higher
than the price offered by the competing bidder and the dissemination to limited
partners of amended Offering Materials disclosing such increase, PROVIDED,
HOWEVER, that if such Competing Offer is for less than 5% of the outstanding
Units of a Partnership, the Final Expiration Date may not be extended for more
than ten business days beyond June 11, 1998 pursuant to this clause (iv).
Presidio will not unreasonably withhold or delay its consent to any request by
Olympia to extend the Final Expiration Date of any Offer, for any reason other
than those set forth in the immediately preceding sentence, provided that such
request does not seek to extend such Final Expiration Date beyond June 11, 1998.
(b) Concurrently herewith, Presidio has caused the
Partnerships to furnish Olympia with lists, as of the most recent practicable
date and in computer readable form, of the names, addresses and numbers of Units
held by limited partners of the Partnerships (the "Lists"),
<PAGE>
together with such computer processing data as is necessary to make use of such
computer readable Lists and printouts of such Lists for verifications purposes.
AREH shall not, and shall cause its affiliates, agents and representatives not
to, use the Lists for any purpose other than to acquire Units pursuant to the
Offers.
(c) Olympia shall make all decisions regarding the conduct of
the Offers and the acquisition and transfer of Units pursuant thereto, including
without limitation decisions regarding any change in the terms or waiver of any
of the conditions thereof; PROVIDED, HOWEVER, that, without obtaining the prior
written approval of Presidio, Olympia shall not amend or otherwise modify the
terms of any Offer: (i) to increase the number of Units of any Partnership
sought to be purchased in such Offer to a number in excess of 40% of the
outstanding Units of such Partnership; or (ii) in a manner that violates or is
inconsistent with its obligations under this agreement. Olympia shall provide
Presidio with copies of Offering Materials describing any proposed change in the
terms of, or waiver of any condition to, an Offer not less than two business
days prior to the date such Offering Materials are first mailed to holders of
Units. Each party shall, and shall cause its affiliates to, comply with the
Rules in connection with the Offers.
(d) Presidio will not, and will cause its affiliates not to,
directly or indirectly, purchase or otherwise acquire beneficial ownership of
Units in any Partnership, enter into any agreement with a third party to
purchase or otherwise acquire beneficial ownership of any Units in any
Partnership, or make any offer to purchase or otherwise acquire beneficial
ownership of, or solicit any offer to sell, Units in any Partnership, at any
time commencing on the date hereof through and including the Final Expiration
Date of the Offer with respect to such Partnership.
2. STANDSTILL. (a) Prior to the Standstill Expiration Date (as hereinafter
defined), except to the extent AREH or its affiliates is invited to do
<PAGE>
otherwise by Presidio, AREH shall not, and shall not permit any of its
affiliates to, directly or indirectly:
(i) acquire, announce an intention to acquire, offer or
propose to acquire, solicit an offer to sell or agree to acquire, by purchase
, by gift, by joining a partnership, a limited partnership, a syndicate or
any group or otherwise (other than any partnership, limited partnership,
syndicate or group consisting solely of AREH and its affiliates and, in
such event, only to the extent permitted pursuant to section 2(b) below),
(A) any Units in any Partnership or (B) any assets, businesses or properties of
any Partnership;
(ii) participate in the formation or encourage the
formation of, or join or in any way participate with, any partnership,
limited partnership, syndicate, group or other person or entity that
beneficially owns or seeks to acquire beneficial ownership of Units in any
Partnership for the purpose of beneficially owning or acquiring beneficial
ownership of any such Units (other than any group consisting solely of AREH and
its affiliates);
(iii) solicit, or participate in the solicitation of,
proxies or become a participant in any election contest (the terms used in
this section 2.3 having the respective meanings given them to Regulation
14A under the Exchange Act) with respect to any Partnership;
(iv) initiate, propose or otherwise solicit limited
partners for the approval of one or more proposals with respect to any
Partnership or induce any other person to initiate any such proposal;
(v) seek the removal of any general partner of any
Partnership or seek to have called any meeting of limited partners of any
Partnership;
(vi) deposit any Units of any Partnership in a voting
trust or subject them to a voting agreement or other agreement or
<PAGE>
arrangement with respect to voting (other than this agreement or any agreement
or arrangement solely among AREH and its affiliates); or
(vii) otherwise act, alone or in concert with others, to
seek to control the management, policies or affairs of any Partnership or
solicit, propose, seek to effect or negotiate with any other person or
entity (including, without limitation, any Partnership) with respect to any
form of business combination or other extraordinary transaction with any
Partnership or any of its general partners; solicit, make or propose, or
negotiate with any other person or entity with respect to, or announce an
intent to make, any tender offer or exchange offer for any Units in any
Partnership; publicly disclose an intent, purpose, plan or proposal with
respect to any Partnership or any securities or assets of any Partnership
that would violate the provisions of this section 2; or assist, participate
in, facilitate or solicit any effort or attempt by any person or entity to
do or seek to do any of the foregoing.
(b) Notwithstanding the provisions of section 2(a):
(i) AREH and its affiliates: may conduct the Offers, and
acquire Units pursuant to the Offers, in accordance with section 1 hereof and
may exercise their rights and perform their obligations under this Agreement;
(ii) Olympia and/or any Permitted Transferee may acquire from
any Partnership, as a distribution from the Partnership, any securities or other
assets or properties the Partnership distributes to its partners in any such
distribution.
(iii) Except as to the matters expressly referred to in
section 2(a) and except as provided in section 5, Olympia and any Permitted
Transferee of Units shall be entitled to exercise their rights as a limited
partner of each Partnership in which they own Units, including, without
<PAGE>
limitation, the rights to access books and records of the Partnership and to
vote.
(iv) Neither AREH nor any affiliate of AREH shall be deemed
to have violated section 2 of this Agreement in the event that such person
acquires beneficial ownership of Units of any Partnership pursuant to a
transaction in which such person acquires another entity, in circumstances in
which the principal purpose of such transaction is not to acquire Units of
such Partnership or otherwise to circumvent the intent of this agreement,
provided that the number of Units so acquired, together with the aggregate
number of Units of such Partnership acquired by AREH or any affiliate of
AREH in any other transactions permitted pursuant to this paragraph (iv),
represent a DE MINIMIS amount of the total outstanding Units of such
Partnership.
(v) AREH and its affiliates may acquire, offer or propose to
acquire, or agree to acquire one or more assets, businesses or properties of any
Partnership if, prior to AREH or any affiliate taking action with respect to
such acquisition, the general partners of the Partnership owning such assets,
businesses or properties or their affiliates have publicly announced such
Partnership's intention to offer such assets, businesses or properties for sale
or to solicit offers for the purchase thereof or have retained a broker for such
purpose.
(c) For purposes of this agreement, "Standstill Expiration
Date", with respect to any Partnership, shall mean the earliest to occur of: (i)
the third anniversary of the date hereof; (ii) the date of a Default (as
hereinafter defined) by Presidio in its obligation to purchase Units of such
Partnership pursuant to the buy/sell agreements set forth in section 4 hereof;
and (iii) the closing date of the purchase by Olympia and/or any affiliate of
Units from Presidio pursuant to the buy/sell agreements set forth in section 4
hereof.
7
<PAGE>
3. RESTRICTIONS ON TRANSFER
3.1 TRANSFERS TO BE MADE ONLY AS PERMITTED OR REQUIRED
BY THIS AGREEMENT.
Olympia and its affiliates shall not, directly or indirectly, sell, assign,
transfer, pledge or otherwise encumber or dispose of (collectively, "transfer")
any Units any of them acquires pursuant to the Offers, except as specifically
permitted or required by this agreement. Any other purported transfer shall be
void and of no effect. The foregoing provisions shall not be deemed to prohibit
(a) the transfer of the capital stock or other equity interest in Olympia, AREH
or any of their respective affiliates in circumstances in which the principal
purpose of such transfer is not to dispose of Units or otherwise to circumvent
the intent of this agreement; or (b) the pledge of any Units acquired pursuant
to the Offers or any capital stock or other equity interest in Olympia, AREH or
any such affiliates from being pledged to collateralize or otherwise support
general corporate or partnership obligations of Olympia, AREH or such affiliate
existing of the date or incurred during the term of this agreement, PROVIDED
that the foregoing shall not relieve Olympia, AREH or such affiliate from its
obligations to fully perform its undertakings hereunder and PROVIDED FURTHER
that any direct pledgee of Units shall agree to be bound by the provisions of
this agreement to the same extent as Olympia is so bound as a condition to
foreclosing upon such Units.
3.2 PERMITTED TRANSFERS. Olympia and its affiliates
may, at any time or from time to time, transfer some or all of the Units
they acquire pursuant to the Offers (or the right to acquire Units pursuant
to the Offers) to any of their affiliates (Olympia and each such affiliate
being hereinafter referred to as a "Permitted Transferee"). No transfer to
a Permitted Transferee shall be effective, however, unless the Permitted
Transferee agrees, in a writing that is reasonably satisfactory to Presidio,
<PAGE>
to be bound by all the terms of this agreement to the same extent that Olympia
and AREH are so bound.
3.3 TERMINATION OF RESTRICTIONS. The provisions of section 3.1
shall terminate, as to a Partnership, on the earlier to occur of: (a) the third
anniversary of this agreement; or (b) the closing of any purchase of Units of
such Partnership by Olympia or an affiliate upon exercise of the buy/sell
provisions set forth in section 4 hereof. In addition, the provisions of section
3.1 shall not apply to any of the Partnerships at any time following the
occurrence and during the continuance of a Default by Presidio in its obligation
to purchase Units of one or more Partnerships upon exercise of the buy/sell
provisions set forth in section 4 hereof. If Units are transferred to a third
party other than a Permitted Transferee at any time when the restrictions on
transfer do not apply (as provided in the immediately preceding sentence) or
transferred to any third party following the termination of such restrictions,
the transferee will not be bound by any of the obligations applicable to the
transferor of such Units under this Agreement.
4. CALL; BUY/SELL
4.1 CALL. At any time after the Final Expiration Date
and before the ninety- first day following the Final Expiration Date,
Presidio shall have the option (the "Call Option") to purchase 50% (but not
less than 50%) of the Units in each Partnership acquired pursuant to the Offers
by Olympia and its affiliates for a price determined in accordance with
schedule 4.1. The Call Option will be exercisable only by written notice by
Presidio to Olympia and AREH, which notice must be given, if at all, prior to
the expiration of such option.
4.2 BUY/SELL. (a) Either Olympia or Presidio may
initiate buy/sell procedures with respect to one or more Partnerships at any
time commencing on the Buy/Sell Effective Date (as hereinafter defined)
<PAGE>
through and including the Standstill Expiration Date. Anything herein to the
contrary notwithstanding, buy/sell procedures may not be instituted more than
once with respect to any Partnership (except that the delivery of a Buy/Sell
Offer that is rescinded pursuant to section 4.2(d) hereof shall not
constitute the institution of buy/sell procedures for this purpose). Such
buy/sell procedures shall cover, in the case of Olympia, all Units of a
Partnership acquired by Olympia and/or any Permitted Transferee pursuant to an
Offer (other than Units purchased by Presidio upon exercise of the Call
Option) and all other Units owned by Olympia or any affiliate of Olympia
at the time the buy/sell procedures are initiated (collectively, the
"Olympia Covered Units") and, in the case of Presidio, all Units of such
Partnership acquired by Presidio or any affiliate of Presidio upon exercise of
the Call Option (collectively, the "Presidio Covered Units").
(b) Either Olympia or Presidio may initiate the buy/sell
procedures with respect to one or more Partnerships by delivering to the other a
written offer (the "Buy/Sell Offer") stating the buy/sell price on a per
Unit/per Partnership basis (which buy/sell price shall be payable solely in cash
and shall not exceed, for any Partnership, the net asset value per Unit for such
Partnership as of the date of the Buy/Sell Offer (the "Maximum Price")) and
other material terms and conditions on which the initiating party is willing to
purchase all, but not less than all, Olympia Covered Units or Presidio Covered
Units, as the case may be, of such Partnership. The non- initiating party shall
then be obligated to elect to sell Units to the initiating party at the per Unit
price and upon the other terms and conditions set forth in the Buy/Sell Offer,
or to purchase Units from the initiating party upon such terms and conditions.
(If the Buy/Sell Offer relates to more than one Partnership, the non-initiating
party may, in its discretion, elect to buy Units of one Partnership and sell
<PAGE>
Units of another, subject to Section 4.2(c) below). The non-initiating party
shall have fifteen days from the date the Buy/Sell Notice is delivered to it
(the "Reply Period") to decide whether to buy or sell. Failure to notify
the initiating party of such decision at or prior to the end of the Reply
Period shall be deemed a decision to buy Units. Notwithstanding the foregoing,
in the event that the non-initiating party wishes to buy Units of a Partnership
but believes that the buy/sell price named in the Buy/Sell Offer exceeds the
Maximum Price for such Partnership, the non-initiating party shall notify the
initiating party during the Reply Period of its election to buy such Units at
the Maximum Price, which notice (the "Appraisal Notice") shall set forth
the Maximum Price (in the opinion of the non-initiating party) and shall name
an appraiser with a minimum of ten years experience in the appraisal of
properties of the type owned by the Partnership(s) whose Units are subject to
appraisal (a "Qualified Appraiser"). If the parties cannot agree upon the
Maximum Price, the initiating party shall name a Qualified Appraiser (and shall
so notify the non-initiating party in writing) within ten days following its
receipt of the Appraisal Notice, and the two Qualified Appraisers shall choose a
third impartial Qualified Appraiser (the "Impartial Appraiser") within ten days
following selection of the second Qualified Appraiser. If the initiating party
fails timely to select (and to notify the non-initiating party of its selection
of) a Qualified Appraiser in accordance the immediately preceding sentence, the
Qualified Appraiser selected by the non-initiating party shall select the
Impartial Appraiser. The Impartial Appraiser so selected shall perform an
appraisal to determine the Maximum Price of Units of the Partnership(s) subject
to the dispute between the parties and shall present the results of such
appraisal and his determination of the Maximum Price to the parties in writing
within 90 days following such appraiser's selection. The determination of such
Impartial Appraiser shall be final and binding on the parties hereto. Each
<PAGE>
party shall bear any costs and expenses of the Qualified Appraiser selected by
such party and Presidio shall bear 50% and AREH shall bear 50% of the costs
and expenses of the Impartial Appraiser.
(c) If Presidio or an affiliate does not exercise the Call
Option with respect to one or more Partnerships (and, as a result, there are no
Presidio Covered Units of such Partnership(s)) or if, at the time buy/sell
procedures are initiated, Presidio and its affiliates collectively own more than
15% of the outstanding Units of the Partnership(s) with respect to which such
buy/sell procedures are initiated, then, notwithstanding the provisions of
section 4.2 hereof to the contrary: (i) if AREH or an affiliate initiates
buy/sell procedures with respect to such Partnership(s), AREH or such affiliate
may require Presidio to buy the Units of such Partnership(s) covered by AREH's
or such affiliate's Buy/Sell Offer at the Maximum Price then applicable to such
Units, and (ii) if Presidio initiates buy/sell procedures with respect to such
Partnership(s), AREH and its affiliates may, in their discretion, elect to sell
the Units covered by Presidio's Buy/Sell Offer at the Maximum Price then
applicable to such Units or to retain such Units. The appraisal procedures set
forth in paragraph (b) above shall apply to buy/sell procedures governed by this
paragraph (c), if applicable.
(d) As used herein, "Buy/Sell Effective Date" shall mean, as
to Units of any Partnership, the earlier to occur of: (a) the six-month
anniversary of the Final Expiration Date; and (b) the date on which Presidio
gives notice (in accordance with Section 8.7 hereof) to Olympia and AREH of a
proposal by or on behalf of the general partners of any Partnership or any
affiliate of such general partners to effect a "roll-up" transaction (within the
meaning of Item 901 of Regulation S-K promulgated by the Commission under the
Exchange Act) involving such Partnership (it being agreed by Presidio that
it will not permit any such "roll-up" transaction to be consummated less
than sixty days following the giving of such notice (in accordance with
Section 8.7 hereof) to Olympia and AREH). Any notice given pursuant to clause
(b) of the immediately preceding sentence shall set forth, in reasonable
detail, all material terms of the "roll-up" transaction being proposed.
Notwithstanding the foregoing, in the event that Presidio makes a Buy/Sell
Offer at a time when either the purchase or sale of Units by Olympia or its
affiliates pursuant to the buy/sell procedures set forth in this section 4
would cause Olympia or any such affiliate to incur liability under Section
16(b) of the Exchange Act, Olympia may so notify Presidio (which notice
shall state the earliest date (the "Trigger Date") on which Olympia or such
affiliate could commit either to purchase or sell Units without incurring such
liability, provided that such Trigger Date shall not be more than six months
and one day following the date of Presidio's Buy/Sell Offer), in which event
Presidio's Buy/Sell Offer shall be deemed to be rescinded for all purposes of
this agreement, and Presidio may not initiate another Buy/Sell Offer prior
to the Trigger Date. Olympia may not cause a Buy/Sell Offer to be rescinded
pursuant to this section 4.2(c) more than once.
4.3 CLOSING. The closing of any purchase and sale
of Units of a Partnership upon exercise of the Call Option or pursuant to the
buy/sell procedures, as the case may be, shall be held in New York City during
normal business hours at a place and date specified by Presidio in writing
to Olympia and AREH, but not fewer than 10 days or more than 30 days after:
(x) the exercise of the Call Option or with respect to such Partnership; or
(y) the end of the Reply Period following delivery of a Buy/Sell Offer
covering such Partnership (or, if an Appraisal Notice is timely given relating
to Units of such Partnership, then the final determination by the Impartial
<PAGE>
Appraiser of, or the mutual agreement of the parties as to, the Maximum Price).
Once scheduled, such closing shall not be postponed or adjourned except by
mutual consent of the parties hereto. At such closing, (a) the party selling
Units shall deliver to the party purchasing Units instruments of transfer with
respect to the Units being sold, which instruments shall be substantially in the
form set forth in schedule 4.3, and (b) the party purchasing Units shall pay the
full purchase price for the Units being purchased by wire transfer of
immediately available funds to an account specified in writing by party selling
Units at least two days before the closing. As used herein, a "Default" by
Presidio in its obligation to purchase Units upon exercise of the buy/sell
procedures means the failure by Presidio timely to schedule a closing for such
purchase as required by this section 4.3 or to pay the full purchase price for
any or all of the Units required to be purchased by Presidio at such closing in
the manner required by this section, provided that Olympia and/or any Olympia
affiliate owning the Units required to be purchased at such closing are ready,
willing and able to perform their obligations to transfer such Units to
Presidio. Anything herein to the contrary notwithstanding, if, between the date
a Buy/Sell Offer is made and the date of the closing pursuant to this section
4.3, a transaction has been consummated as a result of which the Units required
to be transferred at such closing (and all other Units of the subject
Partnership) have been exchanged for or converted into another security, the
party required to sell such Units shall deliver at the closing the securities so
received by it in connection with such exchange or conversion and the purchase
price payable to such party shall be unaffected by such exchange or conversion.
5. AGREEMENT TO VOTE. If, at any time or from time to time
before the Standstill Expiration Date, the general partners of a Partnership
submit to the limited partners of that Partnership a proposal that would
<PAGE>
result in such limited partners receiving securities that, upon consummation
of the proposal, are listed on a national securities exchange or NASDAQ,
AREH shall cause all the Units in that Partnership owned by AREH or any
affiliate of AREH and not theretofore purchased by Presidio to be voted in favor
of the proposal.
6. NEUTRALITY. Presidio will not, and will not cause or permit
its affiliates to, take any action that would result in the conditions to the
Offers set forth in Section 14 of each Offer to Purchase not to be satisfied and
will not, and will not cause or permit its affiliates to, actively oppose the
Offers, but rather will take, and will cause its affiliates to take, a neutral
stance with respect thereto, except that in the case of (i) a competing third
party bid (i.e., a bid made by or on behalf of a party other than AREH or an
affiliate or Presidio or an affiliate that is not topped by Olympia) made prior
to the expiration date of the Offers or (ii) the occurrence of any event
materially adversely affecting the Offers, Presidio or any affiliate of Presidio
may change any recommendation they have made to limited partners with respect to
the Offers to reflect such competing bid or the occurrence of such event. In
furtherance and not in limitation of the foregoing, Presidio will cause the
general partners of the Partnerships to admit Olympia or a Permitted Transferee
as a limited partner of each Partnership in which it purchases Units pursuant to
an Offer upon delivery of each Partnership's standard transfer paperwork, such
admission to be effective as of the first day of the calendar quarter next
following the date of such delivery by Olympia. Presidio shall cause each of the
Partnerships to waive applicable transfer fees in connection with transfers to
Olympia or a Permitted Transferee of Units acquired pursuant to the Offers.
7. TERMINATION. (a) Anything herein to the contrary
notwithstanding, Olympia and AREH shall have the right to terminate this
<PAGE>
agreement, by giving written notice of such termination to Presidio (without
any liability on the part of any party hereto to any other party hereto,
other than liability for breaches occurring prior to such termination), in
the event that Presidio and/or any affiliate of Presidio fails or refuses to
comply with (a) any comment made by the staff of the Commission to amend the
Offers to the extent necessary to include Presidio and/or affiliate of
Presidio as co-bidders and to make any related disclosures in the Offering
Materials or (b) any other reasonable comment made by the staff relating to
the Offers which comment applies to and contemplates the taking of certain
action or making certain disclosures by Presidio and/or any affiliate of
Presidio (and, in the case of clause (a) or (b) above, after counsel for
Presidio has had reasonable opportunity to persuade the staff of the
correctness of Presidio's position on such matter, if different than that of
the staff). The obligations of Presidio pursuant to section 6 hereof will
survive such termination.
(b) Anything herein to the contrary notwithstanding, Presidio shall
have the right to terminate this agreement (without any liability on the part of
any party hereto to any other party hereto, other than liability for breaches
occurring prior to such termination), by giving written notice of such
termination to AREH and Olympia, at any time on or after the sixty-first day
following the entry of an Injunction (but in no event prior to June 11, 1998),
provided that the Final Expiration Date has not occurred and such Injunction
remains in effect on the date Presidio terminates such agreement.
8. MISCELLANEOUS
8.1 DEFINITIONS. As used in this agreement: the
terms "affiliate" and "control" have the respective meanings given them in Rule
12b-2 under the Exchange Act; the terms "beneficially own," "beneficial
<PAGE>
ownership" and "group" have the respective meanings given them in Rule 13d-3
under the Exchange Act; the term "Partnership" refers to each of the
Partnerships (as defined in the preface to this agreement) and also includes
each entity whose securities are issued to limited partners of a Partnership
pursuant to a transaction of the type described in section 5 hereof; and
the term "Unit" refers to Units of each Partnership (as defined in the preface
to this agreement) and also includes any securities of the type described
in section 5 hereof issued to limited partners of a Partnership in exchange
for Units.
8.2 BENEFIT. This agreement shall be binding upon,
and inure to the benefit of, the respective successors and assigns of the
parties. Notwithstanding the foregoing, no party may assign its rights or
obligations under this Agreement without obtaining the prior written consent
of the other parties; PROVIDED, HOWEVER, that any party may assign its right
or obligation to purchase or sell Units pursuant to Section 4 hereof,
provided that such assignment will not relieve the assigning party of any
liability hereunder.
8.3 GOVERNING LAW; JURISDICTION. This agreement
shall be governed by and construed in accordance with the law of the state of
New York applicable to agreements made and to be performed wholly in New York.
Any litigation based on, or arising out of, under or in connection with
this Agreement or the consummation of the transactions contemplated
hereby shall be brought and maintained exclusively (to the extent permitted
under applicable law) in the courts of the State of New York, New York
County or in the United States District Court for the Southern District of
New York. The parties expressly and irrevocably submit to the jurisdiction of
the courts of the State of New York, New York County, and of the United
States District Court for the Southern District of New York for the purpose
of any such litigation as set forth above and irrevocably agree to be bound by
<PAGE>
any judgment rendered thereby in connection with such litigation. Each of the
parties irrevocably consents to the service of process by registered mail,
postage prepaid, or by personal service within or without the State of New
York.
8.4 REMEDIES. The parties to this agreement will be
irreparably damaged if this agreement is not specifically enforced. If any
dispute arises under this agreement concerning any transfer of Units or any
other right or obligation, that right or obligation shall be enforceable
in a court of equity by an injunction or a decree of specific
performance without any bond or other security being required. These
remedies shall not be exclusive, and shall be in addition to any other remedies
the parties may have.
8.5 SEPARABILITY. If any provision of this
agreement, or the application of any provision to any person or
circumstance, shall for any reason or to any extent be invalid or
unenforceable, the remainder of this agreement and the application of that
provision to other persons or circumstances shall not be affected, but shall
be enforced to the full extent permitted by law.
8.6 WAIVER. The failure of a party to insist upon
strict adherence to any term of this agreement on any occasion shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this agreement.
Any waiver must be in writing.
8.7 NOTICES. Any notice or other communication
under this agreement shall be in writing and shall be considered given when
delivered by hand. Notice may also be given by electronic facsimile
transmission, but in such case will be deemed given only when received by the
addressee. Notices shall be directed to the parties at their respective
addresses set forth below (or such other address as the party to be notified may
<PAGE>
have requested in writing):
(a) if to Presidio, to it c/o Northstar Capital Partners LLC, 527 Madison
Avenue, New York, New York 10022, Attn: Richard Sabella (Tel. No.
(212)319-3400; Fax No. (212)319-4557), with a copy to: Edward W. Kerson, Esq.,
Proskauer Rose LLP, 1585 Broadway, New York, New York 10036 (Tel. No.
(212)969-3290; Fax No. (212)969-2900) ; and (b) if to AREH or Olympia, to it c/o
Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153,
Attn: Martin L. Hirsch (Tel. No. (212)702-4343; Fax No. (212)750-5841) with a
copy to: Theodore Altman, Esq., Gordon Altman Butowsky Weitzen Shalov & Wein,
114 W.47th Street, New York, New York 10036 (Tel. No. (212)626-0812; Fax No.
(212)626-0799).
8.8 COUNTERPARTS. This agreement may be executed in
counterparts, each of which shall be considered an original, but both of
which together shall constitute the same instrument.
8.9 COMPLETE AGREEMENT. This agreement contains a
complete statement of all the arrangement between the parties with respect to
its subject matter, supersedes all existing agreements between them relating to
that subject matter and cannot be changed or terminated orally. Except as
expressly set forth herein, there are no contracts, arrangements,
understandings or relationships between the parties hereto with respect to the
Units.
8.10 JOINT AND SEVERAL LIABILITY.
AREH shall be jointly and severally liable for the obligations of AREH and of
its affiliates (including Olympia) hereunder (and, in this regard, any action
or inaction required hereunder to be taken or not taken, or which AREH is
required to cause or prevent or not permit by such affiliate shall be deemed to
be an obligation of both such affiliate and AREH hereunder), and Presidio shall
have the right to enforce this Agreement with respect to all such matters
<PAGE>
directly against AREH, without first being required to file suit or seek
recourse of any kind against any other person. Presidio shall be jointly and
severally liable for the obligations of Presidio and its affiliates (including
the general partners of each Partnership) hereunder (and, in this regard, any
action or inaction required hereunder to be taken or not taken, or which
Presidio is required to cause or prevent or not permit by such affiliate
shall be deemed to be an obligation of both such affiliate and Presidio
hereunder), and AREH and Olympia shall have the right to enforce this
Agreement with respect to all such matters directly against Presidio,
without first being required to file suit or seek recourse of any kind against
any other person.
8.11 DELIVERY OF OFFERING MATERIALS. Presidio hereby agrees on
behalf of the Partnerships and their general partners that, for purposes of
compliance by Olympia (and any affiliates who are co-bidders in the Offers) with
Rule 14d-3(a)(2) and (b) of the Rules, Olympia may hand deliver a copy of its
Schedule 14D-1's together with all exhibits thereto and any amendments thereto
to the Partnerships c/o Edward W. Kerson, Esq., Proskauer Rose, LLP, 1585
Broadway, New York, New York 10036 and shall send a copy of such materials to
the Partnerships at their principal executive offices for delivery on the next
business day.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this agreement
to be executed by their duly authorized representatives as of the date first
above written.
PRESIDIO CAPITAL CORP.
By: /s/ Richard Sabella
-----------------------
Name: Richard Sabella
Title:
OLYMPIA INVESTORS, L.P.
By: Olympia-GP, Inc.
By: /s/ Martin L. Hirsch
-----------------------
Name: Martin L. Hirsch
Title: Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P.
By: American Property Investors, Inc.
By: /s/ Martin L. Hirsch
-----------------------
Name: Martin L. Hirsch
Title: Vice President
[Signature Page of Agreement, dated March 6, 1998, among Presidio Capital
Corp., Olympia Investors, L.P. and American Real Estate Holdings L.P.]
21
<PAGE>
Schedule 4.1
The purchase price per Unit payable upon exercise of the Call Option will be the
sum of : (i) the Purchase Price per Unit (as hereinafter defined); and (ii)
Expenses per Unit (as hereinafter defined). The Purchase Price per Unit will
equal the lesser of (A) the price per Unit paid by Olympia in the Offers or (B)
$110.68 per Unit for Units of HEP 85, $99.97 per Unit for Units of HEP86, and
$124.13 per Unit for Units of HEP 88. Notwithstanding the foregoing, in the
event that Olympia increases its offering price per Unit in order to equal or
top a competing bidder, then the Purchase Price per Unit will equal the price
per Unit paid by Olympia in the Offers. Expenses per Unit will equal (i) the sum
of all out-of-pocket costs and expenses incurred by Olympia and its affiliates
(including attorneys fees and expenses) with respect to the Offers and the
purchase and transfer to Olympia or an affiliate of Units purchased pursuant
thereto, including without limitation the fees and expenses of Beacon Hill
Partners (the information agent for the Offer)(including without limitation fees
and expenses incurred in connection with telephone calls to limited partners of
the Partnerships), Harris Trust Company (the depositary for the Offer), printing
and mailing expenses, Commission filing fees, and any out-of-pocket costs and
expenses attributable to the admission of Olympia or an affiliate as a
substitute limited partner (but will not include (x) any costs and expenses or
attorneys fees and expenses attributable to the negotiation, execution and
delivery of this agreement or any litigation arising out of or in connection
with this agreement or the Offers or (y) the Purchase Price per Unit) divided by
(ii) the total number of Units of the Partnerships purchased by Olympia and its
affiliates pursuant to the Offers.
22
Amendment No. 1
to
Agreement
dated March 6, 1998
This Amendment No. 1 (the "Amendment"), dated as of May 20,
1998, amends the agreement, dated March 6, 1998 (the "Agreement"), among
Presidio Capital Corp., a corporation organized in the British Virgin Islands
("Presidio"), American Real Estate Holdings, L.P., a Delaware limited
partnership ("AREH") and Olympia Investors, L.P., a Delaware limited partnership
("Olympia"). Capitalized terms used herein and not otherwise defined will have
the meanings ascribed to them in the Agreement.
In response to comments received from the Staff of the
Commission on April 2, 1998 relating to the Schedule 14D-1's filed by Olympia,
AREH and certain of their affiliates (collectively, the "Olympia Bidders")
relating to the Offers, Presidio and certain of its affiliates (collectively,
the "Presidio Bidders") and the Olympia Bidders propose to file amendments to
the Schedule 14D-1's pursuant to which, among other things, the Presidio Bidders
will be added as co-bidders. For purposes of this Amendment, the Schedule
14D-1's, as amended as described in the preceding sentence and as the same may
be further amended from time to time, are hereinafter referred to as the
"Amended Schedule 14D-1's.
The parties agree as follows:
1. The following paragraph is hereby added as Section 8.12 to
the Agreement:
"8.12 AREH shall indemnify and hold harmless the Presidio Bidders, and
Presidio shall indemnify and hold harmless the Olympia Bidders, against
any loss, claim, damage or liability, or any action in respect thereof
(including the reasonable fees and expenses of counsel) to which the
Presidio Bidders or the Olympia Bidders, as the case may be, may become
subject, insofar as such loss, claim, damage, liability or action
arises out of or is based upon any violation of the Williams Act, any
untrue statement of a material fact included in the Amended Schedules
14D-1 or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only to the extent that any such loss, claim, damage,
liability or action is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission, made in reliance upon and
in conformity with information furnished by the Olympia Bidders or the
Presidio Bidders, as the case may be, relating to themselves, their
affiliates and associates (including without limitation information
relating to their respective future plans with respect to the
Partnerships, including any "roll up" transaction (within the meaning
of Item 901 of Regulation S-K promulgated by the Commission under the
Exchange Act) that they or their affiliates may propose in the future
involving one or more Partnerships, their purpose for acquiring Units
and analysis of the valuation of the Units) for inclusion in such
<PAGE>
Amended Schedules 14D-1. Information pertaining to the business
and operations of the Partnerships, Partnership historical
financial information, the trading history of the Units and the
description of this agreement and any amendments hereto will not be
deemed to have been furnished by the Olympia Bidders or the Presidio
Bidders for purposes of this Section 8.12. Without limiting the
generality of the foregoing, Presidio shall indemnify and hold
harmless the Olympia Bidders against any loss, claim, damage or
liability or any action in respect thereof (including the reasonable
fees and expenses of counsel) to which the Olympia Bidders may become
subject, insofar as such loss, claim, damage, liability or action
arises out of or is based upon any failure of the Amended Schedules
14D-1 to comply with the requirements of Section 14(h) of the Exchange
Act or related rules promulgated by the Commission and such failure to
comply neither arises out of nor is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission, made in
reliance upon and in conformity with information furnished by the
Olympia Bidders relating to themselves, their affiliates and associates
for inclusion in the Amended Schedules 14D-1."
.
2. All references in the Agreement to "the agreement" or "this
agreement" shall hereinafter be deemed to refer to the Agreement as amended by
this Amendment. Except as expressly amended hereby, the Agreement shall remain
in full force and effect as originally executed by the parties.
[text continued on next page]
<PAGE>
3. The provisions of Section 8.3 of the Agreement are
incorporated by reference herein as if fully set forth herein, except that, for
purposes of this Amendment, all references to "the agreement" in said Section
shall be deemed to refer to this Amendment.
4. This Amendment may be executed in counterparts, each of
which shall be considered an original, but both of which together shall
constitute the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Amendment
to be executed by their duly authorized representatives as of the date first
above written.
PRESIDIO CAPITAL CORP.
By: /S/ ALLAN B. ROTHSCHILD
Allan B. Rothschild
Authorized Signatory
OLYMPIA INVESTORS, L.P.
By: Olympia-GP, Inc.
By: /S/ MARTIN L. HIRSCH
Martin L. Hirsch
Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P.
By: American Property Investors, Inc.
By: /S/ MARTIN L. HIRSCH
Martin L. Hirsch
Vice President
Amendment No. 2
to
Agreement
dated March 6, 1998
This Amendment No. 2 (the "Amendment"), dated as of June
29, 1998, amends the agreement, dated March 6, 1998 (the
"Agreement") and as amended by Amendment No. 1 thereto, dated as of
May 20, 1998 ("Amendment No. 1"), among Presidio Capital Corp., a
corporation organized in the British Virgin Islands ("Presidio"),
American Real Estate Holdings, L.P., a Delaware limited partnership
("AREH") and Olympia Investors, L.P., a Delaware limited partnership
("Olympia"). Capitalized terms used herein and not otherwise
defined will have the meanings ascribed to them in the Agreement.
The parties agree as follows:
1. The following proviso is hereby added to the end of Section
5 of the Agreement:
"; provided, however, that AREH shall have no obligation to cause Units
of a Partnership to be voted in favor of any proposal otherwise covered
by this Section 5 if such proposal (a) is made prior to the first
anniversary of the completion of the Offer relating to such Partnership
and (b) relates to a transaction or series of related transactions
constituting a "roll-up transaction" (within the meaning of Regulation
S-K, Item 901), other than a proposal for the conversion of such
Partnership into a stand-alone (i.e., not part of another entity or
entities), actively traded, real estate investment trust pursuant to
Section 3(a)(10) of the Securities Act of 1933, where the terms and
conditions of the transaction, or series of related transactions,
including any related tender offer for Units or any sale or financing
of Partnership properties, are approved, after a hearing upon the
fairness of such terms and conditions at which all limited partners
have the right to appear, by the court in connection with a settlement
of the litigation described in Item 4, paragraph 12 of the Schedules
14D-9 filed by HEP 85 and HEP 88 in connection with the Offers for
Units of those Partnerships and in Item 4, paragraph 11 of the Schedule
14D-9 filed by HEP 86 in connection with the Offer for Units of HEP
86."
.
2. All references in the Agreement and in Amendment No. 1 to
"the agreement" or "this agreement" shall hereinafter be deemed to refer to the
Agreement as amended by Amendment No. 1 and by this Amendment. Except as
expressly amended by Amendment No. 1 and hereby, the Agreement shall remain in
full force and effect as originally executed by the parties.
<PAGE>
3. The provisions of Section 8.3 of the Agreement are
incorporated by reference herein as if fully set forth herein, except that, for
purposes of this Amendment, all references to "the agreement" in said Section
shall be deemed to refer to this Amendment.
4. This Amendment may be executed in counterparts, each of
which shall be considered an original, but both of which together shall
constitute the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Amendment
to be executed by their duly authorized representatives as of the date first
above written.
PRESIDIO CAPITAL CORP.
By: /S/ ALLAN B. ROTHSCHILD
Allan B. Rothschild
Authorized Signatory
OLYMPIA INVESTORS, L.P.
By: Olympia-GP, Inc.
By: /S/ MARTIN L. HIRSCH
Martin L. Hirsch, Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P.
By: American Property Investors, Inc.
By: /S/ MARTIN L. HIRSCH
Martin L. Hirsch, Vice President
Amendment No. 3
to
Agreement
dated March 6, 1998
This Amendment No. 3 (the "Amendment"), dated as of July 16,
1998, amends the agreement, dated March 6, 1998 (the "Agreement") and as amended
by Amendment No. 1 and Amendment No. 2 thereto, dated as of May 20, 1998 and
June 29, 1998, respectively, by and among Presidio Capital Corp., a corporation
organized in the British Virgin Islands ("Presidio"), American Real Estate
Holdings, L.P., a Delaware limited partnership ("AREH"), and Olympia Investors,
L.P., a Delaware limited partnership ("Olympia"). Capitalized terms used herein
and not otherwise defined will have the meanings ascribed to them in the
Agreement.
The parties agree as follows:
1. Notwithstanding anything in the Agreement to the contrary,
the Offers shall be extended until 5:00 p.m. on Friday, July 24, 1998.
2. All references in the Agreement and in Amendment No. 1 and
Amendment No. 2 to "the agreement" or "this agreement" shall hereinafter be
deemed to refer to the Agreement as amended by Amendment No. 1, Amendment No. 2
and this Amendment. Except as expressly amended by Amendment No. 1, Amendment
No. 2 and hereby, the Agreement shall remain in full force and effect as
originally executed by the parties.
<PAGE>
3. This Amendment may be executed in counterparts, each of
which shall be considered an original, but both of which together shall
constitute the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Amendment
to be executed by their duly authorized representatives as of the date first
above written.
PRESIDIO CAPITAL CORP.
By: /S/ ALLAN B. ROTHSCHILD
Allan B. Rothschild
Authorized Signatory
OLYMPIA INVESTORS, L.P.
By: Olympia-GP, Inc.
By: /S/ MARTIN L. HIRSCH
Martin L. Hirsch, Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P.
By: American Property Investors, Inc.
By: /S/ MARTIN L. HIRSCH
Martin L. Hirsch, Vice President
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange
Act of 1934, as amended, the persons named below agree to the joint filing on
behalf of each of them of statements on Schedule 13D (including amendments
thereto) with respect to the units of limited partnership interest in each of
Integrated Resources High Equity Partners, Series 85, High Equity Partners, L.P.
- - Series 86 and High Equity Partners, L.P. - Series 88 and further agree that
this Joint Filing Agreement be included as an Exhibit to such joint filings. In
evidence thereof, the undersigned, being duly authorized, have executed this
Joint Filing Agreement this 5th day of August, 1998.
OLYMPIA INVESTORS, L.P. OLYMPIA-GP, INC.
By: Olympia-GP, Inc., its
general partner By: /S/HENRY J. GERARD
Name: Henry J. Gerard
By: /S/HENRY J. GERARD Title: Vice President
Name: Henry J. Gerard
Title: Vice President
AMERICAN REAL ESTATE HOLDINGS, L.P. AMERICAN PROPERTY INVESTORS, INC.
By: American Property Investors,
Inc., its general partner By: /S/JOHN P. SALDARELLI
Name: John P. Saldarelli
Title: Vice President
By: /S/JOHN P. SALDARELLI
Name: John P. Saldarelli
Title: Vice President
LONGACRE CORP. CARL C. ICAHN
By: /S/ROBERT J. MITCHELL By: /S/THEODORE ALTMAN
Name: Robert J. Mitchell Theodore Altman
Title: Vice President Attorney-In-Fact
[Joint Filing Agreement for Schedule 13D with respect to Integrated Resources
High Equity Partners, Series 85, High Equity Partners, L.P. - Series 86 and High
Equity Partners, L.P. - Series 88]
POWER OF ATTORNEY
KNOW EVERYONE BY THESE PRESENTS, which are intended to
constitute a Power of Attorney, that I, CARL C. ICAHN, residing at Museum
Towers, 15 W. 53rd Street, Apt. 51C, New York, N.Y., do hereby appoint THEODORE
ALTMAN, residing at 94 Haights Cross Road, Chappaqua, New York
MY ATTORNEY-IN-FACT TO ACT: As Attorney-In-Fact for the
limited purpose of executing (i) statements on Schedule 14D-1 and all amendments
thereto in connection with those certain tender offers with respect to each of
Integrated Resources High Equity Partners, Series 85, High Equity Partners L.P.
- - Series 86 and High Equity Partners L.P. - Series 88; (ii) statements on
Schedule 13D and all amendments thereto, in connection with the beneficial
ownership of Units in Integrated Resources High Equity Partners, Series 85, High
Equity Partners L.P. - Series 86 and High Equity Partners L.P. - Series 88,
including joint filing agreements in connection therewith; and (iii) Forms 3,4
and 5, and all amendments thereto, in connection with the beneficial ownership
of Units in Integrated Resources High Equity Partners, Series 85, High Equity
Partners L.P. - Series 86 and High Equity Partners L.P. - Series 88.
To induce any third party to act hereunder, I hereby agree
that any third party receiving a duly executed copy or facsimile of this
instrument may act hereunder, and that revocation or termination hereof shall be
ineffective as to such third party unless and until actual notice or knowledge
of such revocation or termination shall have been received by such third party.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of May, 1998.
/S/ CARL C. ICAHN
Carl C. Icahn
STATE OF NEW YORK }
COUNTY OF NEW YORK }
On May 20, 1998 before me, , the undersigned officer,
personally appeared CARL C. ICAHN, known personally to me to be the individual
described in and who executed the foregoing instrument and acknowledged that he
executed the same.
/S/ ROBYN G. STEINBERG
Notary Public
[SEAL]
[Power of Attorney to sign SEC filings related to the High Equity Tender Offers]
