EFTA00583425.pdf

SEPTEMBER 13, 2011 DRAFT REDEMPTION AGREEMENT AGREEMENT, dated as of , 2011, by and among DANIEL B. ZWIRN, an individual having an office at Zwim Family Interests, LLC, 595 Madison Ave., 33rd Floor, New York, NY 10022 ("Seller"), CORBIN CAPITAL PARTNERS, L.P., a Delaware limited partnership ("CCP LP), CORBIN CAPITAL PARTNERS MANAGEMENT, LLC, a Delaware limited liability company ("CCPM LLC; and CCP LP and CCPM LLC, collectively, the "Corbin Entities"), and JEFFREY EPSTEIN, an individual having an office at Financial Trust Company, Inc., 6100 Red Hook Quarter, Suite B-3, St. Thomas, USVI 00802 ("Epstein"). RECITALS: A. Seller is a limited partner in CCP LP. CCP LP is governed by that certain Second Amended and Restated Limited Partnership Agreement, dated as of May 1, 2007 (as the same may from time to time be amended, or amended and restated, and in effect, the "CCP LPA"). Corbin Capital Partners Group, LLC, a Delaware limited liability company, is the general partner of CCP LP (the "General Partner"). B. Seller is a non-managing member in CCPM LLC. CCPM LLC is governed by that certain Second Amended and Restated Limited Liability Company Agreement, dated as of May I, 2007 (as the same may from time to time be amended, or amended and restated, and in effect, the "CCPM LLC Agreement"). Corbin Capital Partners Asset Management, LLC, a Delaware limited liability company, is the managing member of CCPM LLC (the "Managing Member"). C. Seller's total interest as a limited partner in CCP LP consists of both an interest as a Foundation Partner (as defined in the CCP LPA) (the "Foundation LP Interest') and an interest as a Purchase Partner (as defined in the CCP LPA) (the "Purchase LP Interest"; and Seller's Foundation LP Interest and Purchase LP Interest collectively, the "CCP LP Interests"). The Foundation LP Interest represents, among other things, a 1.5% Incentive Percentage, a 1.5% Management Percentage and 1.5% Sale Percentage (as such terms are defined in the CCP LPA), and the Purchase LP Interest represents, among other things, a 3% Incentive Percentage, a 3% Management Percentage and 3% Sale Percentage (as such terms are defined in the CCP LPA). D. Seller's total interest as a non-managing member in CCPM LLC consists of both an interest as a Foundation Member (as defined in the CCPM LLC Agreement) (the "Foundation LLC Interest') and an interest as a Purchase Member (as defined in the CCPM LLC Agreement) (the "Purchase LLC Interest"; and Seller's Foundation LLC Interest and Purchase LLC Interest collectively, the "CCPM LLC Interests"). Seller's CCP LP Interests and CCPM LLC Interests are referred to collectively as the "Corbin Interests". The Foundation LLC Interest represents, among other things, a 1.5% Incentive Percentage, a 1.5% Management Percentage and 1.5% Sale Percentage (as such terms are defined in the CCPM LLC Agreement), and the Purchase LLC Interest represents, among other things, a 3% Incentive Percentage, a 3% Management Percentage and 3% Sale Percentage (as such terms are defined in the CCPM LLC Agreement). EFTA00583425  E. On July 25, 2011, Seller and Epstein entered into an agreement read into the record at an arbitration proceeding at the New York offices of JAMS before the Honorable Anthony J. Carpinello (the "JO, 25 Sale Agreement') that Seller would sell the Corbin Interests to Epstein, and Epstein would purchase the Corbin Interests from Seller, subject to the receipt of the required approvals for the sale of the Corbin Interests. F. Seller and the Corbin Entities have been involved in certain disputes relating to Seller's rights as a limited partner and member in the Corbin Entities. In the course of seeking the required consents to the sale of the Corbin Interests by Seller to Epstein, the Corbin Entities expressed their desire to purchase the Corbin Interests and refused to consent to the sale of the Corbin Interests to Epstein unless Epstein agreed to immediately sell the Corbin Interests to the Corbin Entities. G. Subject to the terms and conditions set forth herein, the parties desire to have (i) the Corbin Interests redeemed by the Corbin Entities, (ii) the proceeds from such redemption divided between Seller and Epstein in the manner set forth herein, (iii) Seller and the Corbin Entities grant each other mutual releases, and (iv) Seller and Epstein agree to cancel the July 25 Sale Agreement. NOW, THEREFORE, the Parties agree as follows: I. Definitions. The terms defined or referenced in Appendix A to this Agreement, whenever used herein, shall have the meanings set forth or referenced therein for all purposes of this Agreement. 2. Redemptions. Subject to the terms and conditions set forth in this Agreement, (i) Seller agrees to sell and assign to CCP LP, and CCP LP agrees to purchase from Seller, the CCP LP Interests, which consist of Seller's entire existing interest as a limited partner in CCP LP (both as a Foundation Partner and as a Purchase Partner), including his rights to and interest in capital of CCP LP and his rights to distributions from CCP LP from and after the Closing Date, but excluding his rights to any distributions paid by CCP LP prior to the Closing Date and his right to any indemnification from CCP LP pursuant to the CCP LPA whether payable before, on or after the date hereof, and (ii) Seller agrees to sell and assign to CCPM LLC, and CCPM LLC agrees to purchase from Seller, the CCPM LLC Interests, which consist of Seller's entire existing interest as a non-managing member in CCPM LLC (both as a Foundation Member and as a Purchase Member), including his rights to and interest in capital of CCPM LLC and his rights to distributions from CCPM LLC from and after the Closing Date, but excluding his rights to any distributions paid by CCPM LLC prior to the Closing Date and his right to any indemnification from CCPM LLC pursuant to the CCPM LLC Agreement whether payable before, on or after the date hereof. Upon the closing of the sale of the Corbin Interests in accordance with this Agreement, Seller shall withdraw as a limited partner of CCP LP and shall withdraw as a non- managing member of CCPM LLC. 2 EFTA00583426 3. Redemption Price and Payment. 3.1 Redemption Price. The purchase price for the Corbin Interests (the "Redemption Price") shall equal the sum of (i) the redemption price for the CCP LP Interests as determined by an independent appraiser (the "Appraiser") in the manner provided in Section 3.3 below (the "CCP LP Price") plus (ii) the redemption price for the CCP LP Interests as determined by the Appraiser in the manner provided in Section 3.3 below (the "CCPM LLC Price"), and the Redemption Price shall be payable by the Corbin Entities to Seller and Epstein on the Closing Date in the manner provided in Section 3.2 below. Seller is agreeing that a portion of the Redemption Price will be paid to Epstein in consideration for Epstein agreeing to the cancellation of the July 25 Sale Agreement. 3.2 Payment. The Redemption Price shall be paid by the Corbin Entities to Seller and Epstein as follows: (a) Division of Redemption Price Between Seller and Epstein. If the Redemption Price is less than $2,000,000, then (i) the first $1,000,000 of the Redemption Price shall be paid to Epstein and (ii) the balance of the Redemption Price shall be paid to Seller. If the Redemption Price is greater than or equal to $2,000,000, then (i) 50% of the Redemption Price shall be paid to Epstein and (ii) 50% of the Redemption Price shall be paid to Seller. Unless otherwise agreed by the Parties, CCP LP shall pay to Seller that portion of the CCP LP Price equal to the product of (x) the percentage of the Redemption Price that Seller is entitled to receive pursuant to the first two sentences of this Section 3.2(a) multiplied by (y) the CCP LP Price, and shall pay the balance of the CCP LP Price to Epstein, and CCPM LLC shall pay to Seller that portion of the CCPM LLC Price equal to the product of (x) the percentage of the Redemption Price that Seller is entitled to receive pursuant to the first two sentences of this Section 3.2(a) multiplied by (y) the CCPM LLC Price, and shall pay the balance of the CCPM LLC Price to Epstein. By way of illustration only: (1) if the CCP LP Price is determined by the Appraiser to be $1,000,000 and the CCPM LLC Price is determined by the Appraiser to be $4,000,000, then: (A) the Redemption Price would equal $5,000,000, (B) Seller would be entitled to 50% of the Redemption Price, or $2,500,000, and Epstein would be entitled to 50% of the Redemption Price, or $2,500,000, (C) CCP LP would pay 50% of the CCP LP Price to Seller and 50% of the CCP LP Price to Epstein, and CCPM LLC would pay 50% of the CCPM LLC Price to Seller and 50% of the CCPM LLC Price to Epstein, and (2) if the CCP LP Price is determined by the Appraiser to be $500,000 and the CCPM LLC Price is determined by the Appraiser to be $1,000,000, then: (A) the Redemption Price would equal $1,500,000, (B) Seller would be entitled to 33-1/3% of the Redemption Price, or $500,000, and Epstein would be entitled to 66-2/3% of the Redemption Price, or $1,000,000, (C) CCP LP would pay 33-1/3% of the CCP LP Price to Seller and 66-2/3% of the CCP LP Price to Epstein, and CCPM LLC would pay 33-1/3% of the CCPM LLC Price to Seller and 66-2/3% of the CCPM LLC Price to Epstein. (b) The portion of the Redemption Price payable to Epstein shall be paid to him on the Closing Date by wire transfer of immediately available federal funds to an account designated in writing by Epstein to the Corbin Entities, and the portion of the Redemption Price payable to Seller shall be paid to him on the Closing Date by wire transfer of immediately available federal funds to an account designated in writing by Seller to the Corbin Entities. 3 EFTA00583427  3.3 Determination of Redemption Price. (a) The Parties agree that shall act as the Appraiser and shall determine the CCP LP Price, the CCPM LLC Price, the Redemption Price and the allocation of the CCP LP Price and the CCPM LLC Price to various asset classes, all using the methodology described herein. The Appraiser shall be engaged by Seller and the Corbin Entities to make the determinations required herein in the manner contemplated herein, but the costs and expenses of the Appraiser shall be borne by, and shall be the sole responsibility of, the Corbin Entities. The Corbin Entities agree to give the Appraiser prompt, full and complete access to and copies of such information regarding the Corbin Entities and their business, performance, financial condition, assets, current and historical income and expenses and prospects (including, without limitation, audited and unaudited financial statements and the accountants' worksheets used in the preparation of such statements) as the Appraiser may reasonably request in order to perform its duties and make the determinations required hereunder. The Corbin Entities shall promptly furnish Mr. Zwim with copies of all information supplied by them to the Appraiser. (b) In order to arrive at the CCP LP Price and the CCPM LLC Price, the Appraiser shall first determine the value of each Corbin Entity as a going concern in a private market change of control transaction as of August 31, 2011 taking into account its financial condition, earnings, assets under management, prospects, investments and all other assets (including carried interests), and such other factors as of August 31, 2011 (and without regard to events occurring after August 31, 2011) as the Appraiser deems relevant and used as common factors in valuing similar companies in the investment management industry, including appropriate comparable private market transactions, appropriate public market comparables adjusted for a control transaction, discounted cash flow analysis assuming weighted average cost of capital ranges for potential acquirors, and any other valuation method it deems appropriate (the "Business Value"). Notwithstanding anything in the Corbin Entities' Constituent Instruments to the contrary, the Appraiser shall take into account the value of goodwill and all other intangible assets of the Corbin Entities in determining the value of each Corbin Entity as if the goodwill and intangible assets had a value and were freely transferrable. Once the Business Value of a Corbin Entity has been determined, the Appraiser shall determine the value of the Corbin Interests in that Corbin Entity by determining how much the owner of the Corbin Interests would receive from that Corbin Entity (on a pre-tax basis) assuming that Corbin Entity sold its entire business and assets in an all cash transaction for its Business Value, allocated the gain from the transaction to its partners or members in accordance with its Constituent Instruments and then liquidated and distributed all of its assets in accordance with the terms of its Constituent Instruments, and taking into account all the income and gain that has been and would have been (assuming the hypothetical sale of all of each Corbin Entity's assets for the Business Value of that Corbin Entity) allocated to Seller and all distributions that have been made to Seller under the Constituent Instruments. The CCP LP Price will equal the aggregate amount that the holder of the Corbin Interests would receive from CCP LP based on the foregoing assumptions and determinations, the CCPM LLC Price will equal the aggregate amount that the holder of the Corbin Interests would receive from CCPM LLC based on the foregoing assumptions and determinations, and the Redemption Price will equal the sum of the CCP LP Price and the CCPM LLC Price as so determined. 4 EFTA00583428  (c) For purposes of determining how the Parties will report the character of the gain or loss from the sale of the Corbin Interests and for purposes of how they will account for the redemption of the Corbin Interests and report it on their Tax Returns and other income tax filings, the Appraiser shall determine how the Business Value for each Corbin entity should be allocated among the following categories of its assets (the "Asset Classes"): (i) cash; (ii) management contracts (giving proper consideration to the term and termination provisions of such contracts) and accounts receivable; (iii) investment assets, such as carried interests, capital accounts and other investments in hedge funds and other investment funds; (iv) property and equipment; and (v) goodwill and going concern value. (d) After making its final determination of the CCP LP Price, the CCPM LLC Price, the Redemption Price, the Business Value of each of CCP LP and CCPM LLC and the allocation of those Business Values among the different Assets Classes for CCP LP and CCPM LLC, the Appraiser shall prepare a written report of its findings along with a description of the methodology and analysis it used to reach its conclusions and shall promptly send such report (the "Appraiser's Report") to the Parties. 3.4 Allocation of Redemption Price: Treatment and Reporting. (a) Notwithstanding anything in the Corbin Entities' Constituent Instruments to the contrary, (i) the CCP LP Price shall be allocated among the various Asset Classes based on, and in the same proportion as, the Appraiser's determination of how the Business Value of CCP LP determined by the Appraiser should be allocated among such Asset Classes, and the CCPM LLC Price shall be allocated among the various Asset Classes based on, and in the same proportion as, the Appraiser's determination of how the Business Value of CCPM LLC determined by the Appraiser should be allocated among such Asset Classes, and (ii) the Parties shall (a) act in accordance with the agreed allocation in the preparation of financial statements and the filing of all Tax Returns and related schedules and statements, (b) not voluntarily take any position inconsistent therewith in the course of any Tax proceeding, unless required to do so by applicable law, and (c) provide any other Parties promptly with any other requested information required to timely comply with all Tax reporting and filing obligations. (b) Seller and the Corbin Entities shall treat and report the transactions contemplated by this Agreement as a sale of the entire Corbin Interests by Seller to the Corbin Entities for all financial and Tax purposes and on all Tax Returns on which transactions are required to be reported. 4. The Closing. 4.1 aiagi . The closing of the redemption of the Corbin Interests (the "Closing") shall take place at the offices of Cooley LLP, 1114 Avenue of Americas, New York, NY 10036, on a Business Day (the "Closing Date") designated by Seller by notice to the other Parties which, unless Seller and the Corbin Entities otherwise agree, shall not be earlier than the later of (i) five Business Days after the condition set forth in Section 7.1(c) shall have been satisfied or shall have been waived by all of the Parties and (ii) five Business Days after receipt by the other Parties of Seller' notice designating the Closing Date; provided that Seller shall send the other Parties notice of the Closing Date not later than 15 Business Days after Seller receives the 5 EFTA00583429 Appraiser's Report and such notice shall provide for a Closing Date that is no later than 15 Business Days after the date that such notice is sent by Seller. 4.2 Closing Deliveries by Seller. Subject to the satisfaction, or the waiver by Seller, of the conditions set forth in Sections 7.1 and 7.3, at the Closing Seller shall take the following actions: (a) Seller shall execute and deliver to CCP LP an assignment and withdrawal agreement in the form attached hereto as Exhibit A (the "LP Assignment'); and (b) Seller shall execute and deliver to CCPM LLC an assignment and withdrawal agreement in the form attached hereto as Exhibit B (the "LLC Assignment'). 4.3 Closing Deliveries by CCP LP. Subject to the satisfaction, or the waiver by CCP LP, of the conditions set forth in Sections 7.1 and 7.2, at the Closing CCP LP shall take the following actions: (a) CCP LP shall execute and deliver to Seller the LP Assignment; and (b) CCP LP shall pay the CCP LP Price to Seller and Epstein in the manner set forth in Section 3.2. 4.4 Closing Deliveries by CCPM LLC. Subject to the satisfaction, or the waiver by CCPM LLC, of the conditions set forth in Sections 7.1 and 7.2, at the Closing CCPM LLC shall take the following actions: (a) CCPM LLC shall execute and deliver to Seller the LLC Assignment; and (b) CCPM LLC shall pay the CCPM LLC Price to Seller and Epstein in the manner set forth in Section 3.2. 5. Representations and Warranties. 5.1 Representations and Warranties of Seller. Seller hereby represents and warrants to the other Parties that: (a) Execution and Delivery. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against him in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). When executed and delivered by Seller, the LP Assignment and the LLC Assignment will have been duly executed and delivered by Seller and each will constitute the legal, valid and binding obligation of Seller enforceable against him in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 6 EFTA00583430  (b) Consents: No Conflicts. Etc. Subject to the satisfaction of all of the conditions in Section 7.1, neither the consummation by Seller of the transactions contemplated herein nor compliance by Seller with any of the provisions hereof will (with or without the giving of notice or the passage of time) (i) violate any order, writ, injunction or decree, applicable to Seller, (ii) require the consent, approval, permission or other authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect Seller's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which Seller is a party. (c) Seller's Interests. Seller owns the Corbin Interests free and clear of all Encumbrances, except for those arising under the CCP LPA, the CCPM LLC Agreement and the Supplementary Agreements and except for the July 25 Sale Agreement. (d) Disclaimer; No Reliance. Seller acknowledges, represents and warrants that he is not, and will not be, relying on any information, representations or warranties furnished or made by any of the Corbin Entities, Epstein or any of the Corbin Entities' or Epstein's representatives or agents as to any matter whatsoever other than the representations and warranties expressly set forth in this Agreement and agrees that he shall not assert any claim for breach of any representation or warranty of any of the Corbin Entities or Epstein to him that is not expressly set forth in this Agreement. 5.2 Representations and Warranties of CCP LP. CCP LP hereby represents and warrants to Seller and Epstein that: (a) Organization. Good Standing and Authority. CCP LP is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite partnership power and authority to execute, deliver and perform its obligations under this Agreement and the LP Assignment. The execution, delivery and performance of this Agreement and the LP Assignment by CCP LP have been duly authorized by CCP LP's partners, to the extent required. (b) Execution and Delivery. This Agreement has been duly executed and delivered by CCP LP and constitutes the legal, valid and binding obligation of CCP LP enforceable against it in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). When executed and delivered by CCP LP, the LP Assignment will have been duly executed and delivered by CCP LP and will constitute the legal, valid and binding obligation of CCP LP enforceable against it in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 7 EFTA00583431  (c) Consents: No Conflicts Etc. Subject to the satisfaction of all of the conditions in Section 7.1, neither the execution and delivery of this Agreement or the LP Assignment, the consummation by CCP LP of the transactions contemplated herein or therein nor compliance by CCP LP with any of the provisions hereof or thereof will (with or without the giving of notice or the passage of time) (i) violate any order, writ, injunction or decree applicable to CCP LP , (ii) require the consent, approval, permission or other authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect CCP LP 's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which CCP LP is a party or CCP LP's certificate of limited partnership, as amended, or the CCP LPA. (d) Disclaimer; No Reliance. CCP LP acknowledges, represents and warrants that it is not, and will not be, relying on any information, representations or warranties furnished or made by Seller, Epstein or any of Seller's or Epstein's representatives or agents as to any matter whatsoever other than the representations and warranties expressly set forth in this Agreement and agrees that it shall not assert any claim for breach of any representation or warranty of Seller or Epstein to it that is not expressly set forth in this Agreement. 5.3 Representations and Warranties of CCPM LLC. CCPM LLC hereby represents and warrants to Seller and Epstein that: (a) Organization, Good Standing and Authority. CCPM LLC is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite limited liability company power and authority to execute, deliver and perform its obligations under this Agreement and the LLC Assignment. The execution, delivery and performance of this Agreement and the LLC Assignment by CCPM LLC have been duly authorized by CCPM LLC's members, to the extent required. (b) Execution and Delivery. This Agreement has been duly executed and delivered by CCPM LLC and constitutes the legal, valid and binding obligation of CCPM LLC enforceable against it in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). When executed and delivered by CCPM LLC, the LLC Assignment will have been duly executed and delivered by CCPM LLC and will constitute the legal, valid and binding obligation of CCPM LLC enforceable against it in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (c) Consents: No Conflicts. Etc. Subject to the satisfaction of all of the conditions in Section 7.1, neither the execution and delivery of this Agreement or the LLC Assignment, the consummation by CCPM LLC of the transactions contemplated herein or therein nor compliance by CCPM LLC with any of the provisions hereof or thereof will (with or without the giving of 8 EFTA00583432 notice or the passage of time) (i) violate any order, writ, injunction or decree applicable to CCPM LLC, (ii) require the consent, approval, permission or other authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect CCPM LLC 's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which CCPM LLC is a party or CCPM LLC's certificate of formation, as amended, or the CCPM LLC Agreement. (d) Disclaimer; No Reliance. CCPM LLC acknowledges, represents and warrants that it is not, and will not be, relying on any information, representations or warranties furnished or made by Seller, Epstein or any of Seller's or Epstein's representatives or agents as to any matter whatsoever other than the representations and warranties expressly set forth in this Agreement and agrees that it shall not assert any claim for breach of any representation or warranty of Seller or Epstein to it that is not expressly set forth in this Agreement. 5.4 Representations and Warranties of Epstein. Epstein hereby represents and warrants to the other Parties that: (a) Execution and Delivery. This Agreement has been duly executed and delivered by Epstein and constitutes the legal, valid and binding obligation of Epstein enforceable against him in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (b) Consents: No Conflicts Etc. Subject to the satisfaction of all of the conditions in Section 7.1, neither the execution and delivery of this Agreement, the consummation by Epstein of the transactions contemplated herein nor compliance by Epstein with any of the provisions hereof will (with or without the giving of notice or the passage of time) (i) violate any order, writ, injunction or decree applicable to Epstein, (ii) require the consent, approval, permission or other authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect Epstein's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which Epstein is a party. (c) Disclaimer: No Reliance. Epstein acknowledges, represents and warrants that he is not, and will not be, relying on any information, representations or warranties furnished or made by Seller, any of the Corbin Entities or any of Seller's or the Corbin Entities' representatives or agents as to any matter whatsoever concerning the value of the Corbin Interests, except for representations of the other Parties expressly set forth in this Agreement. Epstein further acknowledges, represents, warrants and covenants that he has conducted his own independent 9 EFTA00583433 investigation into and analysis of the value of the Corbin Interests and whatever facts he deems relevant for deciding whether to enter into this Agreement, and that in entering into this Agreement and in engaging in the transactions contemplated hereby, he is and will be relying solely on his own independent investigation, analysis and due diligence. Epstein agrees that he shall not assert any claim for breach of any representation or warranty of any of the Corbin Entities or Seller to him that is not expressly set forth in this Agreement. 5.5 Survival of Representations and Warranties. The representations and warranties of the Parties contained in this Agreement or in any instrument delivered pursuant hereto shall survive the Closing Date. 6. Covenants. 6.1 Consents. By executing and delivering this Agreement, (i) the Corbin Entities, and the General Partner and the Managing Member acting on behalf of the Corbin Entities, consent and agree to Epstein receiving a portion of the Redemption Price as provided in Section 3.2, and (ii) Epstein acknowledges and agrees that upon execution and delivery of this Agreement by the Parties hereto, (x) the July 25 Sale Agreement shall be null and void, and (y) Epstein has no claims to, liens on, or interest of any kind in, the Corbin Interests. 6.2 Restriction on Certain Actions Prior to Closing. Prior to the earlier of the consummation of the Closing or the termination of this Agreement, none of CCP LP, CCPM LLC, the General Partner or the Managing Member shall exercise any right under any of the Constituent Instruments of the Corbin Entities (including the Supplementary Agreements) to purchase or redeem all or any portion of the Corbin Interests or to declare or assert the occurrence of a Forfeiting Event under the CCP LPA or the CCPM LLC Agreement. Prior to the earlier of the consummation of the Closing or the termination of this Agreement, Seller shall not exercise any right that Seller may have to sell all or any portion of the Corbin Interests to anyone other than to the Corbin Entities pursuant to this Agreement. 6.3 Release and Covenant Not to Sue by Corbin Entities. In the event that the purchase and redemption of the Corbin Interests contemplated by this Agreement are consummated, then each of CCP LP and CCPM LLC, for itself, and for its successors and assigns (collectively, the "Corbin Releasing Parties"), for and in consideration of the promises set forth in this Agreement, shall automatically release and forever discharge Seller and his heirs, executors and administrators (collectively, the "Seller Releasees") of and from any and all manner of action or actions, cause or causes of action, suits, debts, liabilities, obligations, covenants, controversies, agreements, damages, judgments, executions, claims, and demands whatsoever, in law or in equity, which against them, any of the Corbin Releasing Parties ever had, now have or which any of them can, shall or may have, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this Agreement and specifically including, but not in any way limited to, any and all claims arising prior to the date of this Agreement in connection with any dispute relating in any way to any of the Corbin Entities; provided however, that nothing herein is intended to or shall constitute, or be construed as, a release by any Corbin Releasing Party of any manner of action or actions, cause or causes of action, suits, debts, liabilities, obligations, covenants, controversies, agreements, damages, judgments, executions, 10 EFTA00583434 claims, and demands whatsoever, in law or in equity, which any of the Corbin Releasing Parties ever had, now have or which they can, shall or may have, against any Seller Releasees upon or by reason of this Agreement or any instrument or agreement executed and delivered by any of the Seller Releasees pursuant to or in connection with this Agreement. Each of the Corbin Entities, for and in consideration of the promises set forth in this Agreement, does hereby agree and covenant for itself and for each of the other Corbin Releasing Parties that in the event that the purchase and redemption of the Corbin Interests contemplated by this Agreement are consummated, it shall not institute or prosecute after the Closing any suit or action, at law or in equity (through any court proceeding, arbitration or other means), against any of the Seller Releasees for or on account of any claim or cause of action based on or alleging any liability of that Seller Releasee that is released by the foregoing release. 6.4 Release and Covenant Not to Sue by Seller. In the event that the purchase and redemption of the Corbin Interests contemplated by this Agreement are consummated, then Seller, for himself, and for his heirs, executors, administrators and assigns (collectively, the "Seller Releasing Parties"), for and in consideration of the promises set forth in this Agreement, shall automatically release and forever discharge each of the Corbin Entities and their successors (collectively, the "Corbin Releasees") of and from any and all manner of action or actions, cause or causes of action, suits, debts, liabilities, obligations, covenants, controversies, agreements, damages, judgments, executions, claims, and demands whatsoever, in law or in equity, which against them, any of the Seller Releasing Parties ever had, now have or which any of them can, shall or may have, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this Agreement and specifically including, but not in any way limited to, any and all claims arising prior to the date of this Agreement in connection with any dispute relating in any way to any of the Corbin Entities; provided, however, that nothing herein is intended to or shall constitute, or be construed as, a release by any Seller Releasing Party of any manner of action or actions, cause or causes of action, suits, debts, liabilities, obligations, covenants, controversies, agreements, damages, judgments, executions, claims, and demands whatsoever, in law or in equity, which any of the Seller Releasing Parties ever had, now have or which they can, shall or may have, against any of the Corbin Releasees upon or by reason of this Agreement or any instrument or agreement executed and delivered by any Corbin Releasees pursuant to or in connection with this Agreement. Seller, for and in consideration of the promises set forth in this Agreement, does hereby agree and covenant for himself and for the other Seller Releasing Parties that in the event that the purchase and redemption of the Corbin Interests contemplated by this Agreement are consummated, he or it shall not institute or prosecute after the Closing any suit or action, at law or in equity (through any court proceeding, arbitration or other means), against any of the Corbin Releasees for or on account of any claim or cause of action based on or alleging any liability of that Corbin Releasee that is released by the foregoing release. 6.5 Preservation of Indemnification Rights and Rights of Former Partner or Member. The Corbin Entities acknowledge and agree that notwithstanding anything herein or in the LP Assignment or the LLC Assignment to the contrary, from and after the redemption of the Corbin Interests Seller will continue to have, and is not releasing or assigning any, (i) rights to indemnification under the CCP LPA and the CCPM LLC Agreement, and (ii) other rights that II EFTA00583435 Seller may have under the CCP LPA as a former partner of CCP LP or under the CCPM LLC Agreement as a former member of CCPM LLC. 6.6 Tax Matters. (a) In accordance with Tax Regulation section 1.706-1(c)(2)(ii), for the taxable year of the Corbin Entities in which the Corbin Interests are redeemed, Seller's distributive share of the items described in section 702(a) of the Internal Revenue Code of 1986, as amended (the "Code"), will be determined based on an interim closing of the books of the Partnership as of midnight of the day before the Closing Date. (b) The intent of the parties is that (i) the redemption of the Corbin Interests shall be governed by Code section 736; and (ii) all payments with respect thereto be treated as payments with respect to Seller's interests in partnership property within the meaning of Code section 736(b). (c) The parties agree to act consistently with this Section 6.6 for income tax purposes. 7. Conditions to Closing; Termination. 7.1 Condition to Each Party's Obligation to Close. The respective obligations of the Parties to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or waiver by each Party in writing, on or before the Closing Date of the following conditions: (a) Injunctions. There shall not be outstanding any injunction, decree or order of any court or governmental department or agency prohibiting the consummation of the transactions contemplated by this Agreement. (b) No Change in Law. There shall not have been any action taken or any statute enacted by any Governmental Authority which would render the Parties unable to consummate the transactions contemplated hereby or make the transactions contemplated hereby illegal or prohibit the consummation of the transactions contemplated hereby. (c) Appraiser's Report. The Appraiser shall have completed the Appraiser's Report in compliance with Section 3.3 and shall have delivered it to the each of the Parties. 7.2 Conditions to Corbin Entities' Obligations to Close. The obligation of the Corbin Entities to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or the waiver in writing by the Corbin Entities, on or prior to the Closing Date, of the following conditions: (a) Representations and Warranties True at the Closing Date. The representations and warranties of Seller contained in this Agreement shall be deemed to have been made at and as of the Closing Date and shall be true and correct in all material respects at and as of the Closing Date, and Seller shall have delivered to the Corbin Entities his certificate to such effect dated as of the Closing Date. 12 EFTA00583436  (b) Seller's Performance. Each obligation of Seller to be performed on or before the Closing Date pursuant to the terms of this Agreement, including Seller's taking all of the actions required under Section 4.2 hereof, shall have been duly performed at or before the Closing, in all material respects, and Seller shall have delivered to the Corbin Entities his certificate to such effect dated as of the Closing Date. 7.3 Conditions to Seller's Obligation to Close. The obligations of Seller to consummate the transactions contemplated hereby shall be subject to the fulfillment, or the waiver in writing by Seller, on or prior to the Closing Date, of the following conditions: (a) Representations and Warranties True at the Closing Date. The representations and warranties of the Corbin Entities contained in this Agreement shall be deemed to have been made at and as of the Closing Date and shall be true and correct in all material respects at and as of the Closing Date, and the Corbin Entities shall have delivered to Seller certificates of the General Partner and the Managing Member to such effect dated as of the Closing Date. (b) Corbin Entities' Performance. Each obligation of the Corbin Entities to be performed on or before the Closing Date under the terms of this Agreement including the Corbin Entities' taking all of the actions required under Sections 4.3 and 4.4 hereof, shall have been duly performed at or before the Closing, in all material respects, and the Corbin Entities shall have delivered to Seller certificates of the General Partner and the Managing Member to such effect dated as of the Closing Date. 7.4 Effect of Failure to Close by the Outside Date. (a) In the event that the sale of the Corbin Interests is not consummated on or prior to March 31, 2012 (the "Outside Date") for any reason whatsoever, then, unless both (x) such failure to close is solely due to the refusal of Seller to consummate such sale by the Outside Date and (y) all of the conditions to Seller's obligations to close under Sections 7.1 and 7.3 shall have been satisfied as of the Closing Date, Seller shall have the right to terminate this Agreement by written notice to the other Parties, in which case (i) the Corbin Entities shall reimburse each of Seller and Epstein for up to $75,000 of documented expenses incurred by each (including attorneys', accountants' and other professional fees and expenses) reasonably incurred by Seller or Epstein in connection with the preparation and negotiation of this Agreement and the related instruments and agreements and the anticipated Closing, and (ii) Seller shall not have (A) any further obligations to sell the Corbin Interests pursuant to this Agreement or (B) any other further obligations or liability under this Agreement. The termination of this Agreement by Seller shall not relieve the Corbin Entities for any liability to Seller and Epstein for any breach by any of them of this Agreement. (b) In the event that the sale of the Corbin Interests is not consummated on or prior to the Outside Date solely due to the wrongful refusal of Seller to close such sale even though all of the conditions to Seller's obligations to close under Sections 7.1 and 7.3 shall have been satisfied, then (i) the Corbin Entities and/or Epstein shall have the right to (A) elect, by written notice to Seller within five days after the Outside Date to seek specific performance against Seller, in which case such right shall constitute the Corbin Entities' and Epstein's sole remedy, or (B) terminate this Agreement and receive reimbursement from Seller of up to $75,000 of documented expenses (including attorneys', accountants' and other professional fees 13 EFTA00583437 and expenses) reasonably incurred by the Corbin Entities in connection with the preparation and negotiation of this Agreement and the related instruments and agreements and the anticipated Closing, in which case Seller shall not have (x) any further obligations to sell the Corbin Interests pursuant to this Agreement or (y) any other further obligations or liability under this Agreement, and (ii) no other Person shall have any rights or remedies against Seller under this Agreement. The Corbin Entities shall be deemed to have terminated this Agreement if neither they nor Epstein give a timely notice to Seller pursuant to clause (A) of the preceding sentence that they intend to seek specific performance. The remedies set forth above shall constitute the Corbin Entities' and Epstein's exclusive remedies. 8. Mediation of Disputes. (a) Any dispute, claim or controversy arising out of or relating to this Agreement or in connection with the transactions contemplated hereby or the breach, termination, enforcement, interpretation or validity of this Agreement, including the determination of the scope or applicability of this agreement to mediate, shall be determined by binding mediation in New York, New York before a mediator (the "Mediator") who shall be the Honorable Anthony J. Carpinello of JAMS, unless he is unavailable or unwilling to serve as the Mediator, in which case the Mediator shall be a retired judge selected in accordance with JAMS's then existing Rules of Practice and Procedures. (b) THE PARTIES IRREVOCABLY AND UNCONDITIONALLY CONSENT TO THE JURISDICTION OF JAMS TO RESOLVE ALL DISPUTES, CLAIMS, OR CONTROVERSIES ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AND FURTHER CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE COUNTY OF NEW YORK FOR THE PURPOSES OF ENFORCING THE PROVISIONS OF THIS SECTION 8 OR OF ANY AWARD OBTAINED HEREUNDER OR IN CONNECTION WITH ANY PROVISIONAL REMEDIES SOUGHT BY THE PARTIES. EACH OF THE PARTIES FURTHER IRREVOCABLY WAIVES ANY OBJECTION TO PROCEEDING BEFORE THE MEDIATOR OR THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE COUNTY OF NEW YORK, AS THE CASE MAY BE, BASED UPON LACK OF PERSONAL JURISDICTION OR TO THE LAYING OF VENUE AND FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO MAKE A CLAIM IN ANY COURT THAT MEDIATION BEFORE THE MEDIATOR HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HEREBY CONSENTS TO SERVICE OF PROCESS BY REGISTERED MAIL AT THE ADDRESS TO WHICH NOTICES ARE TO BE GIVEN. EACH PARTY AGREES THAT HIS SUBMISSION TO JURISDICTION AND HIS CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE E