EXHIBIT C(1)
[EXECUTION COPY]
VOTING AGREEMENT
among
EQUITY RESOURCE BOSTON FUND,
EQUITY RESOURCE BRIDGE FUND,
EQUITY RESOURCE CAMBRIDGE FUND,
EQUITY RESOURCE GENERAL FUND,
EQUITY RESOURCE FUND XVII,
EQUITY RESOURCE FUND XIX,
EQUITY RESOURCE FUND XXI
KRF COMPANY, L.L.C.,
and
KR5 ACQUISITION, L.L.C.
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Dated as of December 2, 1999
------------------------------
VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 2, 1999 (this
"AGREEMENT"), by and among KRF Company, L.L.C., a Delaware limited liability
company ("BERKSHIRE"), KR5 Acquisition, L.L.C., a Delaware limited liability
company (the "COMPANY"), and certain investment funds affiliated with Equity
Resources Group Incorporated (collectively referred to as "EQUITY RESOURCES"),
listed on Schedule I hereto (each, a "UNITHOLDER" and, collectively, the
"UNITHOLDERS").
WHEREAS, the Company, Berkshire and Equity Resources propose
to enter into an Investment Agreement, dated as of the date hereof (the
"INVESTMENT AGREEMENT") which contemplates, among other things, (i) the
investment by each of Berkshire and Equity Resources in the Company; (ii) the
merger of the Company with Krupp Realty Limited Partnership-V with and into the
Company, a Massachusetts limited partnership (the "PARTNERSHIP") (the "MERGER")
pursuant to a Merger Agreement (the "MERGER AGREEMENT") substantially in the
form attached as Exhibit C to the Investment Agreement; and (iii) the amendment
of the Amended Agreement of Limited Partnership of the Partnership, dated
July 27, 1983, as amended from time to time (the "FUND V AGREEMENT") to permit
the Company to enter into the Merger Agreement and consummate the transactions
contemplated thereby (the "AMENDMENT").
WHEREAS, as of the date hereof, the Unitholders are holders of
record or Beneficially Own (as defined herein) an aggregate amount of 3,985.5
limited partnership units of the Partnership listed opposite the name of each
such Unitholder on Schedule I hereto; and
WHEREAS, in order to induce Berkshire and the Company to enter
into the Investment Agreement, each Unitholder has agreed to enter into this
Agreement with respect to all of the investor limited partnership interests of
the Partnership now held of record or Beneficially Owned and which may hereafter
be acquired by such Unitholders (the "UNITS").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 GENERAL. Capitalized terms used and not
defined herein have the respective meanings ascribed to them in the
Investment Agreement.
Section 1.2 BENEFICIAL OWNERSHIP. For purposes of this
Agreement, "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing.
ARTICLE II
Section 2.1 VOTING AGREEMENT. Each of the Unitholders
hereby agrees as follows:
(a) to appear, or cause the holder of record on any
applicable record date with respect to any Units owned by such
Unitholder to appear, in person or by proxy, for the purpose of
obtaining a quorum at any annual or special meeting of the partners of
the Partnership and at any adjournment thereof, at which matters
relating to the Merger, the Amendment or any transaction contemplated
thereby are considered; and
(b) at any meeting of the partners of the
Partnership, however called, and in any action by consent of the
limited partners of the Partnership, to vote, or cause to be voted by
the Unitholders, in person or by proxy, the Units held of record or
Beneficially Owned by such Unitholder in favor of the Merger, the
Merger Agreement (as amended from time to time), the Amendment and the
transactions contemplated by the Merger Agreement; and
(c) at any meeting of the Partners of the
Partnership, however called, and in any action by consent of the
limited partners of the Partnership, to vote, or cause to be voted by
the Unitholders, in person or by proxy, the Units held of record or
Beneficially Owned by such Unitholder against approval of any proposal
made in opposition to or in competition with the Merger or any of the
other transactions contemplated by the Merger Agreement, and any other
action that may reasonably be expected to impede, interfere with,
delay, postpone or attempt to discourage the Merger or the other
transactions contemplated by the Merger Agreement which would
materially and adversely affect the Partnership or its ability to
consummate the transactions contemplated by the Merger Agreement.
Section 2.2 NO OWNERSHIP INTEREST. Nothing contained in
this Voting Agreement shall be deemed to vest in the Company or Berkshire any
direct or indirect ownership or incidence of ownership of or with respect to
any Units. All rights, ownership and economic benefits of and relating to the
Units shall remain and belong to the Unitholders.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE UNITHOLDERS
Each of the Unitholders hereby represents and warrants,
severally and not jointly, to the Company and Berkshire as follows:
Section 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Such
Unitholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. Where such Unitholder is a corporation,
partnership or other entity, the execution and delivery of this Agreement by
such Unitholder and the consummation by such Unitholder of the transactions
contemplated hereby have been duly and validly authorized by the board of
directors or other governing body of such Unitholder, and no other
proceedings on the part of such Unitholder are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly
and validly executed and delivered by such Unitholder and constitutes a
legal, valid and binding obligation of such Unitholder, enforceable against
such Unitholder in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by general principles
governing the availability of equitable remedies.
Section 3.2 NO CONFLICT. (a) The execution and delivery
of this Agreement by such Unitholder does not, and the performance of this
Agreement by such Unitholder shall not, (i) where such Unitholder is a
corporation, partnership or other entity, conflict with or violate the
organizational documents of such Unitholder, (ii) conflict with or violate
any agreement, arrangement, law, rule, regulation, order, judgment or decree
to which such Unitholder is a party or by which such Unitholder (or the Units
held of record or Beneficially Owned by such Unitholder) is bound or affected
or (iii) result in any breach of or constitute a default (or an event that
with notice or lapse or time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a lien or encumbrance on any of the Units
held of record or Beneficially Owned by such Unitholder pursuant to any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which
such Unitholder is a party or by which such Unitholder (or the Units held of
record or Beneficially Owned by such Unitholder) is bound or affected, except,
in the case of clauses (ii) and (iii) of this Section 3.2, for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent the performance by such Unitholder of its material obligations under
this Agreement.
(b) The execution and delivery of this Agreement by such
Unitholder does not, and the performance of this Agreement by such Unitholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental entity except for applicable
requirements, if any, of federal or state securities and antitrust laws and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent the
performance by such Unitholder of its material obligations under this Agreement.
Section 3.3 TITLE TO THE UNITS. As of the date hereof,
such Unitholder is the record or Beneficial Owner of the Units listed
opposite the name of such Unitholder on Schedule I hereto. The Units listed
opposite the name of such Unitholder on Schedule I hereto are all the
securities of the Partnership either held of record or Beneficially Owned by
such Unitholder. Such Unitholder has not appointed or granted any proxy,
which appointment or grant is still effective, with respect to the Units held
of record or Beneficially Owned by such Unitholder. The Units listed opposite
the name of such Unitholder on Schedule I hereto are owned free and clear of
all security interests, liens, claims, pledges, options, rights of first
refusal, limitations on such Unitholder's voting rights, charges and other
encumbrances of any nature whatsoever other than liens under applicable law.
ARTICLE IV
COVENANTS OF THE UNITHOLDER
Section 4.1 NO INCONSISTENT AGREEMENTS. Each Unitholder
hereby represents, warrants, covenants and agrees that, except as
contemplated by this Agreement and the Investment Agreement, such Unitholder
has not and shall not, and will use its reasonable best efforts to not permit
any Person under such Unitholder's control to, enter into any voting
agreement or grant a proxy or power of attorney with respect to the Units
held of record or Beneficially Owned by such Unitholder which, in either
case, is inconsistent with this Agreement.
Section 4.2 TRANSFER OF TITLE. Each Unitholder hereby
covenants and agrees that such Unitholder will not, prior to the termination
of this Agreement, either directly or indirectly, offer or otherwise agree to
sell, assign, pledge, hypothecate, transfer, exchange, or dispose of any
Units or options, warrants or other convertible securities to acquire or
purchase units of the Partnership or any other securities or
rights convertible into or exchangeable for units of the Partnership, owned
either directly or indirectly by such Unitholder or with respect to which such
Unitholder has the power of disposition, whether now or hereafter acquired,
without the prior written consent of the Company and Berkshire. Each Unitholder
hereby agrees and consents to the entry of stop transfer instructions by the
Partnership against the transfer of any Units inconsistent with the terms of
this Section 4.2.
ARTICLE V
MISCELLANEOUS
Section 5.1 TERMINATION. This Agreement shall terminate
unless extended by agreement of each of the parties hereto on August 1, 2000.
Upon such termination, no party shall have any further obligations or
liabilities hereunder; PROVIDED, HOWEVER, that nothing in this Agreement
shall relieve any party from liability for the breach of any of its
representations, warranties, covenants and agreements set forth in this
Agreement prior to such termination.
Section 5.2 ADDITIONAL UNITS. If, after the date hereof,
a Unitholder acquires the right to vote any additional partnership interests
of the Partnership (any such partnership interests shall be referred to
herein as "ADDITIONAL UNITS"), the provisions of this Agreement applicable to
the Units shall be applicable to such Additional Units as if such Additional
Units had been Units held by the Unitholders as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with
respect to Additional Units without action by any Person immediately upon the
acquisition by a Unitholder of the right to vote such Additional Units.
Section 5.3 SPECIFIC PERFORMANCE. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
Section 5.4 ENTIRE AGREEMENT. This Agreement and the
Investment Agreement constitute the entire agreement between Berkshire, the
Company and the Unitholders with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between Berkshire, the Company and the Unitholders with respect to the
subject matter hereof; PROVIDED that, to the extent not inconsistent with the
terms hereof, the Settlement Agreement and Release, dated as of July 17,
1995, among Equity Resources and the parties named therein shall continue in
full force and effect.
Section 5.5 AMENDMENT. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
Section 5.6 SEVERABILITY. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any
rule or law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereby shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated.
Section 5.7 NOTICES. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made and shall be effective upon receipt, if delivered
personally, upon receipt of a transmission confirmation if sent by facsimile
(with a confirming copy sent by overnight courier) and on the next business
day if sent by Federal Express, United Parcel Service, Express Mail or other
reputable overnight courier to the parties at the following addresses (or at
such other address for a party as shall be specified by notice):
If to a Unitholder:
c/o Equity Resources Group, Inc.
14 Story Street
Cambridge, Massachusetts 02138
Attention: Mr. Eggert Dagbjartsson
with a copy to:
Holland & Knight, LLP
One Beacon Street
Boston, Massachusetts 02108
If to the Company or Berkshire, to:
c/o The Berkshire Group
One Beacon Street, Suite 1500
Boston, Massachusetts 02108
Attention: David Quade
with copies to:
The Berkshire Group
One Beacon Street, Suite 1500
Boston, Massachusetts 02108
Attention: Scott Spelfogel, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: James M. Dubin
Section 5.8 GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware applicable to agreements made and to be performed entirely within
such state without giving effect to the provisions thereof relating to
conflicts of law.
Section 5.9 OBLIGATIONS OF UNITHOLDERS. The obligations
of the Unitholders hereunder shall be "joint and several."
Section 5.10 COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which shall be an original and all of
which, when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective duly authorized
persons on the date first above written.
KR5 ACQUISITION, L.L.C.
By: KRF Company, L.L.C.,
its sole member
By: The Krupp Family Limited Partnership-94,
its sole member
By: /s/ Douglas Krupp
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Douglas Krupp
General Partner
KRF COMPANY, L.L.C.
By: The Krupp Family Limited Partnership-94,
its sole member
By: /s/ Douglas Krupp
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Douglas Krupp
General Partner
EQUITY RESOURCE BOSTON FUND,
EQUITY RESOURCE BRIDGE FUND,
EQUITY RESOURCE CAMBRIDGE FUND
EQUITY RESOURCE GENERAL FUND,
EQUITY RESOURCE FUND XVII,
EQUITY RESOURCE FUND XIX,
EQUITY RESOURCE FUND XXI
By: EQUITY RESOURCES GROUP, INCORPORATED,
as general partner of each of the foregoing
By: /s/ Eggert Dagbjartsson
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Eggert Dagbjartsson
Executive Vice President
SCHEDULE I
UNITHOLDER: NUMBER OF UNITS: ADDRESS:
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Equity Resource Fund 1,599.50 c/o Equity Resources Group, Inc.
XVII 14 Story Street
Cambridge, Massachusetts
02138
Attention: Mr. Eggert Dagbjartsson
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Equity Resource Fund 225.00 c/o Equity Resources Group, Inc.
XIX 14 Story Street
Cambridge, Massachusetts 02138
Attention: Mr. Eggert Dagbjartsson
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Equity Resource Fund 847.00 c/o Equity Resources Group, Inc.
XXI 14 Story Street
Cambridge, Massachusetts 02138
Attention: Mr. Eggert Dagbjartsson
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Equity Resource General 20.00 c/o Equity Resources Group, Inc.
Fund 14 Story Street
Cambridge, Massachusetts 02138
Attention: Mr. Eggert Dagbjartsson
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Equity Resource 175.00 c/o Equity Resources Group, Inc.
Cambridge Fund 14 Story Street
Cambridge, Massachusetts 02138
Attention: Mr. Eggert Dagbjartsson
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Equity Resource Bridge 20.00 c/o Equity Resources Group, Inc.
Fund 14 Story Street
Cambridge, Massachusetts 02138
Attention: Mr. Eggert Dagbjartsson
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Equity Resource Boston 1099.00 c/o Equity Resources Group, Inc.
Fund 14 Story Street
Cambridge, Massachusetts 02138
Attention: Mr. Eggert Dagbjartsson
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