EXHIBIT (d)
AGREEMENT
THIS AGREEMENT is made and entered into as of the _____ day of May,
2000 by and between WINTHROP FINANCIAL ASSOCIATES, A LIMITED PARTNERSHIP, a
Maryland limited partnership ("Winthrop"), and EQUITY RESOURCES GROUP,
INCORPORATED, a Massachusetts corporation ("ERG").
WITNESSETH:
WHEREAS, Winthrop, together with its direct and indirect subsidiaries,
directly or indirectly acts as the general partner of each of the limited
partnerships listed on Schedule 1 hereto, (together with any other limited
partnerships in which Winthrop, or an entity which is ultimately controlled by
Winthrop, becomes the general partner with the right to control the operations
of such partnership, the "Partnerships");
WHEREAS, ERG together with its affiliates (collectively, the "Equity
Resources Group") are in the business, of among other things, acquiring limited
partnership interest in limited partnerships including the Partnerships;
WHEREAS, Winthrop and ERG desire to set forth their understanding with
respect to the acquisition of limited partnership interests in the Partnerships
by the Equity Resources Group;
NOW, THEREFORE, it is hereby agreed, by and between the parties hereto,
as follows:
1. Delivery of Partnership List. (a) At such time or times as ERG
desires to obtain a list of limited partners of a Partnership (each a "List"),
ERG or the applicable Equity Resources Group member that is a limited partner in
the applicable Partnership shall deliver a notice to Winthrop (a "Request
Notice") setting forth the name of the Partnership for which the list is
required and the number of units owned by the requesting party. So long as the
requesting Equity Resources Group member is a limited partner in the Partnership
for which the list is requested, within ten business days of receipt of the
Request Notice, Winthrop shall cause the Partnership to deliver to such
requesting Equity Resources Group member the most current list of limited
partners in the Partnership, which list shall set forth the name, address and
number of units held by each limited partner in such Partnership as then
reflected on the books and records of the Partnership.
2. Permitted Use; Standstill. (a) ERG agrees that the Equity Resource
Group members may only use each List for a one time solicitation for the
purchase of limited partnership interests in the relevant Partnership. ERG shall
(i) return each List to the Partnership promptly after the completion of its
solicitation for units of limited partnership interest in the relevant
Partnership and (ii) not make or retain any copies of each List. Notwithstanding
anything to the contrary herein, ERG shall have the right to request a List for
any or all Partnerships on one or more occasions and shall have the right to
conduct a solicitation permitted hereunder with respect to each List requested.
(b) Except as permitted in Section 2(a) above, ERG shall not,
nor shall it permit any Equity Resources Group member, or any of their
respective Affiliates (as defined under Rule 405 of the Securities Act or 1933,
as amended) to, without the prior written consent of Winthrop, which may be
withheld for any reason, directly or indirectly, (a) seek or propose to enter
into, directly or indirectly, any merger, consolidation, business combination,
sale or acquisition of assets, liquidation, dissolution or other similar
transaction involving a Partnership, (b) make, or in any way participate
directly or indirectly, in any "solicitation" of "proxies" or "consents" (as
such terms are
used in the proxy rules of the Securities and Exchange Commission) to vote, or
seek to advise or influence any person with respect to the voting of any voting
securities of a Partnership, (c) form, join or otherwise participate in a
"group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) with respect to any voting securities
of a Partnership, (d) disclose to any third party any intention, plan or
arrangement inconsistent with the terms of this Agreement or (e) loan money to,
advise, assist or encourage any person in connection with any action
inconsistent with the terms of this Agreement.
(c) Neither ERG or any Equity Resources Group member shall,
without the prior written consent of Winthrop, disclose to any third party the
contents of a List or that a List has been made available to ERG or such Equity
Resources Group member.
(d) At such time as ERG or any Equity Resources Group member
is making a tender offer for units of limited partnership in a Partnership which
is permitted hereunder and made with respect to a List requested in accordance
with the terms hereof, Presidio will not, and will cause its affiliates not to,
commence an offer to purchase units of limited partnership in such Partnership.
Nothing in this Agreement shall prevent Presidio or its affiliates form making
an offer for units of limited partnership interest in a Partnership at such time
as ERG or any Equity Resources Group member does not have an open tender offer
for units of limited partnership in a Partnership which is permitted hereunder
and made with respect to a List requested in accordance with the terms hereof.
3. Delivery of Documentation. Simultaneously with its mailing to
limited partners, ERG shall, or shall cause the applicable Equity Resources
Group member to, deliver to the general partner of the applicable Partnership
any offering materials used by the applicable Equity Resources Group member in
connection with a general solicitation or tender offer for units of limited
partnership interest in a Partnership, regardless of whether the delivery of
such documentation is required by applicable law.
4. Effectiveness of Transfers. Absent manifest error in the
documentation presented to the Partnerships' transfer agent or the failure to
deliver all necessary documentation to effect transfers of units of limited
partnership interest and so long as the purported seller of the units of limited
partnership interest is the record holder of such units being transferred,
Winthrop shall cause the Partnerships' transfer agent to effect all transfers of
units of limited partnership interest submitted by the Equity Resources Group.
5. Call Option. (a) Within ten business days of the acquisition by an
Equity Resources Group member of any units of limited partnership interest in a
Partnership, regardless of whether such units are acquired in a general
solicitation or tender offer for units of limited partnership interest, through
a privately negotiated transaction or otherwise, ERG shall deliver a notice (the
"Acquisition Notice") to Winthrop setting forth the Partnership in which units
of limited partnership interest were acquired, the number of units acquired and
the purchase price paid per unit (the "Purchase Price").
(b) Winthrop shall have the right, but not the obligation, to
cause the applicable Equity Resource Group member to sell to Winthrop or its
affiliate one-half of the number of units of limited partnership interest set
forth in the Acquisition Notice at a purchase price per unit equal to the
Purchase Price. If Winthrop desires to exercise its right granted pursuant to
this Paragraph 5(b), Winthrop shall deliver a notice (the "Call Notice") to ERG
within 10 business days of its receipt of the Acquisition Notice stating
Winthrop's desire to exercise the option granted under this Paragraph 5 and
shall include an Assignment of Partnership Interests in substantially the form
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attached hereto as Exhibit A (the "Assignment"). Within two business days of
Winthrop's receipt of a fully-executed copy of the Assignment, Winthrop shall
cause the purchase price for such units to be paid to the applicable Equity
Resources Group member.
(c) If Winthrop shall not exercise its rights pursuant to this
Paragraph 5 within the applicable time period, Winthrop shall have no rights
with respect to any units of limited partnership interest deemed offered in the
applicable Acquisition Notice.
6. Representations and Warranties. (a) ERG hereby represents, warrants
and covenants to Winthrop that:
(i) the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby to be
performed by ERG have been duly and validly authorized by all necessary
action of ERG and no other proceedings on the part of ERG is necessary
to authorize this Agreement or to consummate the transactions so
contemplated;
(ii) ERG has all requisite power and authority to
execute and deliver this Agreement, and to consummate the transactions
hereby contemplated and to take all other actions required to be taken
by it pursuant to the provisions hereof; and, this Agreement and all
other documents and agreements contemplated hereby are the legal, valid
and binding obligation of ERG, enforceable against it in accordance
with their terms;
(iii) no consent, approval, authorization or
notification of, or declaration, filing or registration with, any
governmental entity is required on behalf of or on the part of ERG in
connection with the execution, delivery, or performance of this
Agreement by ERG or the consummation of the transactions contemplated
hereby to be performed by ERG or the Equity Resources Group. Neither
the execution and delivery of this Agreement by ERG nor the
consummation of the transactions hereby contemplated to be performed by
the Equity Resources Group will (i) constitute any violation or breach
of or conflict with any Equity Resources Group member's organizational
documents or any order, writ, injunction, decree, statute, rule or
regulation, governmental license or permit, to which an Equity
Resources Group member or any of its assets is subject or by which any
of them is bound, or (ii) result in a violation of, conflict with,
constitute a default under, or result in the termination, acceleration,
amendment or modification of, any contract or instrument to which an
Equity Resources Group member may be subject or bound.
(b) Winthrop hereby represents, warrants and covenants to ERG
that:
(i) the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby to be
performed by Winthrop have been duly and validly authorized by all
necessary action of Winthrop and no other proceedings on the part of
Winthrop is necessary to authorize this Agreement or to consummate the
transactions so contemplated;
(ii) Winthrop has all requisite power and authority to
execute and deliver this Agreement, and to consummate the transactions
hereby contemplated and to take all other actions required to be taken
by it pursuant to the provisions hereof; and, this Agreement and all
other documents and agreements contemplated hereby are the legal, valid
and binding obligation of Winthrop, enforceable against it in
accordance with their terms;
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(iii) no consent, approval, authorization or
notification of, or declaration, filing or registration with, any
governmental entity is required on behalf of or on the part of Winthrop
in connection with the execution, delivery, or performance of this
Agreement by Winthrop or the consummation of the transactions
contemplated hereby to be performed by Winthrop. Neither the execution
and delivery of this Agreement by Winthrop nor the consummation of the
transactions hereby contemplated to be performed by Winthrop will (i)
constitute any violation or breach of or conflict with Winthrop's
organizational documents or any order, writ, injunction, decree,
statute, rule or regulation, governmental license or permit, to which
Winthrop or any of its assets is subject or by which any of them is
bound, or (ii) result in a violation of, conflict with, constitute a
default under, or result in the termination, acceleration, amendment or
modification of, any contract or instrument to which Winthrop may be
subject or bound;
7. Survival of Representations and Warranties. Except as otherwise
provided herein, the representations, warranties, covenants and agreements
contained in this Agreement shall survive for a period ending on the first
anniversary of the date hereof.
8. Notices. All communications hereunder shall be in writing and shall
be sent either by facsimile (followed by regular mail), overnight mail,
registered or certified mail, return receipt requested; if intended for
Winthrop, shall be addressed to it at 5 Cambridge Center, 9th Floor, Cambridge,
Massachusetts 02142, Facsimile No. (617) 868-5095, Attention: Ms. Carolyn
Tiffany or at such other address of which Winthrop shall have given notice to
ERG in the manner herein provided; if intended for ERG shall be addressed to it
at 14 Story Street, Cambridge, Massachusetts 02138, Facsimile No. (617) 876-7616
Attention: Mr. Eggert Dagbjartsson or at such other address of which ERG shall
have given notice to Winthrop in the manner herein provided.
9. No Modification Except in Writing. This Agreement shall not be
changed, modified, or amended except by a writing signed by the party to be
charged, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
10. Further Assurances. Each of the parties hereto hereby agrees to
execute and deliver all such further documents and take all such further actions
as shall be necessary, desirable or expedient to consummate the transactions
contemplated hereby.
11. Entire Agreement. This Agreement sets forth the entire agreement
and understanding among the parties as to the subject matter hereof and merges
and supersedes all prior discussions, agreements and understandings of every
kind and nature among them.
12. Severability. If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected unless the provision held invalid
shall substantially impair the benefits of the remaining portions of this
Agreement.
13. Assignment. This Agreement may not be assigned by either party
hereto without the prior written consent of the other party.
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14. Fees and Expenses. Except as otherwise provided herein, each party
hereto will pay all fees and expenses incurred by it in connection with this
Agreement.
15. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of The Commonwealth of Massachusetts without giving
effect to the conflict of laws principles thereof.
16. Captions. The captions appearing in this Agreement are inserted
only as a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Agreement or any of the provisions hereof.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first above written.
WINTHROP FINANCIAL ASSOCIATES,
A LIMITED PARTNERSHIP
By
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Peter Braverman
Executive Vice President
EQUITY RESOURCES GROUP, INCORPORATED
By
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Eggert Dagbjartsson
Executive Vice President
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Schedule 1
PARTNERSHIPS
1999 Broadway Associates Limited Partnership
Amanda Associates
Browen Associates
Castleton Associates Limited Partnership
Castleton II Associates Limited Partnership
CTO Associates Limited Partnership
Dallas Commerce Associates Limited Partnership
Five Troy Associates Limited Partnership
Florida Energy Associates Limited Partnership
Four Naples Associates Limited Partnership
Fremont Park Associates Limited Partnership
Harbor View
HVA Associates Limited Partnership
J&S Realty
KHA Associates
Nantucket Island II Associates Limited Partnership
Nantucket Island Associates Limited Partnership
New Orleans Associates Limited Partnership
One Amy Associates Limited Partnership
One Arkansas Associates Limited Partnership
One Atlanta Associates Limited Partnership
One Corsica Associates Limited Partnership
One Elmhurst Associates Limited Partnership
One Essex Associates Limited Partnership
One Glenwood Associates Limited Partnership
One Hamilton Associates Limited Partnership
One Irving Associates Limited Partnership
One Ontario Associates Limited Partnership
One Sheldon Associates Limited Partnership
One Summit Associates Limited Partnership
One Woodstock Associates Limited Partnership
Safe-Bellevue Associates Limited Partnership
Safe-Chester Associates Limited Partnership
Sunset Park West Associates Limited Partnership
Tampa Associates Limited Partnership
Three Lockhart Associates Limited Partnership
Three Stafford Associates Limited Partnership
Tustin Associates Limited Partnership
Twelve AMH Associates Limited Partnership
Two Louisville Associates Limited Partnership
Two Mira Mesa Associates Limited Partnership
Two West Holymart Associates Limited Partnership
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Two Winter Park Associates Limited Partnership
Winthrop California Investors Limited Partnership
Winthrop Preferred Partners
Wisconsin Associates Limited Partnership
Winthrop Partners 79
Winthrop Partners 80
Winthrop Partners 93
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