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EXHIBIT 11(c)
[EVEREST LETTERHEAD]
April 29, 1998
Global Capital Management, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Gentlemen:
This letter agreement confirms our mutual agreement to be bound by the
terms of this letter agreement, including the terms and conditions set forth in
Exhibit A annexed hereto and made a part hereof. This agreement is intended to
be legally binding and enforceable upon execution and delivery hereof.
Each of the parties represents and warrants to the other that (1) it has
the right, power and authority to enter into this letter agreement and perform
its obligations hereunder, (2) upon the execution of this letter agreement by
each of the parties hereto, this letter agreement will constitute the legal,
valid and binding obligation of such party, enforceable against such party in
accordance with its terms, and (3) no consent or approval of any third party or
governmental agency or authority is required for such party to execute and
deliver this letter agreement or to perform its obligations hereunder.
Each of the parties hereto agrees that the terms of this letter
agreement are confidential and may not be disclosed by any party hereto, except
as may be required by law and except to the principals and authorized
representatives of the parties hereto without the written consent of all of the
parties. Except as may be required by law, any public announcement regarding
this letter agreement or the transactions contemplated herein may not be made by
any party without the prior consent of all other parties hereto. If public
announcement or disclosure is required by law, the disclosing party shall use
reasonable efforts to consult with the other party, and obtain the approval of
the other party of the announcement and disclosure to be made.
This letter agreement shall be governed by and interpreted in accordance
with the laws of the State of California, without regard to the conflicts of law
provisions thereof. Nothing herein shall be deemed to grant jurisdiction to the
State of California over any dispute concerning this letter agreement.
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This letter agreement may be executed in separate counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
This letter agreement supercedes any and all prior agreements, written
or oral, by or among any of the parties hereto with respect to the subject
matter hereof and may not be amended or otherwise modified except in writing
signed by all of the parties hereto.
This letter agreement shall be binding upon the parties hereto and their
respective successors and assigns.
Any party may execute this letter agreement by transmitting a copy of
its signature by facsimile to the other parties. In such event the signing party
shall deliver an original of the signature page to each of the other parties
within one business day of signing and failure to so deliver such originals
shall result in the facsimile copy of that party's signature being treated as an
original.
Very truly yours,
EVEREST TAX CREDIT INVESTORS, LLC
By: Everest Properties II, LLC
Manager
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Executive Vice President
EVEREST PROPERTIES II, LLC
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Executive Vice President
ACCEPTED AND AGREED TO AS
OF THE DATE FIRST ABOVE WRITTEN:
GLOBAL CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
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VALLEY CREEK CAPITAL, LLC
By: Global Capital Management, Inc.
Manager
By: /s/Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
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EXHIBIT A
OPTION TO PURCHASE SECURITIES
ADDITIONAL EVEREST TENDER OFFERS CONTEMPLATED
Attached hereto as Exhibit A-1 is a list of additional
partnerships (the "Additional Partnerships"), the securities of which
may be subject to tender offers by Everest (the "Additional Offers" or
the "Tender Offer"). The BACs and other securities tendered pursuant to
the Tender Offers are referred to herein as "Tendered Securities".
OPTION TO PURCHASE SECURITIES; PAYMENT OF SECURITIES AND EXPENSES
Subject to the terms and conditions set forth below, Everest
grants, or will cause to be granted, to Valley an option to purchase up
to 50% of the securities tendered in each Additional Offer.
Upon the expiration of a Tender Offer which is subject to any of
the foregoing options, the party making such offer (hereinafter the
bidding party) shall provide written notice to the holder of the
forgoing options (hereinafter an option holder) of the amount of
Tendered Securities accepted by such bidding party pursuant to such
Tender Offer. Within five business days following the bidding party's
notice to the option holder, the option holder shall notify the bidding
party in writing whether or not it elects to exercise its option and to
what extent. If the option holder fails to notify the bidding party of
the exercise of its option within such five business day period, the
option holder shall be deemed not to have exercised its option. If such
option is exercised, the option holder shall pay the bidding party, by
wire transfer, on the later of (a) three business days after the option
holder delivers written notice of its election to exercise, (b) one
business day after the bidding party has given notice to the option
holder that the bidding party will pay tendering security holders in
accordance with the terms of the Tender Offer (such notice to be given
by the bidding party to the option holder not more than one business day
prior to the date of such payment), (c) the date that the bidding party
makes such payment and (d) two business days after the date the bidding
party provides the option holder with written confirmation of the
transfer of the number of Tendered Securities with respect to which the
option holder exercised its option (the "Option Securities") an amount
equal to (i) the option securities multiplied by the price per Tendered
Security paid by the bidding party in the applicable Tender Offer plus
(ii) the option holder's share of the "Total Expenses" (as defined
below) for such applicable Tender Offer (see "ALLOCATION OF EXPENSES"
below). The bidding party will deliver (or will cause to be delivered),
concurrently with the receipt of such payment from the option holder by
the bidding party, a confirmation from the subject partnership setting
forth the number of Option Securities that will be transferred to the
option holder.
ALLOCATION OF EXPENSES
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At the time of purchase of any Option Securities, the option
holder shall pay to the bidding party a portion of Total Expenses
related to such Tender Offer equal to the lesser of (a) $25,000 and (b)
Total Expenses multiplied by a fraction, the numerator of which is the
number of Tendered Securities purchased by the option holder and the
denominator of which is the total number of Tendered Securities
purchased pursuant to the Tender Offer. "Total Expenses" with respect to
each Tender Offer means all third-party out-of-pocket costs and expenses
incurred by the bidding party, or its affiliates (including attorneys
fees and expenses in connection with the preparation and filing of any
Tender Offer documents, but excluding litigation expenses) with respect
to each Tender Offer, including, without duplication, Commission filing
fees, the out-of-pocket expenses of any person for acting as the
information agent/depositary for the Tender Offer, printing and mailing
expenses, and the out-of-pocket expenses of the general partners of
target partnerships which are paid for by the bidding party. Total
Expenses shall not include the costs of purchasing the Tendered
Securities or any non-third-party costs, including the overhead of the
bidding party. Each party will provide, upon the execution and delivery
hereof, an estimate of its costs and expenses incurred to date in
connection with any Tender Offers and shall provide, upon request,
invoices or other appropriate evidence of the incurrence of costs and
expenses constituting Total Expenses hereunder. Liabilities, costs,
obligations and damages incurred by any party in connection with any
litigation or threatened litigation relating to, or arising from, the
Tender Offers ("Tender Offer Litigation") shall be borne by the bidding
party and not the option holder. The bidding party agrees to indemnify
and defend the option holder and its affiliates, officers, directors,
members, employees and agents from and against all liabilities, costs,
obligations and damages in connection with Tender Offer Litigation
except to the extent that the foregoing arise out of any misstatements
or intentional acts of the option holder.
STANDSTILL AGREEMENT
Everest covenants and agrees that neither it nor any person who
is its "Affiliate" (as defined under Rule 405 of the Securities Act of
1933, as amended) will, directly or indirectly, make any offer or take
any act which is competitive with Valley and Global Capital Management,
Inc. ("Global") covenant and agree that neither they nor any person who
is their Affiliate will, directly or indirectly, make any offer or take
any act which is competitive with the Everest Offers or the Additional
Offers. The parties hereto acknowledge and agree that nothing in this
agreement shall cause them to form, become, join or otherwise
participate in a "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) with respect to any voting
securities of any partnership which is the target of a Tender Offer (the
"Covered Partnerships"). The foregoing restrictions shall continue in
full force and effect from the date hereof until the expiration of the
Tender Offers which are the subject matter hereof.
CONDUCT OF TENDER OFFER(S)
All decisions relating to the conduct of the Tender Offers and
the acquisition and transfer of Tendered Securities pursuant thereto,
including without limitation any change
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in the terms or waiver of any of the conditions thereof, shall be made
solely by the bidding party. Notwithstanding the foregoing, if requested
by the option holder, the bidding party agrees to consult with the
bidding party prior to commencing a Tender Offer with regard to the
purchase price offered therein and prior to increasing the offered price
in any Tender Offer commenced prior to or after the date hereof.
COOPERATION
The parties shall cooperate and provide each other with such
information as may be necessary or desirable to disclose the
transaction(s) contemplated hereby in accordance with applicable
securities laws and the rules and regulations promulgated thereunder.
Additionally, the bidding party agrees to furnish to the option holder,
promptly upon request, a report of securities tendered in any pending
Tender Offer.
NO OTHER CONTRACTS
Except as expressly set forth herein, there are no contracts,
arrangements, understandings or relationships between Everest, on the
one hand, and Valley or Global, on the other hand, with respect to the
BACs or the securities of any Covered Partnerships.
FURTHER ASSURANCES
Each of the parties agrees that it shall take, and will cause its
affiliates to take, whatever action or actions as are deemed by counsel
to any party hereto to be reasonably necessary, advisable or convenient
from time to time to effectuate the provisions or intent of this
agreement, and to that end, each party agrees that it will execute,
acknowledge and deliver any further instruments or documents as give
force and effect to this letter agreement or any of the provisions
hereof, or to carry out the intent of this letter agreement or any of
the provisions hereof. Global hereby guarantees full performance of this
agreement by Valley, and its Affiliates. Everest Properties II, LLC
hereby guarantees full performance of this agreement by Everest Tax
Credit Investors, LLC and its Affiliates.
REMEDIES
It is understood and agreed that monetary damages would be any
inadequate remedy for violation of this agreement, and in the case of an
actual breach by a party of the provisions hereof, any one or more of
the other parties shall be entitled to relief by way of injunction,
specific performance or other equitable relief. The prevailing party in
any dispute arising out of this letter agreement shall, in addition to
any monetary damages or equitable relief, be entitled to recover from
the other party, the prevailing party's attorney's fees and expenses
(including the time of personnel employed by Global or Everest) incurred
in connection with such dispute.
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NOTICES
Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, sent by facsimile
transmission or sent by reputable overnight courier, postage or other
charges prepaid. Any such notice shall be deemed given when so delivered
personally, or by facsimile transmission when confirmed electronically
or, if sent by overnight courier, one day after delivery to the courier,
as follows:
If to Valley or Global, to:
Global Capital Management, Inc.
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Everest, to:
Everest Properties
000 X. Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxxx or Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any party may designate another address or person for receipt of
notices hereunder by notice given in accordance with this section to the
other party.
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EXHIBIT A-1
ADDITIONAL PARTNERSHIPS
WNC California Housing Tax Credit Fund, LP
WNC California Housing Tax Credit Fund II, LP
WNC California Housing Tax Credit Fund III, LP
WNC Housing Tax Credit Fund II, LP
WNC Housing Tax Credit Fund III, LP
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