Exhibit 10
AGREEMENT
This Agreement (the "Agreement") is made and entered into as of the 26th
day of November, 1996, by and between The Xxxxx Corporation ("Xxxxx"), a
Massachusetts corporation with a principal place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and Xxxxxxxx Corp. ("Xxxxxxxx"), a Delaware
corporation with a principal place of business at Xxxxx 000, 0 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000.
WITNESSETH:
WHEREAS, Xxxxxxxx is engaged in the business of investing in, among other
things, real estate limited partnerships;
WHEREAS, Xxxxx and certain of its Affiliates (as defined in Section 11)
sponsored and are engaged in the business of managing, among other things, the
funds listed on Schedule I hereto (individually a "Xxxxx Fund" and collectively,
the "Xxxxx Funds");
WHEREAS, Xxxxxxxx has sought to obtain from Xxxxx lists of the investors
in certain of the Xxxxx Funds for the stated purpose of contacting such
investors in order to attempt to acquire their units in the Xxxxx Funds;
WHEREAS, Xxxxx has refused to provide lists of the investors to Xxxxxxxx,
alleging that they are not entitled to obtain such lists;
WHEREAS, the parties have conferred through their respective counsel and
are desirous of resolving and settling the dispute between them, upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Delivery of Lists: From time to time during the twelve month period
commencing on the date hereof and expiring on the first anniversary date of this
Agreement, Xxxxx will, upon written request from Xxxxxxxx, deliver to Xxxxxxxx
or its designee within 15 business days of receipt of such written request,
current or updated lists of investors in any Xxxxx Fund in which Xxxxxxxx or an
Affiliate of Xxxxxxxx is a limited partner, unitholder, shareholder or otherwise
an equity investor (as the case may be) provided such request includes an
undertaking by Xxxxxxxx to pay the cost of reproducing and delivering such list
within ten business days after receipt of such lists. The lists will be sorted
alphabetically and delivered in both paper format and on 3.5" IBM compatible
computer diskette in ASCII format.
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2. Payment for Lists: Xxxxxxxx will pay Xxxxx $300 for each list
provided pursuant to Section 1, representing the estimated cost of reproducing
and delivering each such list.
3. Restrictions on Activities:
(a) The provisions of this Section 3 shall apply to each Xxxxx Fund for
which an investor list is furnished to Xxxxxxxx or its designee by Xxxxx or an
Affiliate of Xxxxx in accordance with the terms and provisions of this Agreement
pursuant to a request by Xxxxxxxx hereunder as well as to each Xxxxx Fund for
which a request is made by Xxxxxxxx or an Affiliate of Xxxxxxxx pursuant to Rule
14d-5 of Regulation 14D under the Securities Exchange Act of 1934, as amended,
or under any other law, rule or regulation whether such request results in an
investor list being furnished to Xxxxxxxx or an Affiliate of Xxxxxxxx, or the
mailing of materials on behalf of Xxxxxxxx or an Affiliate of Xxxxxxxx. For
purposes of this Section 3, the date on which materials are last mailed pursuant
to said Rule 14d-5 or under any other law, rule or regulation or an investor
list for a Xxxxx Fund is last furnished to Xxxxxxxx, an Affiliate of Xxxxxxxx or
any of their designees is referred to as the "Trigger Date" applicable to such
Xxxxx Fund;
(b) With respect to each Xxxxx Fund to which this Section 3 applies,
without the prior written consent of Xxxxx, which consent may be granted or
withheld in Xxxxx'x sole and exclusive discretion and for any reason, or for no
reason, for the applicable period determined in accordance with the provisions
of subsection (c) of this Section 3, Xxxxxxxx will not, and will not permit any
of its Affiliates to:
(i) in any manner acquire, attempt to acquire, or make a proposal to
acquire, directly or indirectly, more that 25% of the voting securities of such
Xxxxx Fund;
(ii) vote its interest in such Xxxxx Fund on any issue other than in
proportion to the votes of all other interest holders who vote on such issue;
(iii) propose, or propose to enter into, directly or indirectly, any
merger, consolidation, business combination, sale or acquisition of assets,
liquidation or other similar transaction involving such Xxxxx Fund;
(iv) 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,
with respect to any voting securities of such Xxxxx Fund, unless each member of
such group agrees in writing to be bound by all of the terms of this Agreement
applicable to such Xxxxx Fund; PROVIDED, HOWEVER, that Xxxxxxxx and its
Affiliates shall not be deemed to be acting in a "group" in violation of this
Section 3(b)(iv) solely by virtue of their voting their interest in compliance
with Section 3(b)(ii) of this Agreement;
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(v) make or participate in any way, 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 such
Xxxxx Fund;
(vi) sell, transfer or assign any interests in such Xxxxx Fund to
any person or entity other than an Affiliate of Xxxxxxxx, unless such person or
entity agrees in writing to be bound by all of the terms of this Agreement
applicable to such Xxxxx Fund as if all such interests were still owned by
Xxxxxxxx;
(vii) disclose any intention, plan or arrangement relating to such
Xxxxx Fund which is inconsistent with the terms of this Agreement; or
(viii) loan money to, advise, assist or encourage any person in
connection with any of the actions restricted or prohibited by this Agreement
with respect to such Xxxxx Fund;
(c) With respect to each Xxxxx Fund to which this Section 3 applies,
Section 3(b)(i) through Section 3(b)(viii), inclusive, will apply to Xxxxxxxx
and its Affiliates for the period commencing on the Trigger Date applicable to
such Xxxxx Fund and terminating 30 months after such Trigger Date.
(d) Notwithstanding the provisions of Section 3(b)(vi), nothing in this
Agreements shall prohibit Xxxxxxxx or its Affiliates from selling, transferring
or assigning, during any consecutive six-month period, an amount of voting
securities or other interest in any Xxxxx Fund which does not exceed two percent
of the outstanding voting securities or other interest in any such Xxxxx Fund,
PROVIDED that the purpose of such sales, transfers or assignments is not to
evade or circumvent the general intent of this Agreement and provided further
that such sales, transfers or assignments do not have the effect of evading or
circumventing the general intent of this Agreement.
4. Use of Lists, Prohibition on Furnishing to Others: Any investor list
obtained by Xxxxxxxx or any Affiliate of Xxxxxxxx relative to any Xxxxx Fund
will be utilized only for the purpose of contacting investors to inquire as to
whether they wish to sell their units in such Xxxxx Fund to Xxxxxxxx or any
Affiliate of Xxxxxxxx, and for no other purpose. The lists will not be furnished
by Xxxxxxxx or any Affiliate of Xxxxxxxx to any other person or entity (other
than agents and representatives of and advisors to Xxxxxxxx and its Affiliates)
without the consent of Xxxxx.
5. Third Parties: If at any time Xxxxxxxx or any Affiliate of Xxxxxxxx is
approached or contacted by any third party concerning participation in a
transaction involving the assets, businesses or securities of any Xxxxx Fund or
involving any of the actions proscribed by Section 3 hereof or otherwise by this
Agreement, Xxxxxxxx will immediately notify such third party of its inability to
participate in such a
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transaction and its obligation to notify Xxxxx and will thereafter promptly (and
in any event, within five business days) notify Xxxxx of the nature of such
contact and the party or parties making the same. Xxxxx will indemnify, defend
and hold harmless Xxxxxxxx and Xxxxxxxx'x Affiliates from and against any and
all claims, demands or liabilities that may arise as a result of Xxxxxxxx'x
strict compliance with the terms of this Section 5.
6. Compliance with Securities Laws: Xxxxxxxx acknowledges its
obligations under the securities laws and the Rules of the Securities and
Exchange Commission.
7. Provision of Copies of All Communications: Xxxxxxxx covenants and
agrees that it will deliver to Xxxxx, at least five business days before mailing
or otherwise disseminating to investors in any Xxxxx Fund any communication to
be given to one or more investors in any Xxxxx Fund by or on behalf of Xxxxxxxx
or any Affiliate of Xxxxxxxx.
8. Fiduciary Duties of Xxxxx; Safe Harbor Provision, Protection of
Partnership Status: Xxxxxxxx acknowledges that:
(a) Xxxxx and its Affiliates have significant fiduciary obligations to the
investors in the Xxxxx Funds, and has stated that it is entering into this
Agreement, among other reasons, to fulfill those fiduciary obligations;
(b) Xxxxx and its Affiliates may need to take certain further action to
meet its fiduciary obligations, including, without limitation, suspending the
acceptance of transfer paperwork in one or more Xxxxx Funds in order to (i)
avoid the termination of such Xxxxx Fund's status as a partnership under the
Internal Revenue Code of 1986, as amended (the "Code"); (ii) avoid the treatment
of such Xxxxx Fund as a "publicly traded partnership" under the Code; or (iii)
prevent such Xxxxx Fund from falling outside any so-called "safe harbor"
provision relating to taxation or tax status, including provisions relating to
publicly traded partnerships; and
(c) The suspension of the acceptance of transfer paperwork by Xxxxx or its
Affiliates would mean that notwithstanding the presentment of valid transfer
paperwork and the terms of this Agreement, transfers requested by Xxxxxxxx or an
Affiliate of Xxxxxxxx would not be processed or reflected on the books and
records of the applicable Xxxxx Fund.
PROVIDED, HOWEVER, that nothing herein shall be construed, as an
acknowledgment or agreement by Xxxxxxxx that Xxxxx or any Affiliate of Xxxxx has
the right under any particular circumstances to suspend the acceptance of
transfer paperwork, or as a waiver of any future claims of Xxxxxxxx or any
Affiliate of Xxxxxxxx arising out of any such suspension or other similar
action.
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9. RELEASE: FOR AND IN CONSIDERATION OF THE AGREEMENTS HEREIN MADE,
XXXXXXXX DOES HEREBY REMISE, RELEASE AND ACQUIT XXXXX AND ALL OF ITS AFFILIATES,
PREDECESSORS, SUCCESSORS AND ASSIGNS AND EACH OF THE RESPECTIVE AFFILIATES,
PREDECESSORS, SUCCESSORS AND ASSIGNS OF THE FOREGOING FROM AND AGAINST ANY AND
ALL CLAIMS, DAMAGES, COSTS, EXPENSES, ACTIONS AND CAUSES OF ACTION WHICH
XXXXXXXX OR ANY AFFILIATE OF XXXXXXXX (INCLUDING THEIR RESPECTIVE AFFILIATES,
PREDECESSORS, SUCCESSORS AND ASSIGNS) HAD IN THE PAST, NOW HAS, OR MAY IN THE
FUTURE HAVE ARISING FROM OR RELATED TO THE FAILURE OR REFUSAL OF XXXXX TO
PRODUCE AN INVESTOR LIST OF ANY XXXXX FUND, EXCEPT FOR SUCH A FAILURE OR REFUSAL
IN VIOLATION OF THE PROVISIONS OF THIS AGREEMENT.
10. Notices: Any and all notices required or permitted hereunder shall
be in writing and shall be deemed given or served, as the case may be, upon
actual delivery to the parties at the following addresses:
If to Xxxxxxxx: Xxxxxxxx Corp.
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxxxxx
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Xxxxx: The Xxxxx Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
with a copy to: Xxxxx X. Xxxxxxxxx, Esq.
Vice President and General Counsel
The Berkshire Group
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
11. Affiliates: For purposes of this Agreement, the term "Affiliate" shall
mean with respect to any person or entity, (i) any other person or entity which
controls, is controlled by or is under control with such person or entity (ii)
the officers, directors and partners of such entity, and (iii) the immediate
family members of such person or of any person described in clause (i) or (ii).
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12. No Admissions; Confidentiality: The parties agree that this Agreement
is being entered into solely to settle a dispute between them, and nothing
herein shall be deemed to constitute an admission of liability on the part of
Xxxxx, all such liability being expressly contested. All requests for investor
lists made under this Agreement, and the furnishing of such lists, shall be kept
strictly confidential by the parties hereto, except to the extent that
disclosure of any such request or the furnishing of any such list is required by
applicable law or regulation or by court order.
13. Enforcement: The parties agree that each shall be entitled to
equitable relief, including injunctive relief and specific performance, in the
event of any breach of the provisions of this Agreement, in addition to all
other remedies available at law or in equity. In the event either party must
refer this agreement to an attorney for enforcement the prevailing party shall
be entitled to all costs of enforcement, including attorneys' fees.
14. Governing Law; Venue and Jurisdiction: This Agreement shall be
governed by the laws of the Commonwealth of Massachusetts without regard to
principles of conflict of law thereof. The parties agree that the federal and
state courts located within the Commonwealth of Massachusetts shall have
exclusive jurisdiction over disputes arising hereunder, and the parties hereby
consent to such venue and submit to the jurisdiction of such courts.
15. Captions: Captions and section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
16. Amendments: This Agreement may be amended, changed, modified,
altered or terminated only by a written instrument or written instruments signed
by all of the parties hereto.
17. Severability: In the event any provision of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof.
18. Counterparts: This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto, intending to be legally
bound, has caused this Agreement to be duly executed on its behalf as of the
date first above written.
XXXXXXXX CORP.
By: /s/ Xx Xxxxxxx
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Xx Xxxxxxx
President
THE XXXXX CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Xxxxxxxx Xxxxxx
President
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SCHEDULE 1
Xxxxx Cash Plus Limited Partnership
Xxxxx Cash Plus-II Limited Partnership
Xxxxx Cash Plus-V Limited Partnership
Xxxxx Insured Plus Limited Partnership
Xxxxx Insured Plus-II Limited Partnership
Xxxxx Insured Plus-III Limited Partnership
Xxxxx Insured Mortgage Limited Partnership
Xxxxx Government Income Trust
Xxxxx Government Income Trust II
Xxxxx Associates 1980-1
Xxxxx Realty Fund, LTD-III
Xxxxx Realty Limited Partnership-IV
Xxxxx Realty Limited Partnership-V
Xxxxx Realty Limited Partnership-VII
Xxxxx Institutional Mortgage Fund Limited Partnership
Woodlake/Tanglewood Associates Limited Partnership
Maryland Associates Limited Partnership
Turtle Creek Associates Limited Partnership
Xxxxxxxx Village Associates Limited Partnership
Tracewood Associates Limited Partnership
