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Exhibit 9(c)
S/M REAL ESTATE FUND VII, LTD.
3 World Financial Center - 29th Fl.
New York, N.Y. 10285
June 23, 1997
Personal and Confidential
Peachtree Partners
X.X. Xxx 00000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx X. Xxxxxx
Dear Xx. Xxxxxx:
The purpose of this letter is to set forth our understanding with
regard to any proposed acquisition of outstanding units of limited partnership
interests ("Units") of S/M Real Estate Fund VII, Ltd., a Texas limited
partnership (the "Partnership"), from holders of Units (each a "Unitholder" and
collectively, the "Unitholders") by Peachtree Partners, Xxx X. Xxxxxx or any
person who is an Affiliate (as defined below) (collectively, "you").
In response to your request earlier this month and in consideration of
the agreements set forth in this letter agreement, the Partnership agrees to
provide you a current list of the names and addresses of the Unitholders along
with the number of Units owned by each of them in a computer readable form
reasonably requested by you. You agree that you may only use the list to acquire
up to 4.9% (including Units acquired through all other means) of the
Partnership's outstanding Units.
You represent and warrant that on the date hereof you beneficially own
not more than ________ (5) Units. You also agree that prior to the second
anniversary of the date of this letter agreement, neither you nor any person who
is your Affiliate (as defined under Rule 405 of the Securities Act of 1933, as
amended) and, in addition including any person you or your Affiliate has an
advisory relationship with who you will procure to be bound by the terms of this
agreement, will, without the prior written consent of the Partnership, which may
be withheld for any reason, directly or indirectly, (i) in any manner including,
without limitation, by tender offer (whether or not pursuant to a filing made
with the Securities and Exchange Commission), acquire, attempt to acquire or
make a proposal to acquire, directly or indirectly, more than 4.9% (including
Units acquired through all other means) of the outstanding Units of the
Partnership from any Unitholder, Unitholders or otherwise, (ii) seek or propose
to enter into, directly or indirectly, any merger, consolidation, business
combination, sale or acquisition of assets, liquidation, dissolution or other
similar
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transaction involving the Partnership, (iii) 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 the Partnership, (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 (the "Exchange Act")) with
respect to any voting securities of the Partnership, (v) disclose to any third
party any intention, plan or arrangement inconsistent with the terms of this
letter agreement or (vi) loan money to, advise, assist or encourage any person
in connection with any action inconsistent with the terms of this letter
agreement.
You also agree during such two year period that the Partnership shall
be entitled in its absolute sole discretion to deny any proposal or request,
directly or indirectly, to amend, waive or terminate any provision of this
letter agreement. In addition, you agree that you will notify the Partnership at
least five days before initiating any communication with Unitholders and provide
the Partnership a copy of such communication (if written) with such notice.
You have advised us that, if requested by us, you will incorporate in
any communication with Unitholders a statement as to the net asset value per
unit as determined by the Partnership. In addition, if you commence a tender
offer for less than 5% of the outstanding Units, you will include verbatim the
following language in any such communication:
"TENDER OFFERS OF THIS NATURE ARE NOT REQUIRED TO COMPLY
WITH CERTAIN RULES AND REGULATIONS OF THE SECURITIES AND
EXCHANGE COMMISSION. Accordingly, this tender offer does not need to
comply with certain disclosure requirements and rules governing tender
offers set forth in the Securities Exchange Act of 1934."
You understand that the general partners of the Partnership may
consider from time to time selling all or substantially all of the assets of the
Partnership or entering into any other transaction determined by the general
partners to be in the best interests of the Unitholders and the Partnership. The
result of any such transaction, if approved by a majority vote of the
Unitholders, might be the dissolution and liquidation of the Partnership in
accordance with the partnership agreement. Accordingly, in order to avoid
disrupting any possible sale of all or substantially all of the Partnership's
assets or any other transaction determined by the general partners to be in the
best interests of the Unitholders and the Partnership and any required vote of
Unitholders, you agree that, prior to the two-year anniversary of the date of
this letter agreement, all Units obtained by you pursuant to any means will be
voted by you on all issues in the same manner as by the majority of all other
Unitholders who vote on any such proposal.
If at any time during such two year period you are approached by any
third party concerning participation in any transaction involving the assets,
business or securities of the Partnership or involving any action inconsistent
with the terms of this letter agreement, you will promptly inform the
Partnership of the nature of any such contact and the parties thereto and you
may inform such
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third party that this letter agreement requires you to so notify the
Partnership. You shall not, without the prior written consent of the
Partnership, disclose to any third party the list of Unitholders' names,
addresses and number of Units held that was provided to you by the Partnership.
You will not sell any Units owned by you prior to the second
anniversary of the date of this letter agreement, unless each buyer or
transferee agrees in writing with the Partnership to be bound by the terms and
conditions of this letter agreement until such second anniversary.
We each hereby acknowledge that we are aware, and that we will advise
our respective Affiliates of our respective responsibilities under the
securities laws. We each agree that the other of us or our respective
Affiliates, as the case may be, shall be entitled to equitable relief, including
injunctive relief and specific performance in the event of any breach of the
provisions of this letter agreement, in addition to all other remedies available
at law or in equity.
In case any provision in or obligation under this letter agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
This letter agreement shall be governed by the laws of the State of New
York without giving effect to principles of conflicts of laws thereof. This
letter agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which together constitute one and the same instrument.
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If you agree with the foregoing, please sign and return two copies of
this letter agreement, which will constitute our agreement with respect to the
subject matter of this letter agreement.
Very truly yours,
S/M REAL ESTATE FUND VII, LTD.
By: SM7 Apartment Investors, Inc.
Its: General Partner
By:
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Name: Xxxxxxx X. Xxxxx
Title: President
Confirmed and agreed to as of
the date first above written:
PEACHTREE PARTNERS
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: President
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