-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CCPenstWgFCC7CZYXyL3R1kOJoWlz7ELijW/1JsGchoh7OARbGNvzoxF5Q2UavfH y7OcfJNIqi8uGC/F6ozBMg== 0001133796-02-000079.txt : 20020502 0001133796-02-000079.hdr.sgml : 20020501 ACCESSION NUMBER: 0001133796-02-000079 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020502 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WINTHROP PARTNERS 80 LTD PARTNERSHIP CENTRAL INDEX KEY: 0000315275 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 042693546 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56701 FILM NUMBER: 02631049 BUSINESS ADDRESS: STREET 1: ONE INTERNATIONAL PLACE STREET 2: C/O FIRST WINTHROP CORP CITY: BOSTON STATE: MA ZIP: 02110 BUSINESS PHONE: 617-330-86 MAIL ADDRESS: STREET 1: C/O FIRST WINTHROP CORP STREET 2: ONE INTERNATIONAL PL CITY: BOSTON STATE: MA ZIP: 02110 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EQUITY RESOURCE GROUP INC ET AL CENTRAL INDEX KEY: 0001023846 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 642723870 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 14 STORY SE CITY: CAMBRIDGE STATE: MA ZIP: 02138 BUSINESS PHONE: 6178764800 MAIL ADDRESS: STREET 1: 14 STORY SE CITY: CAMBRIDGE STATE: MA ZIP: 02138 SC TO-T/A 1 k20461scto.txt AMENDMENT NO. 1 TO SC TO-T SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule TO/A Tender Offer Statement Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 Amendment No. 1 (Name of Subject Company) Winthrop Partners 80 Limited Partnership A Massachusetts limited partnership at $125 Net Per Unit by Equity Resource Lexington Fund Limited Partnership, a Massachusetts limited partnership Equity Resources Group, Inc. Eggert Dagbjartsson Limited Partnership Units Eggert Dagbjartsson, Executive Vice President Equity Resources Group, Inc. 44 Brattle Street Cambridge, MA 02138 (617) 876-4800 Calculation of Filing Fee ================================================================================ Transaction Valuation* Amount of Filing Fee $1,141,250 $228.25 - -------------------------------------------------------------------------------- * For purposes of calculating the filing fee only. This calculation assumes the purchase of 9,130 Units at a purchase price of $125 per Unit in the Partnership. [_] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. - -------------------------------------------------------------------------------- Amount Previously Paid: $228.25 Filing Party: Equity Resource Lexington Fund LP Form of Registration No.: Schedule TO/T Date Filed: April 19, 2002 - -------------------------------------------------------------------------------- ================================================================================ AMENDMENT NO. 1 This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission on April 19, 2002 (the "Schedule TO") by Equity Resources Lexington Fund Limited Partnership, a Massachusetts limited partnership, Equity Resources Group, Inc., a Massachusetts corporation, and Eggert Dagbjartsson, an individual (together, the "Purchaser") to purchase 9,130 units (the "Units") of limited partnership interests in Winthrop Partners 80 Limited Partnership, a Massachusetts limited partnership (the "Partnership"), at $125 for each Unit, net to the seller in cash, without interest, less the amount of any distributions declared or paid from any source by the Partnership with respect to the Units after April 19, 2002 (without regard to the record date), upon the terms and subject to the conditions set forth in this Offer to Purchase (the "Offer to Purchase") and in the Agreement of Sale, as each may be supplemented or amended from time to time (which together constitute the "Offer"). The information contained in the Offer to Purchase is incorporated herein by reference. Capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Offer to Purchase. Item 1--Summary Term Sheet The seventh question of the Summary Term Sheet is amended in its entirety to read as follows: "Do you have the financial resources to make payment and is your financial condition relevant to my decision to tender in the offer? The Purchaser expects that approximately $1,141,250 (exclusive of fees and expenses) will be required to purchase 9,130 Units, if tendered. The Purchaser will obtain those funds from capital contributions from its members, which have an aggregate net worth substantially in excess of the amount required to purchase the 9,130 Units. The Purchaser is not a public company and has not prepared audited financial statements. We do not think our financial condition is relevant to your decision whether to tender in the offer because the form of payment is cash, and we currently have sufficient cash and cash equivalents relative to the consideration to be paid in the offer. Additionally, the offer is not subject to any financing condition. Limited Partners should note that the Purchaser is currently offering to purchase interests in other partnerships. These concurrent offers will not impact the Purchaser's ability to purchase Units tendered under this Offer. See "THE OFFER--Section 13--Source and Amount of Funds."" The thirteenth question of the Summary Term Sheet is amended in its entirety to read as follows: "Will there be any change to the Partnership or my Units if I decide not to tender my Units? It is expected that following the offer, the business and operations of the Partnership will be continued substantially as they are currently being conducted today. We are acquiring the Units for investment purposes only, not with a view toward affecting management of the Partnership. You should note, however, that if we purchase an additional 9,130 Units, the Lexington Fund and affiliated funds controlled by Equity Resources Group will own 20.45% of the outstanding Units. Although this would not represent a majority interest, this increase in ownership would give us and our affiliates increased control over any vote of the limited partners. See "THE OFFER--Section 8--Future Plans" and "THE OFFER--Section 14--Voting Power."" Item 4--Terms of the Transaction The Offer Section 2 "Proration; Acceptance for Payment and Payment for Units" is amended in its entirety to read as follows: "If fewer than 9,130 Units are validly tendered and not properly withdrawn prior to the Expiration Date, the Purchaser, upon the terms and subject to the conditions of the Offer, will accept for payment all of those Units so tendered. If more than 9,130 Units are validly tendered and not properly withdrawn on or prior to the Expiration Date, the Purchaser, upon the terms and subject to the conditions of the Offer, will accept for payment 9,130 Units so tendered, on a pro rata basis, with appropriate adjustments to avoid tenders of fractional Units. In the event that proration is required, the Purchaser will determine the precise number of Units to be accepted and will announce the final results of proration as soon as practicable. A letter announcing the final results of proration will be mailed to all tendering limited partners and a press release announcing the final results of proration will be released. The Purchaser will not pay for any Units tendered until after the final results of proration have been determined. If, prior to the Expiration Date, the Purchaser increases the Offer Price, the increased Offer Price will be paid for all Units accepted for payment pursuant to the Offer, whether or not those Units were tendered prior to such increase." The third paragraph of Section 3 "Procedures for Tendering Units" is amended in its entirety to read as follows: "Backup Federal Income Tax Withholding. A tendering Limited Partner must verify that Limited Partner's correct taxpayer identification number or social security number, as applicable, and make certain warranties and representations that it is not subject to backup federal income tax withholding as set forth in the Agreement of Sale. Any Limited Partner wishing to tender Units under the Offer who is subject to backup withholding, including nonresident aliens and foreign corporations, should contact the Purchaser's information agent for information regarding the tender procedure for limited partners subject to backup withholding." The first paragraph of Section 4 "Withdrawal Rights" is amended in its entirety to read as follows: "Except as otherwise provided in this Section 4, tenders of Units made pursuant to the Offer are irrevocable. Units tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date. In the event that the Offer is extended beyond the Expiration Date, the Units tendered may be withdrawn at any time prior to the end of the extension period. In addition, limited partners have a right to withdraw tendered shares at any time after the expiration of the offer until we accept Units for payment. Tendering limited partners will additionally have withdrawal rights as provided under Exchange Act 14(d)(5)." The second paragraph of Section 4 "Extension of Tender Period; Termination; Amendment" is amended in its entirety to read as follows: "Any extension, or amendment will be followed as promptly as practicable by a mailing notifying each Limited Partner, the mailing in the case of an extension to be issued no later than 9:00 a.m., Eastern Time, on the next business day after the previously scheduled Expiration Date, in accordance with Rule 14e-1(d) under the Exchange Act. Any extension or amendment will be announced by press release on the date of the amendment or extension in accordance with Rule 14e-1(d). Any mailing or press release announcing an amendment or extension will include the approximate number of Units tendered at the time of the extension or amendment." The third paragraph of Section 7 "Purpose and Effects of the Offer" is amended in its entirety to read as follows: "Though there have been changes in the Partnership since the GP Valuation, the Purchaser believes that the net effect of those changes is not material. A portion of the cash used in the GP Valuation has been distributed to limited partners, decreasing the value of the Partnership. This decrease in value has been offset by the fact that the Partnership's Victoria, TX property is now fully leased and by the fact that the percentage rents collected at the Partnership's Nebraska City, NE and Livingston, TX properties have increased. In determining the fair market value of Units, the Purchaser discounted the GP Valuation 30% based on the long-term illiquid nature of the Units, the Unitholders' lack of control over the Partnership's operations and the uncertainty concerning the Partnership's future operations. With this discount, the Purchaser arrived at a fair market value of $126.70 per Unit. Applying an illiquidity discount is standard for real estate limited partnerships. According to the January/February 2002 Partnership Spectrum, the average annual discounts applied to the purchase of minority interests in publicly-registered real estate limited partnerships since 1992 have ranged from 25% to 44%." Section 14 "Voting Power" is amended in its entirety to read as follows: "Though the Lexington Fund currently owns no units in the Partnership, funds controlled by Equity Resources Group currently own 206 Units, representing 0.45% of the Partnership's outstanding Units. If the Purchaser purchases an additional 9,130 Units, the Lexington Fund and the funds controlled by Equity Resources Group will own 20.45% of the Partnership's outstanding Units. Although this would not represent a majority interest, this increase in ownership would give the Lexington Fund and the funds controlled by Equity Resources Group increased control over any vote of the Limited Partners." Section 15 "Certain Conditions of the Offer" is amended to include the following: "The Purchaser confirms that it has disclosed all conditions of the Offer and that all conditions of the Offer must be satisfied prior to the expiration of the Offer." Item 5-- Past Contacts, Transactions, Negotiations and Agreements Section 9--"Past Contact and Negotiations with General Partner" is amended in its entirety to read as follows: "Since 1983, and continuing until the date of this Offer, various affiliates of the Purchaser have engaged in ongoing conversations and exchanges of correspondence with various affiliates of the Partnership and affiliates of the general partner of the Partnership with regard to these affiliates' ownership of Units and other partnership interests in which the general partner of the Partnership is affiliated. These conversations have principally involved requests to obtain the list of Limited Partners and other information concerning the Partnership. In 2000, as a result of these conversations, an affiliate of the Purchaser entered into an agreement with Winthrop Financial Associates, a Maryland limited partnership. Winthrop Financial Associates is the manger of the general partners of the Partnership. One part of this agreement gives Winthrop Financial Associates the option to acquire up to 50% of all units which the Purchaser acquires in certain partnerships, including this Partnership, on the same terms as the Purchaser. In the past, Winthrop Financial Associates has exercised this option with regard to some offers made by the Purchaser for units in other partnerships and has declined to exercise this option with regard to other offers made by the Purchaser for units in other partnerships. In its response to the Purchaser's Offer, Winthrop Financial Associates has indicated that it will exercise its right to acquire 50% of the Units tendered as a result of the Offer. Neither the Partnership, the General Partner or any of their affiliates have disclosed to the Purchaser or disclosed in any filings made by the Partnership with the SEC, any plans or intentions to liquidate the Partnership." Item 7--Source and Amount of Funds or Other Consideration Section 13--"Source and Amount of Funds" is amended in its entirety to read as follows: "The Purchaser expects that approximately $1,100,000 (exclusive of fees and expenses) will be required to purchase 9,130 Units, if tendered. The Purchaser will either use cash on hand or will obtain those funds from capital contributions from its members, each of whom have an aggregate net worth substantially in excess of the amount required to be contributed to the Purchaser to purchase the 9,130 Units. The Purchaser is not a public company and has not prepared audited financial statements. The Purchaser and its members have adequate cash and cash equivalents to fund payment to selling limited partners. As of April 22, 2002, the Purchaser had over $700,000 in cash on hand and total assets in excess of $5,000,000. The members of the Partnership have informed the Partnership that they will contribute any amount required to purchase the 9,130 Units. No third-party financing is required in connection with the Offer. The Purchaser represents to all tendering Limited Partners that the Purchaser has the financial wherewithal to accept for payment and thereby purchase all 9,130 Units which the Purchaser has offered to purchase in this Offer to Purchase. No alternative financing plan exists." Item 11--Additional Information Item 11 is hereby amended to add the following: "The information set forth in the agreement of sale and assignment attached hereto as Exhibit (a)(5). The agreement between the Purchaser and the general partner discussed in "THE OFFER--Section 9--"Past Contact and Negotiations with General Partner" attached hereto as Exhibit (d)." Item 12--Exhibits Item 12 is hereby amended by adding the following exhibits, each of which is attached: (a)(5) Agreement of Sale and Assignment. (d) Agreement between Purchaser and General Partner SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: May 2, 2002 Equity Resource Lexington Fund Limited Partnership, a Massachusetts limited partnership By: /s/ Eggert Dagbjartsson -------------------------------- Eggert Dagbjartsson General Partner Equity Resources Group, Inc. A Massachusetts Corporation By: /s/ Eggert Dagbjartsson -------------------------------- Eggert Dagbjartsson Executive Vice President Eggert Dagbjartsson By: /s/ Eggert Dagbjartsson -------------------------------- Eggert Dagbjartsson Eggert Dagbjartsson EXHIBIT INDEX - -------------------------------------------------------------------------------- Exhibit No. Description - ----------- ------------ - -------------------------------------------------------------------------------- (a)(1) - Offer to Purchase, dated April 19, 2002* - -------------------------------------------------------------------------------- (a)(2) - Transmittal letter, dated April 19, 2002* - -------------------------------------------------------------------------------- (a)(3) - Agreement of Sale* - -------------------------------------------------------------------------------- (a)(4) Summary Advertisement* - -------------------------------------------------------------------------------- (a)(5)-- Agreement of Sale and Assignment - -------------------------------------------------------------------------------- (a)(6)-- Not applicable. - -------------------------------------------------------------------------------- (a)(7)-- Not applicable. - -------------------------------------------------------------------------------- (a)(8)-- Not applicable. - -------------------------------------------------------------------------------- (b) - Not applicable. - -------------------------------------------------------------------------------- (c) - Not applicable. - -------------------------------------------------------------------------------- (d) - Agreement between Purchaser and General Partner. - -------------------------------------------------------------------------------- (e) - Not applicable. - -------------------------------------------------------------------------------- (f) - Not applicable. - -------------------------------------------------------------------------------- (g) Not applicable - -------------------------------------------------------------------------------- (h) Not applicable. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- * Previously filed EX-99.(A)(5) 3 k20461exa5.txt AGREEEMENT OF SALE AND ASSIGNMENT EXHIBIT (a)(5) AGREEMENT OF SALE AND ASSIGNMENT The undersigned Limited Partner (the "Seller") does hereby sell, assign, transfer, convey and deliver to Equity Resource Lexington Fund LP, a Massachusetts limited partnership, or its designee ("Lexington Fund" or the "Purchaser"), all of the Seller's right, title and interest in the units (the "Units") of limited partnership interests in Winthrop Partners 80 Limited Partnership, a Massachusetts limited partnership (the "Partnership") being sold pursuant to this Agreement of Sale and Assignment ("Agreement") and indicated on the signature pages to this Agreement, for a purchase price of $125 per Unit and less the amount of any distributions declared or paid from any source by the Partnership with respect to the Units after April 19, 2002 without regard to the record date or whether such distributions are classified as a return on, or a return of, capital. PAYMENT FOR UNITS BEING SOLD PURSUANT TO THIS AGREEMENT WILL BE MADE WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE "EXPIRATION DATE" SET FORTH IN THE OFFER TO PURCHASE ACCOMPANYING THIS AGREEMENT, PROVIDED LEXINGTON FUND HAS RECEIVED AND ACCEPTED THIS AGREEMENT, PROPERLY COMPLETED AND DULY EXECUTED AND HAS RECEIVED ASSURANCES FROM THE PARTNERSHIP THAT THE SELLER'S ADDRESS WILL BE CHANGED TO THE PURCHASER'S ADDRESS PURSUANT TO THE TERMS AND CONDITIONS OF THE OFFER. The Seller hereby represents and warrants to the Purchaser that the Seller owns all of the Units being sold hereunder and has full power and authority to validly sell, assign, transfer, convey, and deliver to the Purchaser such Units, and that when any such Units are accepted for payment by the Purchaser, the Purchaser will acquire good, marketable and unencumbered title thereto, free and clear of all options, liens, restrictions, charges, encumbrances, conditional sales agreements, or other obligations relating to the sale or transfer thereof, and such Units will not be subject to any adverse claim. The Seller represents and warrants that the Seller is a "United States person" as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended, or if the Seller is not a United States person, the Seller does not own beneficially or of record more than 5 percent of the outstanding Units. The sale of Units pursuant to this Agreement shall include, without limitation, all rights in, and claims to, any Partnership profits and losses, cash distributions, voting rights and other benefits of any nature whatsoever, distributable or allocable to such Units under the Partnership's Agreement of Limited Partnership. Upon the execution of this Agreement by the Seller, Purchaser shall have the right to receive all benefits and cash distributions and otherwise exercise all rights of beneficial ownership of such Units. By executing this Agreement, Seller assigns to Purchaser (i) the Seller's right to pursue any legal or other action of recovery against any person or entity which might be liable in any way to the Seller as a result of his purchase or ownership of the Units (or any interest therein) being sold hereby and (ii) any existing or future rights arising from the refusal of the Partnership or its General Partner to recognize the substitution of Purchaser as a limited partner, the assignment of Seller's beneficial ownership of the Units to Purchaser, or the assignment of claims effected by clause (i) of this sentence. Any damages or recoveries resulting from such actions, whether initiated by the Purchaser or by other parties will be due and payable to the Purchaser. Seller, upon execution of this Agreement, hereby irrevocably constitutes and appoints Purchaser as its true and lawful agent and attorney-in-fact with respect to the Units being sold hereby with full power of substitution. This power of attorney is an irrevocable power, coupled with an interest of the Seller to Purchaser, to (i) execute, swear to, acknowledge, and file any document relating to the assignment of the Units being sold hereby on the books of the Partnership that are maintained with respect to the Units and on the Partnership's books maintained by the General Partner of the Partnership, or amend the books and records of the Partnership as necessary or appropriate for the assignment of the Units, (ii) vote or act in such manner as any such attorney-in-fact shall, in its sole discretion, deem proper with respect to the Units being sold hereby, (iii) deliver the Units being sold hereby and transfer ownership of such Units on the books of the Partnership that are maintained with respect to the Units and on the Partnership's books, maintained by the Partnership's General Partner, (iv) endorse on the Seller's behalf any and all payments received by Purchaser from the Partnership for any period on or after April 19, 2002 which are made payable to the Seller, in favor of Purchaser, (v) execute on the Seller's behalf, any applications for transfer and any distribution agreements required by the National Association of Securities Dealers, Inc.'s Notice to Members 96-14 to give effect to the transaction contemplated by this Agreement, (vi) receive all distributions and inspect and amend the books and records of the Partnership, including Seller's address and records, to direct all distributions to Purchaser as of the effective date of this Agreement, (vii) request an accounting of the affairs of the Partnership. Purchaser shall not be required to post bond of any nature in connection with this power of attorney, and (viii) in the event that the General Partner of the Partnership refuses to either transfer the Seller's Units to the Purchaser or to admit the Purchaser as a substitute limited partner, take legal action, as the Seller's true and lawful agent and attorney-in-fact, on behalf of the Seller, to enforce this Agreement of Sale. Seller does hereby direct and instruct the Partnership and the General Partner immediately upon their receipt of this Agreement of Sale , which includes a power of attorney appointing the Purchaser as the Seller's true and lawful agent and attorney-in-fact, (i) to amend the books and records of the Partnership to change the Seller's address of record for purposes of mailing distributions with respect to the Units being sold hereby to Equity Resource Lexington Fund, LP c/o Equity Resources Group, Inc., 44 Brattle Street Cambridge, MA 02138 and (ii) to forward all distributions and all other information relating therein to be received by Seller to Equity Resource Lexington Fund, LP to the address set forth in (i) above. Seller does hereby release and discharge the General Partner and their officers, shareholders, employees and agents from all actions, causes of actions, claims or demands Seller has, or may have, against the General Partner that result from the General Partner's reliance on this Agreement or any of the terms and conditions contained herein. Seller agrees to indemnify and hold the Purchaser and the Partnership harmless from and against, and to reimburse the Purchaser and/or the Partnership on demand, for any damage, loss, cost or expense (including attorneys' fees and costs of investigation incurred in defending against and/or settling such damage, loss, cost or expense) reasonably incurred by the Purchaser and/or the Partnership arising out of or in connection with any misrepresentation, breach of warranty, or failure to perform or violation of any agreement or covenant on the part of the Seller under this Agreement. All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the Seller and any obligations of the Seller shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. This agreement is irrevocable and may not be withdrawn following execution and delivery by the Seller. Upon request, the Seller will execute and deliver any additional documents deemed by the Purchaser or the Partnership to be necessary or desirable to complete the assignment, transfer and purchase of such Units. If the Seller is more than one person, then and in such event, the obligations of the Seller under this Agreement shall be joint and several and the representations, warranties and covenants herein contained shall be deemed to be made by and binding upon each such person and his heirs, executors, administrators, successors and assigns. The representations, warranties, covenants and agreements contained in this Agreement shall survive the transfer of the Units made by this Agreement and the payment of the consideration therefor. The Seller hereby certifies, under penalties of perjury, that (i) the tax identification number shown on this form is the Seller's correct Taxpayer Identification Number; and (ii) Seller is not subject to backup withholding either because Seller has not been notified by the Internal Revenue Service (the "IRS") that Seller is subject to backup withholding as a result of failure to report all interest or dividends, or the IRS has notified Seller that Seller is no longer subject to backup withholding. The Seller hereby also certifies, under penalties of perjury, that the Seller, if an individual, is not a nonresident alien for purposes of U.S. income taxation, and if not an individual, is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations). The Seller understands that this certification may be disclosed to the IRS by the Purchaser and that any false statements contained herein could be punished by fine, imprisonment, or both. The undersigned recognizes that, if proration is required pursuant to the terms of the Offer, the Purchaser will accept for payment from among those Units validly tendered on or prior to the Expiration Date and not properly withdrawn, the maximum number of Units permitted pursuant to the Offer on a pro rata basis. The undersigned understands that a tender of Units to the Purchaser will constitute a binding agreement between the undersigned and the Purchaser upon the terms and subject to the conditions of the Offer. The undersigned recognizes that under certain circumstances set forth in the Offer to Purchase, the Purchaser may not be required to accept for payment any of the Units tendered hereby. In such event, the undersigned understands that any Agreement for Units not accepted for payment will be destroyed by the Purchaser. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Seller waives any claim that any court in Massachusetts is an inconvenient forum, and waives any right to trial by jury. The undersigned Seller (including any joint owner(s)) owns and wishes to assign the number of Units set forth below. By its own or its Authorized Signatory's signature below, the Seller hereby assigns its entire right, title and interest in the Units set forth below to the Purchaser. By executing this Agreement, the Seller hereby acknowledges to the General Partner that the Seller desires to assign the Units referenced herein and hereby directs the General Partner to take all such actions as are necessary to accomplish such assignment, and appoints the General Partner the agent and attorney-in-fact of the Limited Partner, to execute, swear to, acknowledge and file any document or amend the books and records of the Partnership as necessary or appropriate for the assignment of the withdrawal of the Limited Partner. Each of the Parties hereto agrees to promptly execute and deliver any and all further agreements, documents or instruments necessary to effectuate this Agreement and the transaction referred to herein or reasonably requested by the other party to perfect or evidence its or his rights hereunder. Should either party hereto commence any proceeding to enforce the provisions of this Agreement, then and in such event, the prevailing party in any such proceeding or action shall be entitled to reimbursement of its or his costs, including attorney's fees, incurred in the investigation and prosecution of such proceeding or action. The parties agree that the proper venue for any such action shall be in the County of Middlesex, Commonwealth of Massachusetts, and the Seller hereby consents to the jurisdiction over the Seller by the state and Federal courts of or in the Commonwealth of Massachusetts, County of Middlesex in connection with any proceeding or action brought under this Assignment. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining provisions of this Agreement or affecting the validity or enforceability of any provisions of this Agreement in any other jurisdiction. SIGNATURE PAGE - ---------------------------------------------------------------------------------------------------------------- IN WITNESS WHEREOF, ERG and the Limited Partners have executed this Assignment as of April 19, 2002. (A) NUMBER OF UNITS OWNED: _______________NUMBER OF UNITS TO BE TRANSFERRED -ALL- (B)_____________________________________________________________________________________________ Limited Partner (s)/Assignor(s) (Full Registered Name of Limited Partner(s)/Assignor(s)) (C) Mailing Address : ____________________________________ (F) ____________________________________________ Street Social Security/Taxpayer No. of Limited Partner ____________________________________ _______________________________________________ City State Zip Security/Taxpayer No. of Joint Limited Partner (D)___________________________________________ Telephone Number (And Fax Number if Available) (E) __________________________________________ _______________________________________________ Signature of Limited Partner Signature of Joint Limited Partner or Custodian /Trustee Date ___________________________, 200______ Date _____________________________,200______ Limited Partner's Signature Guarantee Jnt Limited Partner's or Custodian/Trustee Signature Guarantee (G) Custodian(s) or Trustee(s) Information ______________________________________________ Name of Custodian(s) or Trustee(s) ______________________________________________ Address ______________________________________________ City, State, Zip ______________________________________________ ____________________________________ Account Number for EQUITY RESOURCE LEXINGTON FUND - -----------------------------------------------------------------------------------------------------------------
INSTRUCTIONS TO COMPLETE AGREEMENT OF SALE - -------------------------------------------------------------------------------- LINE HOW TO FILL IN (A) number of Units you wish to sell (B) print full registered name of Limited Partner (for example: "Mary Smith" or "Anne & Bob Smith, JTWROS"). If Units are held in partnerships, trusts, retirement accounts or other entities, please indicate (for example: "ABC Corp. Pension Plan, Jane Smith, Custodian" or "John Smith, Trustee UGMA FBO Sarah Smith Trust") (C) Limited Partner's current mailing address (D) telephone number (E) signature of person listed on Line B or authorized representative (F) social security or tax ID number of person/entity listed on Line B (G) name and address of custodian (for example, IRA custodian) signature guarantee: necessary only if selling more than 30 units. May be obtained by the officer of a national bank or trust company, or a member firm of a stock exchange. - -------------------------------------------------------------------------------- EQUITY RESOURCES GROUP, INC. 44 BRATTLE STREET CAMBRIDGE, MA 02138 EX-99.(D) 4 k20461exd.txt AGREEMENT BETWEEN PURCHASER AND GENERAL PARTNER 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 2 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; 3 (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. 4 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 ---------------------------------- Peter Braverman Executive Vice President EQUITY RESOURCES GROUP, INCORPORATED By ---------------------------------- Eggert Dagbjartsson Executive Vice President 5 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 6 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 7 -----END PRIVACY-ENHANCED MESSAGE-----