0000950134-01-506615.txt : 20011009
0000950134-01-506615.hdr.sgml : 20011009
ACCESSION NUMBER: 0000950134-01-506615
CONFORMED SUBMISSION TYPE: SC TO-T/A
PUBLIC DOCUMENT COUNT: 4
FILED AS OF DATE: 20010924
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: AIMCO PROPERTIES LP
CENTRAL INDEX KEY: 0000926660
STANDARD INDUSTRIAL CLASSIFICATION: OPERATORS OF APARTMENT BUILDINGS [6513]
IRS NUMBER: 841275621
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC TO-T/A
BUSINESS ADDRESS:
STREET 1: 2000 SOUTH COLORADO BLVD.
STREET 2: SUITE 2-1000
CITY: DENVER
STATE: CO
ZIP: 80222-8101
BUSINESS PHONE: 3037578101
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: MCCOMBS REALTY PARTNERS LTD
CENTRAL INDEX KEY: 0000759198
STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500]
IRS NUMBER: 330068732
STATE OF INCORPORATION: CA
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC TO-T/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-56577
FILM NUMBER: 1743791
BUSINESS ADDRESS:
STREET 1: 1873 SOUTH BELLAIRE STREET 17TH FLOOR
CITY: DENVER
STATE: CO
ZIP: 80222
BUSINESS PHONE: 3037578101
MAIL ADDRESS:
STREET 1: 1873 SOUTH BELLAIRE STREET 17TH FLOOR
CITY: DENVER
STATE: CO
ZIP: 80222
SC TO-T/A
1
d90336d1scto-ta.txt
AMENDMENT NO. 1 TO SCHEDULE TO
1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
McCombs Realty Partners
--------------------------------------------------------------------------------
(Name of Subject Company (Issuer)
AIMCO Properties, L.P. -- Offeror
--------------------------------------------------------------------------------
(Names of Filing Persons (Identifying Status as Offeror, Issuer or Other
Person))
Limited Partnership Units
--------------------------------------------------------------------------------
(Title of Class Securities)
None
--------------------------------------------------------------------------------
(CUSIP Number of Class Securities)
Patrick J. Foye
Executive Vice President
Apartment Investment And Management Company
Colorado Center, Tower Two
2000 South Colorado Boulevard, Suite 2-1000
Denver, Colorado 80222
(303) 757-8081
--------------------------------------------------------------------------------
(Name, address, and telephone numbers of
person authorized to receive notices and
communications on behalf of filing persons)
Copy To:
Gregory M. Chait
Katherine M. Koops
Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street, N.E., Sixteenth Floor
Atlanta, Georgia 30303
(404) 572-6600
Calculation of Filing Fee
--------------------------------------------------------------------------------
Transaction valuation Amount of filing fee
--------------------------------------------------------------------------------
$ 83,964.06 $ 17.00*
--------------------------------------------------------------------------------
* Previously paid.
[ ] Check the 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: $ Filing Party:
Form or Registration No.: Date Filed:
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-1 [ ] going-private transaction subject to Rule 13e-3
[ ] issuer tender offer subject to Rule 13e-4 [ ] amendment to Schedule 13D under Rule 13d-2
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
2
TENDER OFFER STATEMENT
This Amended Tender Offer Statement on Schedule TO/A relates to the tender
offer by AIMCO Properties, L.P., a Delaware limited partnership, to purchase all
of the outstanding units, or such lesser number of units as are properly
tendered, of limited partnership interest of McCombs Realty Partners, a
California limited partnership (the "Partnership"), at a price of $7.32 per
unit, subject to the conditions set forth in the Offer to Purchase dated
September 4, 2001, as supplemented September 24, 2001, and in the related Letter
of Transmittal and Acknowledgment and Agreement, which, as amended and
supplemented from time to time, together constitute the tender offer. Copies of
the Offer to Purchase Supplement, amended Letter of Transmittal and amended
Acknowledgment and Agreement are filed with this Schedule TO/A as Exhibits 1, 7,
8 and 9, respectively. In addition, because AIMCO Properties, L.P. is an
affiliate of the Partnership, this Schedule TO/A is intended to satisfy the
reporting requirements of Rule 13e-4(c)(1) of the Securities Exchange Act of
1934, as amended.
The information in Exhibits 1-3, 5(a)-(c), 7, 8 and 9, respectively, is
incorporated in this Schedule TO/A by reference in answer to items 1 through 11
of Schedule TO.
Neither AIMCO Properties, L.P. nor any of the people or entities listed
on Annex I to the Offer to Purchase has, during the last five years, been
misdemeanors), or was, during the last five years, a party to any judicial or
administrative proceeding (except for matters that were dismissed without
sanction or settlement) that resulted in a judgment, decree or final order
subject to, federal or state securities laws, or a finding of any violation of
federal or state securities laws.
================================================================================
Item 12. Exhibits.
* 1 Offer to Purchase, dated September 4, 2001.
* 2 Letter of Transmittal and related Instructions (included as
Annex II to the Offer to Purchase attached as Exhibit (a)(1)).
* 3 Acknowledgement and Agreement dated September 4, 2001.
* 4 Letter, dated September 4, 2001, from AIMCO Properties, L.P.
to the limited partners of the Partnership.
5(a) Credit Agreement (Secured Revolving Credit Facility), dated as
of August 16, 1999, among AIMCO Properties, L.P., Bank of
America, Bank Boston, N.A., and First Union National Bank.
(Exhibit 10.1 to AIMCO's Current Report on Form 8-K, dated
August 16, 1999 is incorporated herein by this reference.)
5(b) Amended and Restated Credit Agreement, dated as of March 15,
2000, among AIMCO Properties, L.P., Bank of America, Bank
Boston, N.A., and First Union National Bank. (Exhibit 10.20 to
AIMCO Properties, L.P.'s Annual Report on Form 10-K for the
year ended December 31, 1999 is incorporated herein by this
reference.)
5(c) First Amendment to $345,000,000 Amended and Restated Credit
Agreement, dated as of April 14, 2000, among AIMCO Properties,
L.P., Bank of America, as Administrative Agent, and U.S. Bank
National Association, as Lender. (Exhibit 10.4 to AIMCO's
Current Report on Form 10-Q for quarter ended March 31, 2000
is incorporated herein by this reference.)
6 Intentionally omitted.
** 7 Supplement, dated September 24, 2001, to Offer to Purchase,
dated September 4, 2001.
** 8 Amended Letter of Transmittal and related Instructions.
** 9 Amended Acknowledgement and Agreement, dated September 24, 2001.
--------
* Indicates items filed with the original Schedule to September 4, 2001.
** Indicates items filed herewith.
3
SIGNATURE
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.
Date: September 24, 2001
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, INC.
(General Partner)
By: /s/ Patrick J. Foye
----------------------------------
Executive Vice President
4
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
* 1 Offer to Purchase, dated September 4, 2001.
* 2 Letter of Transmittal and related Instructions (included as
Annex II to the Offer to Purchase attached as Exhibit (a)(1)).
* 3 Acknowledgement and Agreement dated September 4, 2001.
* 4 Letter, dated September 4, 2001, from AIMCO Properties, L.P.
to the limited partners of the Partnership.
5(a) Credit Agreement (Secured Revolving Credit Facility), dated as
of August 16, 1999, among AIMCO Properties, L.P., Bank of
America, Bank Boston, N.A., and First Union National Bank.
(Exhibit 10.1 to AIMCO's Current Report on Form 8-K, dated
August 16, 1999 is incorporated herein by this reference.)
5(b) Amended and Restated Credit Agreement, dated as of March 15,
2000, among AIMCO Properties, L.P., Bank of America, Bank
Boston, N.A., and First Union National Bank. (Exhibit 10.20 to
AIMCO Properties, L.P.'s Annual Report on Form 10-K for the
year ended December 31, 1999 is incorporated herein by this
reference.)
5(c) First Amendment to $345,000,000 Amended and Restated Credit
Agreement, dated as of April 14, 2000, among AIMCO Properties,
L.P., Bank of America, as Administrative Agent, and U.S. Bank
National Association, as Lender. (Exhibit 10.4 to AIMCO's
Current Report on Form 10-Q for quarter ended March 31, 2000
is incorporated herein by this reference.)
6 Intentionally omitted.
** 7 Supplement, dated September 24, 2001, to Offer to Purchase,
dated September 4, 2001.
** 8 Amended Letter of Transmittal and related Instructions.
** 9 Amended Acknowledgement and Agreement, dated September 24, 2001.
--------
* Indicates items filed with the original Schedule to September 4, 2001.
** Indicates items filed herewith.
EX-99.7
3
d90336d1ex99-7.txt
SUPPLEMENT, DATED SEPTEMBER 24, 2001
1
EXHIBIT 1
September 24, 2001
Supplement to
Offer to Purchase for Cash
AIMCO PROPERTIES, L.P.
is offering to purchase limited partnership units in
MCCOMBS REALTY PARTNERS
for
$7.32 PER UNIT IN CASH
--------------------------------------------------------------------------------
YOUR RIGHTS TO TENDER AND WITHDRAW YOUR UNITS WILL EXPIRE AT 5:00 P.M.,
NEW YORK TIME, ON OCTOBER 2, 2001
--------------------------------------------------------------------------------
On September 4, 2001, we offered to purchase the limited partnership units of
McCombs Realty Partners upon the terms and subject to the conditions of the
Offer to Purchase of that date. This notice supplements the information
contained in the original Offer to Purchase. We are using the same defined terms
in this Supplement that we used in the original Offer to Purchase.
PLEASE READ THE OFFER TO PURCHASE, TOGETHER WITH THIS SUPPLEMENT, FOR A
DESCRIPTION OF OUR OFFER. QUESTIONS AND REQUESTS FOR ADDITIONAL COPIES OF THE
OFFER TO PURCHASE, THE AMENDED ACKNOWLEDGMENT AND AGREEMENT, OR THE LETTER OF
TRANSMITTAL MAY BE DIRECTED TO THE INFORMATION AGENT AT (888) 349-2005.
Please take note of the following clarifications and supplements of the Offer to
Purchase:
TERMS OF THE OFFER; EXPIRATION DATE
This offer expires October 2, 2001, despite any contrary reference in the Offer
to Purchase. If you have not already done so, please remember that to accept our
offer, you must complete and return the enclosed amended Acknowledgment and
Agreement and related documents, as more fully described below, in time for us
to receive it on or before October 2, 2001.
WAIVER OF CONDITIONS
Our original Offer to Purchase provides that we will not be required to accept
for payment and pay for units if, among other things, the following shall occur
or may be reasonably expected to occur at or prior to the expiration of our
offer:
1. any general suspension of trading in, or limitation on prices
for, securities on any national securities exchange or the
over-the-counter market in the United States;
2. a decline in the closing price of a Share of AIMCO's Class A
Common Stock of more than 5.0% from the date of the initial
offer (September 4, 2001);
3. any extraordinary or material adverse change in the financial,
real estate or money markets or major equity security indices
in the United States such that there shall have occurred at
least a 25 basis point increase in LIBOR, or at least a 5.0%
decrease in the price of the 10-year Treasury Bond or the
30-year Treasury Bond, or at least a 5.0% decrease in the S&P
500 Index or the Morgan Stanley REIT Index, in each case from
the date of the initial offer (September 4, 2001); or
4. a commencement of a war, conflict, armed hostilities or other
national or international calamity directly or indirectly
involving the United States, not existing as of the date of
the initial offer (September 4, 2001).
The terrorist attacks in New York and Washington, DC on September 11, 2001 and
related events, including the subsequent closing of the markets in the United
States and the significant decline in market indices when
2
trading resumed on September 17, 2001, triggered the conditions set forth above.
Despite these events, we have decided to waive each of these conditions and are
hereby notifying you of our waiver so that we may proceed with our offer.
ADDITIONAL CONDITIONS
Please be aware, however, that our offer remains subject to each and every
condition in the Offer to Purchase that we have not specifically waived as set
forth above, and to each of the following new conditions:
Notwithstanding any other provisions of our offer, we will not be required to
accept for payment and pay for any units tendered pursuant to our offer, may
postpone the purchase of, and payment for, units tendered, and may terminate or
amend our offer if at any time on or after the date of this Supplement and at or
before the expiration of the offer (including any extension thereof), if any of
the following events shall occur or may be reasonably expected to occur:
1. any general suspension of trading in securities on any
national securities exchange or the over-the-counter market in
the United States;
2. the price of a Share of AIMCO's Class A Common Stock upon
closing on the day prior to the date of termination of this
offer will be at least 95.0% of the closing price on the day
prior to the date of this Supplement;
3. any extraordinary or material adverse change in the financial,
real estate or money markets or major equity security indices
in the United States such that upon the closing on the day
prior to the date of termination of this offer the LIBOR shall
not be 25 or more points higher, or the price of the 10-year
Treasury Bond or the 30-year Treasury Bond shall not be 5.0%
or more lower, or the S&P 500 Index or the Morgan Stanley REIT
Index shall not be 5.0% or more lower, in each case from the
closing on the day prior to the date of this Supplement;
4. a commencement of a war, conflict, armed hostilities or other
national or international calamity directly or indirectly
involving the United States (not existing on the date of this
Supplement), or
5. a material acceleration or worsening of a war, conflict or
armed hostilities directly or indirectly involving the United
States existing on the date hereof.
We will advise you promptly upon any triggering of a condition to our offer so
that you will know whether we will waive the condition or terminate the offer.
Our decision to waive or terminate will be made in all cases prior to the
expiration of our offer (including any extension thereof).
POSSIBILITY THAT WE MAY PURCHASE FEWER THAN ALL UNITS TENDERED
In various places in the Offer to Purchase we state that, upon the terms and
subject to the conditions set forth in the Offer to Purchase, we will accept
"any and all" units validly tendered in response to our offer. We wish to
emphasize, however, that if our purchase of "any and all" units validly tendered
and not properly withdrawn would result in the Partnership having fewer than 320
partners, we will purchase only 99% of the total number of units so tendered by
each limited partner. All references in the Offer to Purchase to us accepting
"any and all" units shall be deemed qualified by the previous sentence.
Because of the remote possibility that under the circumstances described above
we may purchase less than "any and all" units tendered, a subsequent offering
period is not available pursuant to Rule 14d-11 under the Exchange Act. As we
have indicated in our Offer to Purchase, however, we do not intend to provide a
subsequent offering period even if one were available to us.
STATEMENT REGARDING CONTROL PERSONS
Neither AIMCO Properties, L.P. nor any of the people or entities listed on Annex
I to the Offer to Purchase has, during the last five years, been convicted in a
criminal proceeding (excluding traffic violations or similar
3
misdemeanors), or was, during the last five years, a party to any judicial or
administrative proceeding (except for matters that were dismissed without
sanction or settlement) that resulted in a judgment, decree or final order
enjoining the person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of any violation of
federal or state securities laws.
DISTRIBUTIONS DURING OUR OFFER
If the Partnership distributes cash (or perhaps, although unlikely, assets) to
unit holders during our offer, we will reduce the offer price for each unit by
the per unit amounts distributed by the Partnership. If the price is so reduced,
we will extend our offer so that you will have at least ten business days to
consider the amended price, and withdraw your shares, at your option if you
properly notify us. When we accept the units in accordance with the terms of our
offer we will purchase each unit for the offer price less the amount of per unit
distributions during our offer.
Until the units are accepted in our offer, all unit holders will be holders of
record of the units tendered, and will be entitled to the distributions made
while they were record holders. All unit holders will receive the same amount
for any units purchased through our offer. As explained above, if there is a
record date for a distribution prior to our purchase of the units, the price we
will pay will be reduced. If there is a record date for a distribution and you
sell your units to a third party after the record date but before the units are
tendered to us, the person tendering will be paid the reduced price. You, as a
holder of record of the units on the record date for the distribution, will
receive the distribution despite the fact that you would no longer own the
units.
ADDITIONAL INFORMATION
When the Partnership units were originally distributed, the Partnership
contemplated holding the assets until all properties were sold (and the proceeds
thereof received in cash) or the occurrence of certain other events and, in any
event, not later than December 31, 2030. At the time of the original unit
distribution, the Partnership anticipated that it would sell its properties from
five to ten years after acquisition. The Partnership has now held the assets for
17 years.
You should be aware that The Partnership Spectrum, an independent, third-party
source, has reported that units have sold in the secondary market for as much as
$22 per unit during the year ended on December 31, 2000. For the reasons set
forth in the Offer to Purchase, we do not believe that secondary market sales
information is a reliable measure of value.
INCORPORATION BY REFERENCE
We hereby incorporate the following documents by reference to the indicated
filings by AIMCO Properties, L.P. with the Securities and Exchange Commission:
1. Quarterly Report of AIMCO Properties, L.P., for the period
ending June 30, 2001 filed on Form 10-Q on August 14, 2001.
2. Annual Report of AIMCO Properties, L.P. for the year ended
December 31, 2000 filed on Form 10-K405/A on May 1, 2001.
----------
If you decide to accept our offer, you should compete and sign the enclosed
amended Acknowledgment and Agreement as instructed in the Letter of Transmittal
attached as Annex I. The signed Acknowledgment and Agreement and any other
documents required by the Letter of Transmittal must be mailed or delivered to
River Oaks Partnership Services, Inc., which is acting as Information Agent in
connection with our offer, at one of its addresses set forth in the Letter of
Transmittal. If you already submitted an Acknowledgment and Agreement and do not
wish to withdraw your tender, then we will deem the terms of the amended form of
the Acknowledgment and Agreement enclosed in this mailing to supersede the terms
of the previously submitted Acknowledgment and Agreement. (The forms differ only
in that the form enclosed herewith does not request that you acknowledge that
you have "reviewed" the offering material.)
4
The Acknowledgment and Agreement and any other documents required by
the Letter of Transmittal should be sent or delivered by each unitholder or such
unitholder's broker, dealer, bank, trust company or other nominee to the
Information Agent at one of its addresses set forth below.
THE INFORMATION AGENT FOR THE OFFER IS:
RIVER OAKS PARTNERSHIP SERVICES, INC.
By Mail: By Overnight Courier: By Hand:
P.O. Box 2065 111 Commerce Road 111 Commerce Road
S. Hackensack, N.J. 07606-2065 Carlstadt, N.J. 07072 Carlstadt, N.J. 07072
Attn.: Reorganization Dept. Attn.: Reorganization Dept.
For information, please call:
TOLL FREE: (888) 349-2005
EX-99.8
4
d90336d1ex99-8.txt
AMENDED LETTER OF TRANSMITTAL/RELATED INSTRUCTIONS
1
EXHIBIT 2
AMENDED
LETTER OF TRANSMITTAL
TO TENDER UNITS OF LIMITED PARTNERSHIP INTEREST IN
MCCOMBS REALTY PARTNERS (THE "PARTNERSHIP")
PURSUANT TO AN OFFER TO PURCHASE
DATED SEPTEMBER 4, 2001 (THE "OFFER DATE") AND SUPPLEMENTED SEPTEMBER 24, 2001
BY
AIMCO PROPERTIES, L.P.
--------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 5:00 P.M., NEW YORK TIME,
ON OCTOBER 2, 2001, UNLESS EXTENDED (AS EXTENDED FROM TIME TO TIME, THE
"EXPIRATION DATE")
--------------------------------------------------------------------------------
TO PARTICIPATE IN THE OFFER, YOU MUST SEND A DULY COMPLETED AND EXECUTED COPY OF
THE ENCLOSED ACKNOWLEDGMENT AND AGREEMENT AND ANY OTHER DOCUMENTS REQUIRED BY
THIS LETTER OF TRANSMITTAL SO THAT SUCH DOCUMENTS ARE RECEIVED BY RIVER OAKS
PARTNERSHIP SERVICES, INC., THE INFORMATION AGENT, ON OR PRIOR TO THE EXPIRATION
DATE, UNLESS EXTENDED. THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT YOUR OPTION AND RISK, AND DELIVERY WILL BE
DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE INFORMATION AGENT. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED IS RECOMMENDED. IN ALL
CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY. DELIVERY OF
THE ACKNOWLEDGMENT AND AGREEMENT OR ANY OTHER REQUIRED DOCUMENTS TO AN ADDRESS
OTHER THAN AS SET FORTH BELOW DOES NOT CONSTITUTE VALID DELIVERY.
----------
IF YOU HAVE THE CERTIFICATE ORIGINALLY ISSUED TO REPRESENT YOUR
INTEREST IN THE PARTNERSHIP, PLEASE SEND IT TO THE INFORMATION
AGENT WITH THE ACKNOWLEDGMENT AND AGREEMENT.
----------
FOR INFORMATION OR ASSISTANCE IN CONNECTION WITH THE OFFER OR THE
COMPLETION OF THE ACKNOWLEDGMENT AND AGREEMENT, PLEASE CONTACT THE INFORMATION
AGENT AT (888) 349-2005 (TOLL FREE).
The Information Agent for the offer is:
RIVER OAKS PARTNERSHIP SERVICES, INC.
By Mail: By Overnight Courier: By Hand:
P.O. Box 2065 111 Commerce Road 111 Commerce Road
S. Hackensack, N.J. 07606-2065 Carlstadt, N.J. 07072 Carlstadt, N.J. 07072
Attn.: Reorganization Dept. Attn.: Reorganization Dept.
By Telephone:
TOLL FREE: (888) 349-2005
NOTE: PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. THE INSTRUCTIONS
ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THE
ACKNOWLEDGMENT AND AGREEMENT IS COMPLETED.
-1-
2
Ladies and Gentlemen:
The Signatory (the "Signatory") executing the Acknowledgment and Agreement
relating to the captioned offer (the "Acknowledgment and Agreement"), which is
enclosed, upon the terms and subject to the conditions set forth in the Offer,
hereby and thereby tenders to the Purchaser the units set forth in the box
entitled "Description of Units Tendered" on the Acknowledgment and Agreement,
including all interests represented by such units (collectively, the "Units"),
at the consideration indicated in the Offer as supplemented or amended.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed thereto in such Acknowledgment and Agreement.
Subject to and effective upon acceptance for consideration of any of the
Units tendered hereby and thereby in accordance with the terms of the Offer, the
Signatory hereby and thereby irrevocably sells, assigns, transfers, conveys and
delivers to, or upon the order of, the Purchaser all right, title and interest
in and to such Units tendered hereby and thereby that are accepted for payment
pursuant to the Offer, including, without limitation, (i) all of the Signatory's
interest in the capital of the Partnership, and the Signatory's interest in all
profits, losses and distributions of any kind to which the Signatory shall at
any time be entitled in respect of the Units, including, without limitation,
distributions in the ordinary course, distributions from sales of assets,
distributions upon liquidation, winding-up, or dissolution, payments in
settlement of existing or future litigation, and all other distributions and
payments from and after the Expiration Date, in respect of the Units tendered by
the Signatory and accepted for payment and thereby purchased by the Purchaser;
(ii) all other payments, if any, due or to become due to the Signatory in
respect of the Units, under or arising out of the agreement and certificate of
limited partnership of the Partnership (the "Partnership Agreement"), or any
agreement pursuant to which the Units were sold (the "Purchase Agreement"),
whether as contractual obligations, damages, insurance proceeds, condemnation
awards or otherwise; (iii) all of the Signatory's claims, rights, powers,
privileges, authority, options, security interests, liens and remedies, if any,
under or arising out of the Partnership Agreement or Purchase Agreement or the
Signatory's ownership of the Units, including, without limitation, any and all
voting rights, rights of first offer, first refusal or similar rights, and
rights to be substituted as a limited partner of the Partnership; and (iv) all
present and future claims, if any, of the Signatory against the Partnership, the
other partners and limited partners of the Partnership, or the general
partner(s) and any affiliates thereof, under or arising out of the Partnership
Agreement, the Purchase Agreement, the Signatory's status as a limited partner,
or the terms or conditions of the Offer, for monies loaned or advanced, for
services rendered, for the management of the Partnership or otherwise.
NOTWITHSTANDING ANY PROVISION IN THE PARTNERSHIP AGREEMENT OR ANY PURCHASE
AGREEMENT TO THE CONTRARY, THE SIGNATORY HEREBY AND THEREBY DIRECTS EACH GENERAL
PARTNER OF THE PARTNERSHIP TO MAKE ALL DISTRIBUTIONS AFTER THE PURCHASER ACCEPTS
THE TENDERED UNITS FOR PAYMENT TO THE PURCHASER OR ITS DESIGNEE. Subject to and
effective upon acceptance for payment of any Unit tendered hereby and thereby,
the Signatory hereby requests that the Purchaser be admitted to the Partnership
as a limited partner under the terms of the Partnership Agreement. Upon request,
the Signatory will execute and deliver additional documents deemed by the
Information Agent or the Purchaser to be necessary or desirable to complete the
assignment, transfer and purchase of Units tendered hereby and thereby and will
hold any distributions received from the Partnership after the Expiration Date
in trust for the benefit of the Purchaser and, if necessary, will promptly
forward to the Purchaser any such distributions immediately upon receipt. The
Purchaser reserves the right to transfer or assign, in whole or in part, from
time to time, to one or more of its affiliates, the right to purchase Units
tendered pursuant to the Offer, but any such transfer or assignment will not
relieve the Purchaser of its obligations under the Offer or prejudice the rights
of tendering limited partners to receive payment for Units validly tendered and
accepted for payment pursuant to the Offer.
By executing the enclosed Acknowledgment and Agreement, the Signatory
represents that either (i) the Signatory is not a plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or
an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of any such plan, or (ii) the tender and acceptance of Units pursuant
to the Offer will not result in a nonexempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code.
The Signatory understands that a tender of Units to the Purchaser will
constitute a binding agreement between the Signatory and the Purchaser upon the
terms and subject to the conditions of the Offer. The Signatory recognizes that
under certain circumstances set forth in the Offer, the Purchaser may not be
required to accept for consideration any or all of the Units tendered hereby. In
such event, the Signatory understands that any Acknowledgment and
-2-
3
Agreement for Units not accepted for payment may be returned to the Signatory or
destroyed by the Purchaser (or its agent). THIS TENDER IS IRREVOCABLE, EXCEPT
THAT UNITS TENDERED PURSUANT TO THE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO
THE EXPIRATION DATE OR ON OR AFTER OCTOBER 31, 2001 IF UNITS VALIDLY TENDERED
HAVE NOT BEEN ACCEPTED FOR PAYMENT.
THE SIGNATORY HAS BEEN ADVISED THAT THE PURCHASER IS AN AFFILIATE OF THE
GENERAL PARTNER OF THE PARTNERSHIP AND THE GENERAL PARTNER DOES NOT MAKE ANY
RECOMMENDATION AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING UNITS IN THE
OFFER. THE SIGNATORY HAS MADE HIS OR HER OWN DECISION TO TENDER UNITS.
The Signatory hereby and thereby represents and warrants for the benefit of
the Partnership and the Purchaser that the Signatory owns the Units tendered
hereby and thereby and has full power and authority and has taken all necessary
action to validly tender, sell, assign, transfer, convey and deliver the Units
tendered hereby and thereby and that when the same are accepted for payment by
the Purchaser, the Purchaser will acquire good, marketable and unencumbered
title thereto, free and clear of all 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 claims and
that the transfer and assignment contemplated herein and therein are in
compliance with all applicable laws and regulations.
All authority herein or therein conferred or agreed to be conferred shall
survive the death or incapacity of the Signatory, and any obligations of the
Signatory shall be binding upon the heirs, personal representatives, trustees in
bankruptcy, legal representatives, and successors and assigns of the Signatory.
The Signatory represents and warrants that, to the extent a certificate
evidencing the Units tendered hereby and thereby (the "original certificate") is
not delivered by the Signatory together with the Acknowledgment and Agreement,
(i) the Signatory represents and warrants to the Purchaser that the Signatory
has not sold, transferred, conveyed, assigned, pledged, deposited or otherwise
disposed of any portion of the Units, (ii) the Signatory has caused a diligent
search of its records to be taken and has been unable to locate the original
certificate, (iii) if the Signatory shall find or recover the original
certificate evidencing the Units, the Signatory will immediately and without
consideration surrender it to the Purchaser; and (iv) the Signatory shall at all
times indemnify, defend, and save harmless the Purchaser and the Partnership,
its successors, and its assigns from and against any and all claims, actions,
and suits, whether groundless or otherwise, and from and against any and all
liabilities, losses, damages, judgments, costs, charges, counsel fees, and other
expenses of every nature and character by reason of honoring or refusing to
honor the original certificate when presented by or on behalf of a holder in due
course of a holder appearing to or believed by the Partnership to be such, or by
issuance or delivery of a replacement certificate, or the making of any payment,
delivery, or credit in respect of the original certificate without surrender
thereof, or in respect of the replacement certificate.
-3-
4
INSTRUCTIONS FOR COMPLETING THE ACKNOWLEDGMENT AND AGREEMENT
1. REQUIREMENTS OF TENDER. To be effective, a duly completed and signed
Acknowledgment and Agreement (or facsimile thereof) and any other required
documents must be received by the Information Agent at one of its addresses
(or its facsimile number) set forth herein before 5:00 P.M., New York Time,
on the Expiration Date, unless extended. To ensure receipt of the
Acknowledgment and Agreement and any other required documents, it is
suggested that you use overnight courier delivery or, if the Acknowledgment
and Agreement and any other required documents are to be delivered by
United States mail, that you use certified or registered mail, return
receipt requested.
Our records indicate that you own the number of Units set forth in Box 2
entitled "Description of Units Tendered" on the Acknowledgment and
Agreement under the column entitled "Total Number of Units Owned (#)." If
you would like to tender only a portion of your Units, please so indicate
in the space provided in the box.
THE METHOD OF DELIVERY OF THE ACKNOWLEDGMENT AND AGREEMENT AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE TENDERING LIMITED
PARTNER AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
INFORMATION AGENT. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ASSURE TIMELY DELIVERY.
2. SIGNATURE REQUIREMENTS.
INDIVIDUAL AND JOINT OWNERS -- After carefully reading the Letter of
Transmittal and completing the Acknowledgment and Agreement, to tender
Units, limited partners must sign at the "X" in the Signature Box (Box 1)
of the Acknowledgment and Agreement. The signature(s) must correspond
exactly with the names printed (or corrected) on the front of the
Acknowledgment and Agreement. NO SIGNATURE GUARANTEE ON THE ACKNOWLEDGMENT
AND AGREEMENT IS REQUIRED IF THE ACKNOWLEDGMENT AND AGREEMENT IS SIGNED BY
THE LIMITED PARTNER (OR BENEFICIAL OWNER IN THE CASE OF AN IRA). If any
tendered Units are registered in the names of two or more joint owners, all
such owners must sign the Acknowledgment and Agreement.
IRAS/ELIGIBLE INSTITUTIONS -- For Units held in an IRA account, the
beneficial owner should sign in the Signature Box and no signature
guarantee is required. Similarly, no signature guarantee is required if
Units are tendered for the account of a bank, broker, dealer, credit union,
savings association, or other entity which is a member in good standing of
the Securities Agents Medallion Program or a bank, broker, dealer, credit
union, savings association, or other entity which is an "eligible guarantor
institution" as the term is defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934 (each an "Eligible Institution").
TRUSTEES, CORPORATIONS, PARTNERSHIP AND FIDUCIARIES -- Trustees, executors,
administrators, guardians, attorneys-in-fact, officers of a corporation,
authorized partners of a partnership or other persons acting in a fiduciary
or representative capacity must sign at the "X" in the Signature Box and
have their signatures guaranteed by an Eligible Institution by completing
the signature guarantee set forth in Box 3 in the Acknowledgment and
Agreement. If the Acknowledgment and Agreement is signed by trustees,
administrators, guardians, attorneys-in-fact, officers of a corporation,
authorized partners of a partnership or others acting in a fiduciary or
representative capacity, such persons should, in addition to having their
signatures guaranteed, indicate their title in the Signature Box and must
submit proper evidence satisfactory to the Purchaser of their authority to
so act (see Instruction 3 below).
3. DOCUMENTATION REQUIREMENTS. In addition to the information required to be
completed on the Acknowledgment and Agreement, additional documentation may
be required by the Purchaser under certain circumstances including, but not
limited to, those listed below. Questions on documentation should be
directed to the Information Agent at its telephone number set forth herein.
DECEASED OWNER (JOINT TENANT) -- Copy of death certificate.
DECEASED OWNER (OTHERS) -- Copy of death certificate (see also
Executor/Administrator/Guardian below).
-4-
5
EXECUTOR/ADMINISTRATOR/GUARDIAN -- Copy of court appointment documents
for executor or administrator; and (a)
a copy of applicable provisions of the
will (title page, executor(s)' powers,
asset distribution); or (b) estate
distribution documents.
ATTORNEY-IN-FACT -- Current power of attorney.
CORPORATION/PARTNERSHIP -- Corporate resolution(s) or other
evidence of authority to act.
Partnerships should furnish a copy of
the partnership agreement.
TRUST/PENSION PLANS -- Unless the trustee(s) are named in the
registration, a copy of the cover page
of the trust or pension plan, along
with a copy of the section(s) setting
forth names and powers of trustee(s)
and any amendments to such sections or
appointment of successor trustee(s).
4. TAX CERTIFICATIONS. The limited partner(s) tendering Units to the Purchaser
pursuant to the Offer must furnish the Purchaser with the limited
partner(s)' taxpayer identification number ("TIN") and certify as true,
under penalties of perjury, the representations in Box 6 and Box 7 of the
Acknowledgment and Agreement. By signing the Signature Box, the limited
partner(s) certifies that the TIN as printed (or corrected) on
Acknowledgment and Agreement in the box entitled "Description of Units
Tendered" and the representations made in Box 6 and Box 7 of the
Acknowledgment and Agreement are correct. See attached Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
guidance in determining the proper TIN to give the Purchaser.
U.S. PERSONS. A limited partner that is a U.S. citizen or a resident alien
individual, a domestic corporation, a domestic partnership, a domestic
trust or a domestic estate (collectively, "U.S. Persons"), as those terms
are defined in the Code, should follow the instructions below with respect
to certifying Box 6 and Box 7 of the Acknowledgment and Agreement.
BOX 6 - SUBSTITUTE FORM W-9.
Part (i), Taxpayer Identification Number -- Tendering limited partners must
certify to the Purchaser that the TIN as printed (or corrected) on the
Acknowledgment and Agreement in the box entitled "Description of Units
Tendered" is correct. If a correct TIN is not provided, penalties may be
imposed by the Internal Revenue Service (the "IRS"), in addition to the
limited partner being subject to backup withholding.
Part (ii), Backup Withholding -- In order to avoid 31% Federal income tax
backup withholding, the tendering limited partner must certify, under
penalty of perjury, that such limited partner is not subject to backup
withholding. Certain limited partners (including, among others, all
corporations and certain exempt non-profit organizations) are not subject
to backup withholding. Backup withholding is not an additional tax. If
withholding results in an overpayment of taxes, a refund may be obtained
from the IRS.
When determining the TIN to be furnished, please refer to the following as
a guide:
Individual accounts - should reflect owner's TIN.
Joint accounts - should reflect the TIN of the owner whose name appears
first.
Trust accounts - should reflect the TIN assigned to the trust.
IRA custodial accounts - should reflect the TIN of the custodian (not
necessary to provide).
Custodial accounts for the benefit of minors - should reflect the TIN of
the minor.
Corporations, partnership or other business entities - should reflect the
TIN assigned to that entity.
By signing the Signature Box, the limited partner(s) certifies that the TIN
as printed (or corrected) on the front of the Acknowledgment and Agreement
is correct.
-5-
6
BOX 7 - FIRPTA AFFIDAVIT -- Section 1445 of the Code requires that each
limited partner transferring interests in a partnership with real estate
assets meeting certain criteria certify under penalty of perjury the
representations made in Box 7, or be subject to withholding of tax equal to
10% of the consideration for interests purchased. Tax withheld under
Section 1445 of the Code is not an additional tax. If withholding results
in an overpayment of tax, a refund may be claimed from the IRS.
FOREIGN PERSONS -- In order for a tendering limited partner who is a
Foreign Person (i.e., not a U.S. Person, as defined above) to qualify as
exempt from 31% backup withholding, such foreign limited partner must
submit a statement, signed under penalties of perjury, attesting to that
individual's exempt status. Forms for such statements can be obtained from
the Information Agent.
5. VALIDITY OF ACKNOWLEDGMENT AND AGREEMENT. All questions as to the validity,
form, eligibility (including time of receipt) and acceptance of an
Acknowledgment and Agreement and other required documents will be
determined by the Purchaser and such determination will be final and
binding. The Purchaser's interpretation of the terms and conditions of the
Offer (including these Instructions for the Acknowledgment and Agreement)
will be final and binding. The Purchaser will have the right to waive any
irregularities or conditions as to the manner of tendering. Any
irregularities in connection with tenders, unless waived, must be cured
within such time as the Purchaser shall determine. The Acknowledgment and
Agreement will not be valid until any irregularities have been cured or
waived. Neither the Purchaser nor the Information Agent are under any duty
to give notification of defects in an Acknowledgment and Agreement and will
incur no liability for failure to give such notification.
6. ASSIGNEE STATUS. Assignees must provide documentation to the Information
Agent which demonstrates, to the satisfaction of the Purchaser, such
person's status as an assignee.
7. TRANSFER TAXES. The amount of any transfer taxes (whether imposed on the
registered holder or such person) payable on account of the transfer to
such person will be deducted from the consideration unless satisfactory
evidence of the payment of such taxes or exemption therefrom is submitted.
8. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If consideration is to be issued
in the name of a person other than the person signing the Signature Box of
the Acknowledgment and Agreement or if consideration is to be sent to
someone other than such signer or to an address other than that set forth
on the Acknowledgment and Agreement in the box entitled "Description of
Units Tendered," the appropriate boxes on the Acknowledgment and Agreement
must be completed.
-6-
7
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER - - Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payer.
------------------------------------------------------------------------------------------------------------------------
GIVE THE
TAXPAYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF --
------------------------------------------------------------------------------------------------------------------------
1. An individual account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined
Funds, the first individual on the account
3. Husband and wife (joint account) The actual owner of the account or, if joint funds,
Either person
4. Custodian account of a minor (Uniform Gift to The minor (2)
Minors Act)
5. Adult and minor (joint account) The adult or, if the minor is the only contributor,
the minor (1)
6. Account in the name of guardian or committee for a The ward, minor or incompetent person (3)
designated ward, minor or incompetent person (3)
7. a. The usual revocable savings trust account The grantor trustee (1)
(grantor is also trustee)
b. So-called trust account that is not a legal or The actual owner (1)
valid trust under state law
8. Sole proprietorship account The owner (4)
9. A valid trust, estate or pension trust The legal entity (Do not furnish the identifying number
of the personal representative or trustee unless the
legal entity itself is not designated in the account
title.) (5)
10. Corporate account The corporation
11. Religious, charitable, or educational The organization
organization account
12. Partnership account held in the name of the The partnership
business
13. Association, club, or other tax-exempt The organization
organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of Agriculture in the The public entity
name of a public entity (such as a State or local
government, school district, or prison) that
receives agricultural program payments
------------------------------------------------------------------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security
number.
(3) Circle the ward's or incompetent person's name and furnish such
person's social security number or employer identification number.
(4) Show your individual name. You may also enter your business name. You
may use your social security number or employer identification number.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number
will be considered to be that of the first name listed.
-7-
8
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9
OBTAINING A NUMBER -- If you do not have a taxpayer identification number
or you do not know your number, obtain Form SS-5, Application for a Social
Security Number Card (for individuals), or Form SS-4, Application for Employer
Identification Number (for businesses and all other entities), at the local
office of the Social Security Administration or the Internal Revenue Service and
apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments
include the following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), or an individual
retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States,
or any subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government,
or any agency or instrumentality thereof.
- An international organization or any agency or instrumentality
thereof.
- A registered dealer in securities or commodities registered in the
U.S. or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a) of the
Code.
- An exempt charitable remainder trust, or a non-exempt trust described
in section 4947 (a)(1).
- An entity registered at all times under the Investment Company Act of
1940.
- A foreign central bank of issue.
- A futures commission merchant registered with the Commodity Futures
Trading Commission.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- Payments to nonresident aliens subject to withholding under section
1441 of the Code.
- Payments to Partnerships not engaged in a trade or business in the
U.S. and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid
in money.
- Payments made by certain foreign organizations.
- Payments made to an appropriate nominee.
- Section 404(k) payments made by an ESOP.
Payments of interest not generally subject to backup withholding include
the following:
- Payments of interest on obligations issued by individuals. NOTE: You
may be subject to backup withholding if this interest is $600 or more
and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the
payer.
- Payments of tax exempt interest (including exempt interest dividends
under section 852 of the Code).
- Payments described in section 6049(b)(5) of the Code to nonresident
aliens.
- Payments on tax-free covenant bonds under section 1451 of the Code.
- Payments made by certain foreign organizations.
- Payments of mortgage interest to you.
- Payments made to an appropriate nominee.
Exempt payees described above should file a substitute Form W-9 to avoid
possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER. FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM. IF YOU ARE A NONRESIDENT ALIEN OR A
FOREIGN ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A COMPLETED
INTERNAL REVENUE FORM W-8 (CERTIFICATE OF FOREIGN STATUS).
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(A),
6045, and 6050A of the Code.
PRIVACY ACT NOTICE - - Section 6109 of the Code requires most recipients of
dividend, interest, or other payments to give correct taxpayer identification
numbers to payers who must report the payments to the IRS. The IRS uses the
numbers for identification purposes. Payers must be given the numbers whether or
not recipients are required to file a tax return. Payers must generally withhold
31% of taxable interest, dividend, and certain other payments to a payee who
does not furnish a correct taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER - - If
you fail to furnish your correct taxpayer identification number to a payer, you
are subject to a penalty of $50 for each such failure unless your failure is due
to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING - - If
you make a false statement with no reasonable basis that results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION - - Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
-8-
9
The Acknowledgment and Agreement and any other documents required by
the Letter of Transmittal should be sent or delivered by each limited partner or
such limited partner's broker, dealer, bank, trust company or other nominee to
the Information Agent at one of its addresses set forth below.
THE INFORMATION AGENT FOR THE OFFER IS:
RIVER OAKS PARTNERSHIP SERVICES, INC.
By Mail: By Overnight Courier: By Hand:
P.O. Box 2065 111 Commerce Road 111 Commerce Road
S. Hackensack, N.J. 07606-2065 Carlstadt, N.J. 07072 Carlstadt, N.J. 07072
Attn.: Reorganization Dept. Attn.: Reorganization Dept.
For information, please call:
TOLL FREE: (888) 349-2005
-9-
EX-99.9
5
d90336d1ex99-9.txt
AMENDED ACKNOWLEDGEMENT AND AGREEMENT
1
EXHIBIT 3
AMENDED
ACKNOWLEDGMENT AND AGREEMENT
TO TENDER ASSIGNEE UNITS OF LIMITED PARTNERSHIP INTEREST IN
MCCOMBS REALTY PARTNERS (THE "PARTNERSHIP")
PURSUANT TO AN OFFER TO PURCHASE
DATED AUGUST 30, 2001 (THE "OFFER DATE") AS SUPPLEMENTED SEPTEMBER 24, 2001 BY
AIMCO PROPERTIES, L.P.
--------------------------------------------------------------------------------
FOR INFORMATION OR ASSISTANCE IN CONNECTION WITH THE OFFER OR THE COMPLETION
OF THIS ACKNOWLEDGMENT AND AGREEMENT, PLEASE CONTACT THE INFORMATION AGENT AT
(888) 349-2005 (TOLL FREE).
--------------------------------------------------------------------------------
The undersigned hereby agrees as set forth under
"ACKNOWLEDGMENT AND AGREEMENT" below.
================================================================================
1 SIGNATURE BOX
(SEE INSTRUCTION 2 IN THE LETTER OF TRANSMITTAL)
--------------------------------------------------------------------------------
Please sign exactly as your name is printed in Box 2 below. For joint
owners, each joint owner must sign. (See Instruction 2 in the Letter of
Transmittal).
X
--------------------------------------------------------------------------
(Signature of Owner)
X
--------------------------------------------------------------------------
(Signature of Joint Owner)
Name and Capacity (if other than individuals):
-----------------------------
Title:
---------------------------------------------------------------------
Address:
-------------------------------------------------------------------
---------------------------------------------------------------------------
(City) (State) (Zip)
Area Code and Telephone No. (Day):
-----------------------------------------
(Evening):
-------------------------------------
================================================================================
-------------------------------------------------------------------------------------------------------
DESCRIPTION OF UNITS TENDERED
2
-------------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s) (Please indicate
changes or corrections to the name, address and tax
identification number printed below.)
-------------------------------------------------------------------------------------------------------
1. Total 2. Number of
Number of Units Units Tendered
Owned for Cash
(#) (#)
--------------- --------------
-------------------------------------------------------------------------------------------------------
WHEN COMPLETING THIS ACKNOWLEDGMENT AND AGREEMENT, PLEASE REFER TO THE
INSTRUCTIONS SET FORTH ON THE LAST PAGE OF THIS ACKNOWLEDGMENT AND AGREEMENT.
2
================================================================================
SIGNATURE GUARANTEE (IF REQUIRED)
3 (SEE INSTRUCTION 2 IN THE LETTER OF TRANSMITTAL)
--------------------------------------------------------------------------------
YOU DO NOT NEED TO HAVE YOUR SIGNATURE GUARANTEED UNLESS YOU ARE A TRUSTEE,
EXECUTOR, ADMINISTRATOR, GUARDIAN, ATTORNEY-IN-FACT, OFFICER OF A CORPORATION OR
OTHER PERSON ACTING IN A FIDUCIARY OR REPRESENTATIVE CAPACITY.
Name and Address of Eligible Institution:
---------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Authorized Signature: X
---------------------------------------------------------
Name:
---------------------------------------------------------------------------
Title: Date:
---------------------------------- ------------------------------
================================================================================
================================================================================
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 2, 7 AND 8 IN THE LETTER
4 OF TRANSMITTAL)
--------------------------------------------------------------------------------
To be completed ONLY if the consideration for the Units accepted for payment is
to be issued in the name of someone other than the Signatory.
Issue consideration to:
Name
----------------------------------------------------------------------------
(Please Type or Print)
Address
-------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
--------------------------------------------------------------------------------
(TAX IDENTIFICATION OR SOCIAL SECURITY NO.)
(See Substitute Form W-9 below)
================================================================================
================================================================================
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 2, 7 AND 8 IN THE LETTER
5 OF TRANSMITTAL)
--------------------------------------------------------------------------------
To be completed ONLY if the consideration for the Units accepted for payment is
to be sent to someone other than the Signatory or to the Signatory at an address
other than that shown in Box 2 above.
Mail consideration to:
Name
----------------------------------------------------------------------------
(Please Type or Print)
Address
-------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Include Zip Code)
================================================================================
================================================================================
SUBSTITUTE FORM W-9
6 (SEE INSTRUCTION 4 - BOX 6 OF THE LETTER OF TRANSMITTAL)
--------------------------------------------------------------------------------
Under penalties of perjury, the Signatory certifies that: (1) the number
shown on this form is the unitholder's correct Taxpayer Identification No.
("TIN") or the unitholder has applied for a TIN; and (2) the unitholder is not
subject to backup withholding either because the unitholder : (a) is exempt for
backup withholding; (b) has not been notified by the Internal Revenue Service
("IRS") that the unitholder is subject to back-up withholding as a result of
failure to report all interest or dividends; or (c) has been notified by the IRS
that such unitholder is no longer subject to backup withholding.
Certification Instructions - You must cross out item (2) in the paragraph
above if you have been notified by the IRS that you are subject to back-up
withholding because of underreporting interest or dividends on your tax return.
However, if after being notified by the IRS that you were subject to back-up
withholding you received another notification from the IRS that you are no
longer subject to back-up withholding, do not cross out item (2).
Please check this box [ ] if the unitholder has applied for a TIN, a TIN
has not been issued to the unitholder, and either (a) the unitholder has mailed
or delivered an application to receive a TIN to the appropriate IRS Center or
Social Security Administration Office, or (b) the unitholder intends to mail or
deliver an application in the near future (it being understood that if the
unitholder does not provide a TIN to the Purchaser, 31% of all reportable
payments made to the unitholder will be withheld).
================================================================================
================================================================================
FIRPTA AFFIDAVIT
7 (SEE INSTRUCTION 4 - BOX 7 OF THE LETTER OF TRANSMITTAL)
--------------------------------------------------------------------------------
Section 1445(e)(5) of the Internal Revenue Code and Treas.
Reg.1.1445-11T(d) provide that a transferee of the U.S. real property interest
must withhold tax equal to 10% of the amount realized if the transferor is a
foreign person. To inform the Purchaser that withholding of tax is not required
upon this disposition of a U.S. real property interest, the undersigned hereby
certifies the following under penalties of perjury: (i) the unitholder, if an
individual, is a U.S. citizen or a resident alien for purposes of U.S. income
taxation, and if other than an individual, is not a foreign corporation, foreign
partnership, foreign estate or foreign trust (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations); (ii) the unitholder's U.S.
social security number (for individuals) or employer identification number (for
non-individuals) is correct as furnished in the blank provided for that purpose
on the front of this Acknowledgment and Agreement; and (iii) the unitholder's
home address (for individuals), or office address (for non-individuals), is
correctly printed (or corrected) on the front of this Acknowledgment and
Agreement. The person signing this Acknowledgment and Agreement 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.
[ ] Please check this box if the withholding of tax is required because the
unitholder does not satisfy all of the above conditions.
================================================================================
-2-
3
ACKNOWLEDGMENT AND AGREEMENT. The signatory hereto (the "Signatory") hereby
acknowledges that he or she has received (i) the Purchaser's Offer to Purchase,
dated the Offer Date (as supplemented or amended from time to time, the "Offer
to Purchase") relating to the offer by AIMCO Properties, L.P. (the "Purchaser")
to purchase assignee units of limited partnership interest in the Partnership,
(ii) the Letter of Transmittal attached as Annex II thereto (the "Letter of
Transmittal"), (iii) this Acknowledgment and Agreement, and (iv) the
Instructions hereto in the Letter of Transmittal, as each may be supplemented or
amended from time to time, and whose terms and conditions are incorporated by
reference herein (collectively, the "Offer"). Capitalized terms used herein but
not otherwise defined herein shall have the meanings ascribed thereto in the
Offer to Purchase. The Signatory hereby understands and agrees that the Letter
of Transmittal is hereby incorporated by reference herein and is hereby made a
part hereof.
The Signatory hereby makes the representations, warranties, and covenants,
and agrees to the terms and conditions, in each case set forth in the Letter of
Transmittal, and hereby tenders to the Purchaser the assignee units of limited
partnership interest set forth in the box entitled "Description of Units
Tendered" herein, including all interests represented by such units
(collectively, the "Units"), as described in the Offer to Purchase and certifies
under penalties of perjury that the statements in Box 6 and Box 7 herein are
true.
The Signatory hereby irrevocably constitutes and appoints the Purchaser and
any designees of the Purchaser as the true and lawful agent and attorney-in-fact
of the Signatory with respect to such Units, with full power of substitution
(such power of attorney being deemed to be an irrevocable power coupled with an
interest), to vote or act in such manner as any such attorney and proxy or
substitute shall, in its sole discretion, deem proper with respect to such Units
on any matter submitted for the consent or approval of holders of such Units, to
do all such acts and things necessary or expedient to deliver such Units and
transfer ownership of such Units on the partnership books maintained by the
managing general partner of the Partnership, together with all accompanying
evidence of transfer and authenticity to, or upon the order of, the Purchaser,
to sign any and all documents necessary to authorize the transfer of the Units
to the Purchaser including, without limitation, the "Transferor's (Seller's)
Application for Transfer" created by the National Association of Securities
Dealers, Inc., if required, and upon receipt by the Information Agent (as the
Signatory 's agent) of consideration pursuant to the terms of the Offer, to
become a holder of units, to receive any and all distributions made by the
Partnership to which the Purchaser is entitled pursuant to the terms of the
Offer (regardless of the record date for any such distribution), and to receive
all benefits and otherwise exercise all rights of beneficial ownership of such
Units, all in accordance with the terms of the Offer. This appointment shall be
effective upon the purchase of the Units by the Purchaser as provided in the
Offer and shall be irrevocable for a period of ten years following the
termination of the Offer. Upon the purchase of Units pursuant to the Offer, all
prior proxies and consents given by the Signatory with respect to such Units
will be revoked and no subsequent proxies or consents may be given (and if given
will not be deemed effective).
In addition to and without limiting the generality of the foregoing, the
Signatory hereby irrevocably (i) requests and authorizes (subject to and
effective upon acceptance for consideration of any Unit tendered hereby) the
Partnership and its general partners to take any and all actions as may be
required to effect the transfer of the Units to the Purchaser (or its designee)
and to admit the Purchaser as a holder of units in the Partnership under the
terms of the certificate and agreement of partnership of the Partnership; (ii)
empowers the Purchaser and its agent to execute and deliver to the managing
general partner a change of address form instructing the managing general
partner to send any and all future distributions to the address specified in the
form, and to endorse any check payable to or upon the order of such unitholder
representing a distribution to which the Purchaser is entitled pursuant to the
terms of the Offer, in each case in the name and on behalf of the tendering
unitholder; (iii) agrees not to exercise any rights pertaining to the Units
without the prior consent of the Purchaser; and (iv) requests and consents to
the transfer of the Units, to be effective on the books and records of the
Partnership as of the effective date set forth in the Offer.
In addition, the Signatory irrevocably constitutes and appoints the
Purchaser and any designees of the Purchaser as the true and lawful agent and
attorney-in-fact of the Signatory with respect to such Units, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to withdraw any or all of such Units that have been
previously tendered in response to any tender or exchange offer provided that
the consideration being offered by the Purchaser is equal to or higher than the
consideration being offered in the other tender or exchange offer. This
appointment is effective immediately and shall continue to be effective unless
and until such Units are withdrawn from the offer by the Signatory prior to the
expiration date (as defined in the Offer to Purchase).
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the Signatory, and any obligations of the Signatory shall
be binding upon the heirs, personal representatives, trustees in bankruptcy,
legal representatives, and successors and assigns of the Signatory.
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INSTRUCTIONS
(THESE INSTRUCTIONS APPLY IF YOU DESIRE TO PARTICIPATE IN THE OFFER)
For complete instructions on completing this Acknowledgement and Agreement,
please refer to the Letter of Transmittal (Annex II to the Offer to Purchase).
IMPORTANT:
1. ALL registered owners must sign at the X in Box 1.
2. When signing as a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation, or in another fiduciary or
representative capacity, please indicate your title in Box 1, submit proper
evidence of your authority to so act, and provide a signature guarantee in
Box 3.
3. Please confirm that your name, address and tax identification number are
correct in Box 2. If there is no label in Box 2, you must fill in this
information.
4. Box 4 is to be used only if consideration is to be paid to someone other
than the signer.
5. Box 5 is to be used only if consideration is to be mailed to someone other
than the signer or the signer at a different address from that in Box 2.
6. Please review Box 6 and Box 7. Crossing out item 2 in Box 6 and/or checking
the box in Box 7 may result in the withholding of a substantial portion of
the consideration payable to you.
7. Please return all pages of this Acknowledgment and Agreement (along with
all other required documentation) to the Information Agent at one of its
addresses below. A postage-paid envelope is enclosed for your convenience.
FOR INFORMATION OR ASSISTANCE IN CONNECTION WITH THE OFFER OR THE COMPLETION OF
THIS ACKNOWLEDGMENT AND AGREEMENT, PLEASE CONTACT THE INFORMATION AGENT AT (888)
349-2005 (TOLL FREE).
The Information Agent for the offer is:
RIVER OAKS PARTNERSHIP SERVICES, INC.
By Mail: By Overnight Courier: By Hand:
P.O. Box 2065 111 Commerce Road 111 Commerce Road
S. Hackensack, N.J. 07606-2065 Carlstadt, N.J. 07072 Carlstadt, N.J. 07072
Attn.: Reorganization Dept. Attn.: Reorganization Dept.
By Telephone:
TOLL FREE (888)349-2005
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