EXHIBIT (a)(2)
AGREEMENT of ASSIGNMENT and TRANSFER
For Units of Investor Limited Partnership Interests in
▇▇▇▇▇ Realty Fund, Ltd. - III
Please make any corrections to name/mailing address in space above.
I hereby tender to Madison Liquidity Investors 104, LLC, a Delaware
limited liability company ("Madison"), the number of Units of
Investor Limited Partnership Interests set forth above (including
any and all other Units or other securities issued or issuable in
respect of such Unit on or after the date hereof) (collectively,
the "Units") in ▇▇▇▇▇ Realty Fund, Ltd. - III, a Massachusetts
limited partnership (the "Partnership"), for $425.00 per Unit in
cash, without any interest thereon, (reduced by the amount of (i)
any transfer fee payable to the Partnership in respect of the Units
tendered hereby and (ii) any cash distributions made to me by the
Partnership on or after April 21, 1999) in accordance with the
terms and subject to the conditions of Madison's Offer to Purchase
attached as Exhibit (a)(1) to Schedule 14D-1 dated April 21, 1999
(the "Offer to Purchase") and this Agreement of Assignment and
Transfer (which, together with the Offer to Purchase and any
supplements or amendments, constitutes the "Offer"). I acknowledge
that I have received the Offer to Purchase. The Offer, proration
period (described further in Section 4 of the Offer to Purchase)
and the withdrawal rights (described further in Section 5 of the
Offer to Purchase) will remain open until 5:00 p.m. Eastern
Standard Time on May 24, 1999, subject to extension at the
discretion of Madison. It is understood that payment for the Units
tendered hereby will be made by check mailed to me at the address
above promptly after the date of the Partnership's confirmation
that the transfer of the Units to Madison is effective, subject to
Section 4 (Proration) and Section 5 (Withdrawal Rights) of the
Offer to Purchase. The Offer is subject to Section 15 (Conditions
of the Offer) of the Offer to Purchase.
Subject to, and effective upon, acceptance of this Agreement of
Assignment and Transfer and payment for the Units tendered hereby
in accordance with the terms and subject to the conditions of the
Offer, I hereby sell, assign, transfer, convey and deliver (the
"Transfer") to Madison, all of my right, title and interest in and
to the Units tendered hereby and accepted for payment pursuant to
the Offer and any and all non-cash distributions, other Units or
other securities issued or issuable in respect thereof on or after
April 21, 1999, including, without limitation, to the extent that
they exist, all rights in, and claims to, any Partnership profits
and losses, cash distributions, voting rights and other benefits of
any nature whatsoever and whenever distributable or allocable to
the Units under the Partnership's limited partnership agreement
(the "Partnership Agreement"), (i) unconditionally to the extent
that the rights appurtenant to the Units may be transferred and
conveyed without the consent of the general partner of the
Partnership (the "General Partner"), and (ii) in the event that
Madison elects to become a substituted limited partner of the
Partnership, subject to the consent of the General Partner to the
extent such consent may be required in order for Madison to become
a substituted limited partner of the Partnership.
It is my intention that Madison and its designees, if any of them
so elects, succeed to my interest as a Substitute Limited Partner,
as defined in the Partnership Agreement, in my place with respect
to the transferred Units. It is my understanding, and I hereby
acknowledge and agree, that Madison and its designees shall be
entitled to receive all distributions of cash or other property
from the Partnership attributable to the transferred Units that are
made on or after April 21, 1999, including, without limitation, all
distributions of distributable cash flow and net cash proceeds,
without regard to whether the cash or other property that is
included in any such distribution was received by the Partnership
before or after the Transfer and without regard to whether the
applicable sale, financing, refinancing or other disposition took
place before or after the Transfer. It is my further
understanding, and I further acknowledge and agree, that the
taxable income and taxable loss attributable to the transferred
Units with respect to the taxable period in which the Transfer
occurs shall be divided among and allocated between me and Madison
and its designees as provided in the Partnership Agreement, or in
accordance with such other lawful allocation methodology as may be
agreed upon by the Partnership and Madison. I represent and
warrant that I have the full right, power and authority to transfer
the subject Units and to execute this Agreement of Assignment and
Transfer and all other documents executed in connection herewith
without the joinder of any other person or party, and if I am
executing this Agreement of Assignment and Transfer or any other
document in connection herewith on behalf of a business or other
entity other than an individual person, I have the right, power and
authority to execute such documents on behalf of such entity
without the joinder of any other person or party.
Subject to Section 5 (Withdrawal Rights) of the Offer to Purchase,
I hereby irrevocably constitute and appoint Madison and its
designees as my true and lawful agent and attorneys-in-fact and
proxies with respect to the Units (and with respect to any and all
other Units or other securities issued or issuable in respect of
such Unit on or after the date hereof), each with full power of
substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to (i) exercise all
my voting and other rights as any such attorney-in-fact in their
sole discretion may deem proper at any meeting of Unitholders or
any adjournment or postponement thereof, by written consent in lieu
of any such meeting or otherwise; (ii) act in manner as any such
attorney-in-fact shall, in its sole discretion, deem proper with
respect to the Units; (iii) deliver the Units and transfer
ownership of the Units on the Partnership's books maintained by the
General Partner; (iv) endorse, on my behalf, any and all payments
received by Madison from the Partnership that are made on or after
April 21, 1999, which are made payable to me, in favor of Madison
or any other payee Madison otherwise designates; (v) execute a Loss
and Indemnity Agreement relating to the Units on my behalf if I
fail to include my original certificate(s) (if any) representing
the Units with this Agreement; (vi) execute on my behalf any
applications for transfer and any distribution allocation
agreements required by National Association of Securities Dealers
Notice to Members 96-14 to give effect to the transactions
contemplated by this Agreement; (vii) receive all benefits and cash
distributions and otherwise exercise all rights of beneficial
ownership of the Units; and (viii) direct the General Partner to
immediately change the address of record of the registered owner of
the transferred Units to that of Madison, as my attorney-in-fact.
Madison and its designees are further authorized, as part of their
powers as my attorneys-in-fact with respect to the Units, to
commence any litigation that Madison and its designees, in their
sole discretion, deem necessary to enforce any exercise of
Madison's or such designees powers as my attorneys-in-fact as set
forth herein. Madison or its designees shall not be required to
post bond of any nature in connection with this power of attorney.
I hereby direct the Partnership and the General Partner to remit to
Madison and its designees any distributions made by the Partnership
with respect to the Units on or after April 21, 1999. To the
extent that any distributions are made by the Partnership with
respect to the Units on or after April 21, 1999, which are received
by me, I agree to promptly pay over such distributions to Madison.
I further agree to pay any costs incurred by Madison and its
designees in connection with the enforcement of any of my
obligations hereunder or my breach of any of the agreements,
representations and warranties made by me herein. All prior powers
of attorney and proxies granted by me with respect to the Units
(and such other Units or securities) are, without further action,
hereby revoked and no subsequent powers of attorney or proxies may
be given and no subsequent consent may be executed (and if given or
executed, will not be deemed effective.) Madison and its
designees agree to exercise the proxy and power of attorney granted
hereby in a manner consistent with the terms of the Agreement,
dated May 22, 1997, between The ▇▇▇▇▇ Corporation (an affiliate of
the general partner of the Partnership) and Gramercy Park
Investments, L.P. (an affiliate of Madison). See Section 14
"Background of the Offer" in the Offer to Purchase.
I hereby direct the General Partner to immediately change my
address of record as the registered owner of the Units to be
transferred herein to that of Madison or its designees, conditional
solely upon Madison's execution of this Agreement.
If legal title to the Units is held through an ▇▇▇ or ▇▇▇▇▇ or
similar account, I understand that this Agreement must be signed by
the custodian of such ▇▇▇ or ▇▇▇▇▇ account. Furthermore, I hereby
authorize and direct the custodian of such ▇▇▇ or ▇▇▇▇▇ to confirm
this Agreement.
I hereby represent and warrant to Madison that I (i) have received
and reviewed the Offer to Purchase and (ii) own the Units and have
full power and authority to validly sell, assign, transfer, convey
and deliver to Madison and its designees the Units, and that
effective when the Units are accepted for payment by Madison and
its designees, I hereby convey to Madison and its designees, and
Madison and its designees will hereby 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
the Units will not be subject to any adverse claim. I further
represent and warrant that I am a "United States person," as
defined in Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended.
I hereby release and discharge the General Partner and its
officers, shareholders, directors, employees and agents from all
actions, causes of action, claims or demands I have, or may have,
against the General Partner that result from the General Partner's
reliance on this Agreement of Assignment and Transfer or any of the
terms and conditions contained herein. I hereby indemnify and hold
harmless the Partnership from and against all claims, demands,
damages, losses, obligations and responsibilities arising, directly
or indirectly, out of a breach of any one or more representations
and warranties set forth herein.
All authority herein conferred or agreed to be conferred shall
survive my death or incapacity and all of my obligations shall be
binding upon the heirs, personal representatives, successors and
assigns of the undersigned. In addition, I hereby agree not to
offer, sell or accept any offer to purchase any or all of the Units
to or from any third party while the Offer remains open. Upon
request, I will execute and deliver any additional documents deemed
by Madison and its designees to be necessary or desirable to
complete the assignment, transfer and purchase of the Units.
I hereby certify, under penalties of perjury, that the statements
in Box A, Box C, Box D and, if applicable, Box E below are true and
correct.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware. I waive any claim that any
State or Federal court located in the State of Delaware is an
inconvenient forum, and waive any right to trial by jury.
PLEASE COMPLETE ALL SHADED AREAS
SIGN HERE TO TENDER YOUR UNITS
BOX A
(See Instructions to Complete Agreement of Assignment and Transfer - Box A)
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All
Date:____________________, 1999 ___________________________________________
(If you desire to sell less than all of your
Units, strike "All" and indicate the number
of Units to be sold)
_______________________ ______________________ ______________________
Your Social Security or Your Telephone Number Signature of Co-Seller
Taxpayer Identification and Medallion Signature
Number Guarantee (If
applicable)
________________________________________________________________________
Your Signature and Medallion Signature Guarantee
_________________________________________________________________________
Custodian Signature and Medallion Signature Guarantee (Required if Units
held in ▇▇▇/▇▇▇▇▇)
Please note: A Medallion Signature Guarantee is similar to a notary, but
is provided by your bank or brokerage house where you have an account.
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BOX B
MEDALLION SIGNATURE GUARANTEE
(Required for all Sellers)
(See Instructions to Complete Agreement of Assignment and Transfer - Box B)
Name and Address of Bank or Brokerage House:___________________________________
Authorized Signature of Bank or
Brokerage House Representative:_________________________ Title:________________
Name:______________________________ Date:_________ , 1999
Please note: A Medallion Signature Guarantee is similar to a notary, but
is provided by your bank or brokerage house where you have an account.
_______________________________________________________________________________
BOX C
SUBSTITUTE FORM W-9
(See Instructions to Complete Agreement of Assignment and Transfer - Box C)
The person signing this Agreement of Assignment and Transfer hereby
certifies the following to the Purchaser under penalties of perjury:
(i) The TIN set forth in the signature box in Box A of this
Agreement of Assignment and Transfer is the correct TIN of the Unitholder,
or if this box [ ] is checked, the Unitholder has applied for a TIN. 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 within sixty (60) days,
31% of all reportable payments made to the Unitholder thereafter will be
withheld until a TIN is provided to the Purchaser); and
(ii) Unless this box [ ] is checked, the Unitholder is not
subject to backup withholding either because the Unitholder: (a) is exempt
from backup withholding, (b) has not been notified by the IRS that the
Unitholder is subject to backup withholding as a result of a 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.
Note: Place an "X" in the box in (ii) if you are unable to certify
that the Unitholder is not subject to backup withholding.
________________________________________________________________________________
BOX D
FIRPTA AFFIDAVIT
(See Instructions to Complete Agreement of Assignment and Transfer - Box D)
Under Section 1445(e)(5) of the Internal Revenue Code and Treas. Reg.
1.1445-11T(d), a transferee must withhold tax equal to 10% of the amount
realized with respect to certain transfers of an interest in a partnership
if 50% or more of the value of its gross assets consists of U.S. real
property interests and 90% or more of the value of its gross assets
consists of U.S. real property interests plus cash equivalents, and the
holder of the partnership interest is a foreign person. To inform the
Purchaser that no withholding is required with respect to the Unitholder s
interest in the Partnership, the person signing this Agreement of
Assignment and Transfer hereby certifies the following under penalties of
perjury:
(i) Unless this box [ ] is checked, 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 correctly printed
in the signature box in Box A of this Agreement of Assignment and Transfer;
and (iii) the Unitholder s home address (for individuals) or office address
(for non-individuals), is correctly printed (or corrected) on the top of
this Agreement of Assignment and Transfer. If a corporation, the
jurisdiction of incorporation is ________________________.
The person signing this Agreement of Assignment and Transfer
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.
________________________________________________________________________________
BOX E
SUBSTITUTE FORM W-8
(See Instructions to Complete Agreement of Assignment and Transfer - Box E)
By checking this box [ ], the person signing this Agreement of
Assignment and Transfer hereby certifies under penalties of perjury that
the Unitholder is an "exempt foreign person" for purposes of the backup
withholding rules under the U.S. federal income tax laws, because the
Unitholder:
(i) Is a nonresident alien individual or a foreign corporation,
partnership, estate or trust;
(ii) If an individual, has not been and plans not to be present
in the U.S. for a total of 183 days or more during the calendar year; and
(iii) Neither engages, nor plans to engage, in a U.S. trade or
business that has effectively connected gains from transactions with a
broker.
________________________________________________________________________________
AGREED TO AND ACCEPTED:
Madison Liquidity Investors 104, LLC
By:_______________________________________________________
Madison Liquidity Investors 104, LLC, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
