EXHIBIT 99(a)(2)
WESTIN HOTELS LIMITED PARTNERSHIP
AGREEMENT OF SALE
The undersigned Limited Partner, and/or Assignee Holder or Unit Holder (the
"Seller") does hereby sell, assign, transfer, convey and deliver (the "Sale")
to Kalmia Investors, LLC, a Delaware limited liability company ("Kalmia" or
the "Purchaser"), all of the Seller's right, title and interest in units of
limited partnership interests including any rights attributable to claims,
damages, recoveries, including recoveries from class action lawsuits, and
causes of action accruing to the ownership of such units of limited
partnership interests ("Units") in Westin Hotels Limited Partnership (the
"Partnership") being sold pursuant to this Agreement of Sale ("Agreement")
and the Offer to Purchase dated December 16, 1998, (which together with this
Agreement constitute the "Offer") for a purchase price of $1,000 per Unit,
less the amount of any distributions declared or paid from any source by the
Partnership with respect to the Units after December 15, 1998, without regard
to the record date or whether such distributions are classified as a return
on, or a return of, capital.
The Seller hereby represents and warrants to the Purchaser that the Seller
owns such Units 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 further
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.
Such Sale 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 Agreement. 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.
Seller, by executing this Agreement, hereby irrevocably constitutes and
appoints Purchaser as its true and lawful agent and attorney-in-fact with
respect to the Units 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
transfer of the ownership of the Units 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 withdrawal of
the Seller as a Unitholder and/or Limited Partner of the Partnership, (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, (iii) deliver the Units
and transfer ownership of the 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 December 15, 1998, 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 allocation 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, and
(vi) receive all benefits and distributions and amend the books and records
of the Partnership, including Seller's address and record, to direct
distributions to Purchaser as of the effective date of this Agreement and
otherwise exercise all rights of beneficial owner of the Units. Purchaser
shall not be required to post bond of any nature in connection with this
power of attorney.
SELLER DOES HEREBY DIRECT AND INSTRUCT THE PARTNERSHIP AND THE GENERAL
PARTNER IMMEDIATELY UPON THEIR RECEIPT OF THIS AGREEMENT OF SALE (i) TO AMEND
THE BOOKS AND RECORDS OF THE PARTNERSHIP TO CHANGE THE SELLER'S ADDRESS OF
RECORD TO KALMIA INVESTORS, LLC, C/O XXXXX CAPITAL, 0000 XXXXX XXXXXX XXXXX,
XXXXX 000, XXX XXXXX, XXXXXXXXXX 00000, AND (ii) TO FORWARD ALL
DISTRIBUTIONS AND ALL OTHER INFORMATION TO BE RECEIVED BY SELLER TO KALMIA
INVESTORS, LLC TO THE ADDRESS SET FORTH IN (i) ABOVE.
Seller and Purchaser do hereby release and discharge the General Partner and
its affiliates and each of their respective officers, directors,
shareholders, employees, and agents from all actions, causes of actions,
claims or demands Seller or Purchaser have, or may have, against any such
person that result from such party's reliance on this Agreement or any of the
terms and conditions contained herein. Seller and Purchaser do hereby
indemnify and hold harmless the Partnership and the General Partner and its
affiliates and each of their respective officers, directors, shareholders,
employees, and agents from and against all claims, demands, damages, losses,
obligations, and responsibilities arising, directly or indirectly, out of a
breach of any one or more of their respective representations and warranties
set forth herein.
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. 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. Kalmia reserves the right to amend or extend the offer at any
time without further notice to the Limited Partners.
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.
This Agreement shall be governed by and construed in accordance with the laws
of the State of California. Seller waives any claim that California or the
Southern District of California 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 to the Units to the Purchaser.
WESTIN HOTELS LIMITED PARTNERSHIP
By executing this Agreement the Seller hereby acknowledges to the General
Partner that the Seller desires to withdraw as a Limited Partner as to the
Units referenced herein and hereby directs the General Partner to take all
such actions as are necessary to accomplish such withdrawal, 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 withdrawal of
the Limited Partner.
IN WITNESS WHEREOF the Limited Partner has executed, or caused its Authorized
Signatory to execute, this Agreement.
Print Name of Limited Partner (as it appears on the investment)________________
Print Name and Capacity of Authorized Signatory (if other than above)__________
-------------------------------------- ----------------------------------
Seller's Signature Joint Seller's Signature
MEDALLION GUARANTEE MEDALLION GUARANTEE
(Medallion Guarantee for EACH Seller's (Medallion Guarantee for EACH
signature) Seller's signature)
__________________ Investor I.D. Number -------------------------------------
__________________ Home Telephone Number ------- FOR INTERNAL USE ONLY -------
ACCEPTED:
__________________ Office Telephone Number KALMIA INVESTORS, LLC
By: Its Manager, Xxxxx Capital, LLC
__________________ Mailing Address
By:__________________________________
__________________ City, State, Zip Code
-------------------------------------
__________________ State of Residence
YOU MUST MAIL EXECUTED ORIGINAL TO PURCHASER:
__________________ Social Security/Tax ID No. Kalmia Investors, LLC
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
__________________ Date Xxx Xxxxx, Xxxxxxxxxx 00000
$1,000 Sales Price per Unit
__________________
_________ Number of Units to be sold
OR
/ / Check here if you wish to sell ALL your units
PLEASE CALL US AT (000) 000-0000 IF YOU HAVE ANY QUESTIONS
REGARDING THE SALE OF YOUR UNITS.
INSTRUCTIONS TO COMPLETE AGREEMENT OF SALE
ALL SIGNATURES MUST BE MEDALLION GUARANTEED
BENEFICIAL OWNER OF RECORD SHOULD:
----------------------------------
1. COMPLETE and SIGN Agreement.
2. Have your signature Medallion Guaranteed by your Bank or Broker.
3. Indicate Number of Units Owned and/or To Be Sold.
4. Return Agreement in Envelope Provided.
JOINT OWNERSHIP
---------------
Please have ALL owners of record sign Agreement, and SEPARATELY Medallion
Guarantee each signature.
XXX/XXXXX
---------
1. Beneficial owner must sign Agreement.
2. Provide Custodian information. (i.e. Name, Company Name, Address, Phone No.
and Account No.)
3. Kalmia will obtain the Medallion Guarantee of Custodian Signature.
DEATH
-----
If any owner is deceased, please enclose a certified copy of Death
Certificate. If Ownership is OTHER than Joint Tenants With Right of
Survivorship, please provide Letter of Testamentary or Administration current
within 60 days showing your beneficial ownership or executor capacity (in
addition to copy of Death Certificate).
CORPORATION
-----------
Corporate resolution required showing authorized signatory.
TRUST, PROFIT SHARING OR PENSION PLAN
-------------------------------------
Please provide title, signature, and other applicable pages of Trust
Agreement showing authorized signatory.
WSTN.12.16.9814D
