AGREEMENT of ASSIGNMENT and TRANSFER
For Limited Partnership Interests in
Westin Hotels Limited Partnership
1. OFFER OF UNITS; AGREEMENT TO TRANSFER
I, the undersigned, hereby offer (the "Offer") to sell to Windy City
Investments, LLC or its assignee or assignees (such purchasing entity is
hereafter referred to as "Windy City"), __________ limited partnership
interests (including any certificates or depositary receipts evidencing
such interests) (the "Units") in Westin Hotels Limited Partnership, a
Delaware limited partnership (the "Partnership"), for $525 per Unit, in
cash (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 or declared by the Partnership on or after July 7, 2003
(to the extent Windy City does not receive such distributions with respect
to any Units transferred hereby)), plus any interest payable by Windy City
as provided in Windy City's offer to purchase Units, dated July 7, 2003
(the "Offer to Purchase").
Subject to, and effective upon, acceptance of my Offer by Windy City and
payment for the Units offered hereby in accordance with the terms and
subject to the conditions of this Agreement of Assignment and Transfer, I
hereby sell, assign, transfer, convey and deliver ("Transfer") to Windy
City, all of my right, title and interest in and to the Units and any and
all cash or non-cash distributions, other Units, or other securities issued
or issuable in respect thereof on or after July 7, 2003, including, 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 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(s)
of the Partnership (the "General Partner"), and (ii) in the event that
Windy City 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 Windy City to become a
substituted limited partner of the Partnership.
It is my intention that Windy City, if it so elects, succeed my interest as
a substituted limited partner, as described in the Partnership Agreement,
with respect to the transferred Units. It is my understanding, and I hereby
acknowledge and agree, that Windy City shall be entitled to receive (i) all
distributions of cash or other property from the Partnership attributable
to the transferred Units that are made on or after July 7, 2003, including,
without limitation, all distributions of cash from operations and capital
proceeds, without regard to whether the applicable sale, financing,
refinancing or other disposition took place before or after the transfer
and (ii) all proceeds that are paid on or after July 7, 2003 from or as a
result of any claim, litigation, class or derivative action brought by or
for the benefit of the limited partners with respect to the transferred
Units, regardless of when the claims brought pursuant to such action
accrued. It is my further understanding, and I further acknowledge and
agree, that, subject to Windy City's acceptance of the Offer, 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 Windy City as provided in the Partnership
Agreement, or in accordance with such other lawful allocation methodology
as may be agreed upon by the Partnership and Windy City.
2. POWER OF ATTORNEY
Effective upon Windy City's acceptance of the Offer, I hereby irrevocably
constitute and appoint Windy City and its designees as my true and lawful
agent and attorney-in-fact with respect to the Units, with full power of
substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to (i) vote or act in such a manner as any
such attorney-in-fact shall, in its sole discretion, deem proper with
respect to the Units; (ii) deliver the Units and transfer to Windy City
ownership of the Units on the Partnership's books maintained by the General
Partner; (iii) endorse, on my behalf, any payments received by Windy City
from the Partnership that are made on or after July 7, 2003 which are made
payable to me, in favor of Windy City or any other payee Windy City
otherwise designates; (iv) 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; (v) execute on my
behalf any applications for transfer required by the National Association
of Securities Dealers Notice to Members 96-14 and any distribution
allocation agreements required to give effect to the transactions
contemplated by this agreement; (vi) receive all benefits and cash
distributions and otherwise exercise all rights of beneficial ownership of
the Units; and (vii) direct the General Partner to immediately change the
address of record of the registered owner of the transferred Units to that
of Windy City, as my attorney-in-fact. Windy City shall not be required to
post bond of any nature in connection with this power of attorney. I hereby
direct the Partnership and General Partner to remit to Windy City
distributions made by the Partnership with respect to the Units on or after
July 7, 2003. To the extent that any distributions are made by the
Partnership with respect to the Units on or after July 7, 2003 and are
received by me, I agree to promptly pay over such distributions to Windy
City. I further agree to pay any costs incurred by Windy City in connection
with the enforcement of any of my obligations hereunder and to indemnify
and hold harmless Windy City from and against all claims, damages, losses,
obligations and any responsibilities arising, directly or indirectly, out
of my breach of any agreements, representations and warranties made by me
herein. Windy City will be entitled to recover from me all costs and
expenses Windy City incurs, including fees and expenses incurred in the
collection process as well as reasonable lawyers' fees and costs at trial
and on appeal, in recovering any amounts due Windy City from me under this
agreement. I shall keep the terms of this agreement and all other dealings
and communications between myself and Windy City and our respective
representatives confidential.
3. CUSTODIAN SIGNATURE AND AUTHORIZATION REQUIRED
IF LEGAL TITLE TO THE UNITS IS HELD THROUGH AN XXX, XXXXX OR SIMILAR
ACCOUNT, I UNDERSTAND THAT THIS AGREEMENT MUST BE SIGNED BY THE CUSTODIAN
OF SUCH XXX OR XXXXX ACCOUNT. FURTHERMORE, I HEREBY AUTHORIZE AND DIRECT
THE CUSTODIAN OF SUCH XXX OR XXXXX ACCOUNT TO CONFIRM THIS AGREEMENT.
4. REPRESENTATIONS AND WARRANTIES
I hereby represent and warrant to Windy City and the Partnership that (i) I
have received the Offer to Purchase, (ii) I own the Units and have full
right, power and authority to validly sell, assign, trade, transfer, convey
and deliver to Windy City the Units, (iii) effective at the time the Units
are accepted for payment by and transferred to Windy City, Windy City 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 and transfer thereof,
and the Units will not be subject to any adverse claim and (iv) I am a
"United States person" as defined in Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended (the "Internal Revenue Code").
I hereby also represent, warrant and confirm that in making the Offer I
have not relied on any information or representation of Windy City except
for information regarding the price at which Windy City is prepared to
purchase my Units, and that Windy City has not given me any investment
advice nor have I compensated Windy City in any manner. I understand that
the price offered hereby may be more or less than the fair market price of
the Units or than prices recently quoted by secondary market matching
services. By making the Offer, I wish to have Windy City bear all future
risks and uncertainties relating to the value of the Units. I understand
that Windy City reserves the right to decline my Offer and that no contract
will be deemed to have arisen prior to Windy City's written acceptance of
my Offer.
5. RELEASE OF GENERAL PARTNER
I hereby release and discharge the General Partner and its officers,
shareholders, directors, employees and agents from all actions, causes of
action, claims and demands I have, or may have, against the General Partner
that result from the General Partner's reliance on the Offer or 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.
6. OFFER IRREVOCABLE
All authority herein conferred or agreed to be conferred shall survive my
death or incapacity and all of my obligations shall be binding upon my
heirs, personal representatives, successors, and assigns. My Offer is firm
and irrevocable and may not be withdrawn for 90 days from the date hereof.
In addition, I hereby agree not to offer to sell or accept any offer to
purchase any or all of the Units to or from any third party prior to the
date that is 90 days from the date hereof or at any time after Windy City's
acceptance of my Offer. Upon request, I will execute and deliver any
additional documents deemed by Windy City and its designees to be necessary
or desirable to complete the assignment, transfer and purchase of the
Units.
7. PAYMENT PROCEDURES
I hereby understand that if my Offer is accepted by Windy City, (i) payment
by Windy City for the Units transferred hereby and accepted by Windy City
will be made by check mailed to me or my custodian, subject to the terms of
this Agreement of Assignment and Transfer and the Offer to Purchase, once
the confirmation of transfer of the Units is received by Windy City from
the Partnership and the effective date of such transfer has passed, and
(ii) in certain cases, payment will be made by Windy City promptly after
the Partnership has declared the last distribution payable to me. I further
understand that the effective date of transfer is established by the
Partnership and may occur several weeks after the date on which Windy City
receives confirmation from the Partnership of the transfer of the Units to
Windy City. I hereby agree that Windy City shall have no liability for any
damages that may be incurred by me as a result of any delay in such payment
caused by the Partnership's failure to either promptly effect transfers or
declare the amount of distributions. I acknowledge that, notwithstanding
the foregoing, Windy City reserves the right, in its sole discretion, to
pay for the Units transferred hereby prior to the effective date of
transfer established by the Partnership.
8. TERMINATION
I hereby understand and agree that Windy City may, at its sole discretion,
terminate this Agreement of Assignment and Transfer (in whole or in part)
prior to making payment for the Units in accordance with the terms and
conditions of the Offer to Purchase. If Windy City does terminate this
Agreement of Assignment and Transfer, I understand that (i) Windy City
shall notify me promptly after such termination and return the Units to me
or my custodian, and (ii) Windy City shall have no liability for any
damages incurred by me as a result of such termination.
9. CERTIFICATIONS
I hereby certify, under penalties of perjury, that (i) the number shown on
the form below is my correct Social Security Number or Taxpayer
Identification Number and (ii) I am not subject to backup income tax
withholding because: (a) I am exempt from backup income tax withholding,
(b) I have not been notified by the Internal Revenue Service (the "IRS")
that I am subject to backup income tax withholding as a result of a failure
to report all interest or dividends, or (c) the IRS has notified me that I
am no longer subject to backup income tax withholding.
I hereby also certify, under penalties of perjury, that I am, if an
individual, not a nonresident alien for purposes of U.S. income taxation
and, if not an individual, not a foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Internal Revenue Code and
related Treasury Regulations promulgated thereunder). I understand that
this certification may be disclosed to the IRS by Windy City and that any
false statements herein could be punishable by fine, imprisonment, or both.
10. ASSIGNMENT AND DISCLAIMER
I understand and agree that Windy City may, without my consent, assign all
or some of its rights and delegate all or some of its duties arising out of
this Agreement of Assignment and Transfer to an affiliate. I hereby
disclaim any contractual or other legal relationship with Windy City, which
merely acted as a provider of general information about this offering and
other offerings. I understand that the only party acquiring my Units, and
participating in this agreement, is Windy City.
11. GOVERNING LAW; WAIVER OF TRIAL BY JURY
This Agreement of Assignment and Transfer shall be governed by and
construed in accordance with the laws of the state of New York. I hereby
waive any claim that any state or federal court in the state of New York is
an inconvenient forum, and waive any right to trial by jury. I hereby
submit to the jurisdiction of any court in the state of New York in any
suit or proceeding arising out of or relating to this agreement.
AS THE TRANSFEROR, YOU MUST COMPLETE ALL ITEMS IN THIS SECTION TO THE
EXTENT APPLICABLE OR NOT ALREADY COMPLETED.
I hereby make application to transfer and assign to Windy City, subject to
the General Partner's rights, all rights and interests, as set forth
herein, in the Partnership and for Windy City to succeed to such rights and
interests as a substituted limited partner, successor in interest and
assignee.
FULL NAME OF PARTNERSHIP: Westin Hotels Limited Partnership QUANTITY
You desire to sell: _________ Units
PARTNERSHIP ID CERTIFICATE INFORMATION
INFORMATION Was a certificate issued to you? Circle One: Yes No
CUSIP#:
Partnership Tax ID # If yes, did you include the certificate: Circle One: Yes No
If not included, why not?
REGISTRATION INFORMATION
Indicate exactly as shown on Partnership records and include any custodial
information. If a Custodial Account, the address of the beneficial owner
should be your address.
Partnership Interests are currently registered as follows:
Tax Identification Information
Complete applicable sections
Social Security or Tax ID #:
Custodian/Trustee Tax ID #:
Home Phone: Circle One: U.S. Citizen Resident Alien Non-Resident Alien
CERTIFICATION
I hereby certify and represent that I have possession of valid title and
all requisite power to assign such interests and that assignment is in
accordance with applicable laws and regulations and further certify, under
penalty of law, the following:
Reason for Transfer: Sale (for consideration)
SIGNATURE CERTIFICATION/POWER OF ATTORNEY
I hereby irrevocably constitute and appoint Windy City as my true and
lawful agent and attorney-in-fact with respect to the Units, with full
power of substitution. This must be signed by the registered holder(s)
exactly as the name(s) appear(s) on the Partnership records. Persons who
sign as a representative or in any fiduciary capacity must indicate their
capacity when signing and must present satisfactory evidence of their
authority to so act.
Your Signature Medallion Signature Guarantee:
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Date
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Co-Transferor's Signature Medallion Signature Guarantee:
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(if applicable)
Date
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Custodian's Signature Medallion Signature Guarantee:
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Medallion Signature Guarantee:
Date (if applicable)
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If signature is by trustee(s), executor(s), administrator(s), guardian(s),
attorney(s)-in-fact, agent(s), officer(s) or a corporation or another acting
in a fiduciary or representing capacity, please provide the following
information:
Name(s): Capacity: (Full Title):
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AGREED TO AND ACCEPTED:
Windy City Investments, LLC
By: TA#
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Unit Price: Trade Date: Account Executive:
