AGREEMENT
This Agreement (the "Agreement") is made and entered into as
of the 22nd day of May, 1997, by and between The Xxxxx Corporation
("Xxxxx"), a Massachusetts corporation with a principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and
Gramercy Park Investments, LP ("Gramercy"), a Delaware limited
partnership wit:h a principal place of business at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx, 00000.
WITNESSETH:
WHEREAS, Gramercy is engaged in the business of investing
in, among other things, real estate limited partnerships;
WHEREAS, Xxxxx and certain of its Affiliates (as defined in
Section 12) sponsored and are engaged in the business of
managing, among other things, the funds listed on Schedules I and
II hereto and other funds (individually a "Xxxxx Fund" and
collectively, the "Xxxxx Funds");
WHEREAS, Gramercy has sought to obtain from Xxxxx lists of
the Investors in certain of the Xxxxx Funds for the stated
purpose of contacting such investors in order to attempt to
acquire their units in the Xxxxx Funds;
WHEREAS, Xxxxx has refused to provide lists of the investors
to Gramercy, alleging that. they are not entitled to obtain such
lists;
WHEREAS, Gramercy instituted suit in the Superior Court
Department of the Trial Court for Suffolk County, Massachusetts
captioned Gramercy Park Investments LP, v. The Xxxxx Realty Fund,
Ltd. - III, et al. Docket No 97-1612 (the "Litigation") seeking,
among other things, declaratory and injunctive relief and money
damages against Xxxxx, certain of the Xxxxx Funds, and certain
general partners of the Xxxxx Funds; and
WHEREAS, the parties have conferred through their respective
counsel and are desirous of resolving and settling the dispute
between them and the Litigation, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants and agreements
contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Delivery of Lists: From time to time during the twelve
month period commencing on the date hereof and expiring on the
first anniversary date of this Agreement, Xxxxx will, upon
written request from Gramercy, deliver to Gramercy or its
designee within 10 business days of receipt of such written
request, current or updated lists of investors (including the
names of beneficial owners of retirement accounts) in any Xxxxx
Fund listed on Schedule I or Schedule II, in which Gramercy or an
Affiliate of Gramercy is a limited partner, unitholder,
shareholder or otherwise an equity investor (as the case may be)
provided such request includes an undertaking by Gramercy to pay
the cost of reproducing and delivering such list within ten
business days after receipt of such lists. The lists will be
sorted alphabetically and delivered in both paper format and on
3.5" IBM Compatible computer diskette in ASCII comma delimited
format.
2. Payment for Lists: Gramercy will pay Xxxxx $300 for
each list provided pursuant to section 1, representing the
estimated cost of reproducing and delivering each such list.
3. Restrictions On Activities: For a period commencing on
the date hereof and continuing for 60 months with respect to
those Xxxxx Funds listed on Schedule I and 120 months with
respect to those Xxxxx Funds listed on Schedule II from the last
date an investor list in a Xxxxx Fund is delivered to Gramercy in
response to Gramercy's request, Gramercy and its Affiliates shall
not, without the prior written consent of Xxxxx, which may be
granted or withheld in Xxxxx'x sole and exclusive discretion and
for any reason, or no reason:
(i) in any manner acquire, attempt to acquire, or make
a proposal to acquire, directly or indirectly, more that 5% of
the voting securities of any Xxxxx Fund (except with respect to
the Xxxxx Funds listed on Schedule I insofar as Gramercy and its
Affiliates are permitted under Section 24(d)(8)(A) of the
Securities Exchange Act of 1934 to make a tender offer for up to
2% of such securities during a 12-month period, to which Gramercy
contends the provisions of Section 14(d) do not otherwise apply,
provided further that in no event shall Gramercy and its
Affiliates acquire, attempt to acquire, or make a proposal to
acquire, directly or indirectly, more than 10% of the voting
Securities of any Xxxxx Fund listed on Schedule I);
(ii) vote its interest in any Xxxxx Fund on any issue
other than in proportion to the votes of all other interest
holders who vote on such issue;
(iii) propose, or propose to enter into, directly or
indirectly, any merger consolidation, business combination, sale
or acquisition of assets, liquidation or other similar
transaction involving any Xxxxx Fund;
(iv) form, join or otherwise participate in a "group"
within the meaning of Section 13 (d) (3) of the Securities
Exchange Act of 1934, as amended, with respect to any voting
securities of any Xxxxx Fund; provided, however, that Gramercy
and its Affiliates shall not be deemed to be acting in a "group"
in violation of this Section 3(iv) solely by virtue of their
voting their interest in compliance with Section 3(ii) of this
Agreement;
(v) make or participate in any way, directly or
indirectly, in any solicitation of "proxies" or "consents" (as
such terms are used in the proxy rules of the Securities and
Exchange Commission to vote, or seek to advise or influence any
person with respect to the voting of any voting securities of any
Xxxxx Fund;
(vi) sell, transfer or assign any interests in any
Xxxxx Fund to any person or entity not bound by the terms and
conditions of this Agreement (except that with respect to the
Xxxxx Funds listed on Schedule I this provision is limited to a
period of 30 months);
(vii) disclose any intention, plan or arrangement
relating to any Xxxxx Fund which is inconsistent with the terms
of this Agreement; or
(viii) loan money to, advise, assist or encourage any
person in connection with any of the actions restricted or
prohibited by this Agreement with respect to any Xxxxx Fund.
Notwithstanding anything contained in Section 3(vi) of this
Agreement to the contrary, Gramercy or its Affiliates shall not
be prohibited from selling, transferring or assigning:
(a) during any consecutive six-month period, an amount of
voting securities or other interests in any Xxxxx Fund which does
not exceed two percent of the outstanding voting securities or
other interests in any such Xxxxx Fund; and
(b) following the announcement of any proposed capital
transaction involving a sale or transfer of some or all of the
assets or interests of a Xxxxx Fund to any affiliate of Xxxxx,
any amount of voting securities or other interest in such Xxxxx
Fund owned by Gramercy provided in the case of either (a) or (b)
that the purpose of such sales, transfers or assignments is not
to evade or circumvent the general intent of this Agreement and
provided further that such sale of transfers or assignments do
not have the effect of evading or circumventing the general
intent of this Agreement. Xxxxx covenants and agrees to provide
notice to Gramercy of any proposed transaction contemporaneously
with the public announcement of such transaction.
4. Use of Lists, Prohibition on Furnishing to Others:
Subject to compliance with Section 3 of this Agreement, any
investor list obtained by Gramercy or any Affiliate of Gramercy
relative to any Xxxxx Fund will be utilized only for the purpose
of contacting investors to (i) inquire as to whether they wish to
sell their units in such Xxxxx Fund to Gramercy or any Affiliate
of Gramercy; or (ii) to state its recommendations and reasons
therefor with respect to any proposal submitted to the investors
in such Xxxxx Fund by a person or entity other than Gramercy and
its Affiliates, and for no other purpose. The lists will not be
furnished by Gramercy or any Affiliate of Gramercy to any other
person or entity (other than agents and representatives of and
advisors to Gramercy and its Affiliates) without the consent of
Xxxxx. Gramercy covenants and agrees that it will not telephone
or otherwise directly contact any investor in any Xxxxx Fund
listed on Schedule II, except by mail, unless any such investor
first initiates contact with Gramercy.
5. Compliance with Securities Laws: Gramercy acknowledges
its obligations under the securities laws and the Rules of the
Securities and Exchange Commission.
6. Provision of Copies of All Communications: Gramercy
covenants and agrees that it will deliver to Xxxxx, at least
five days before mailing or otherwise disseminating to investors
in any Xxxxx Fund any communication to be given to one or more
investors in any Xxxxx Fund by or on behalf of Gramercy or any
Affiliate of Gramercy. Xxxxx covenants and agrees that it will
not mail any communication to such Investors until the seventh
business day after delivery of such materials to it by Gramercy,
unless such materials were sent by Gramercy pursuant to clause
(ii) of Section 4 of this Agreement, in which case Xxxxx will not
mail any communication to such investors until the fifth business
day after delivery of such materials to it by Gramercy.
7. Fiduciary Duties of Xxxxx; Safe Harbor Provision,
Protection of Partnership Status: Gramercy acknowledges that:
(a) Xxxxx and its Affiliates have significant fiduciary
obligations to the investors in the Xxxxx Funds, and has stated
that it is entering into this Agreement, among other reasons, to
fulfill those fiduciary obligations;
(b) Xxxxx and its Affiliates believe that they may need to
take certain further action to meet its fiduciary obligations,
including, without limitation, suspending the acceptance of
transfer paperwork in one or more Xxxxx Funds in order to (i)
avoid the termination of such Xxxxx Fund's status as a
partnership under the Internal Revenue Code of 1986, as amended
(the "Code"); (ii) avoid the treatment of such Xxxxx Fund as a
"publicly traded partnership" under the code; or (iii) prevent
such Xxxxx Fund from following outside any so-called "safe
harbor" provision relating to taxation or tax status, including
provisions relating to publicly traded partnerships; and
(c) The suspension of the acceptance of transfer paperwork
by Xxxxx or its Affiliates would mean that notwithstanding the
presentment of valid transfer paperwork and the terms of this
Agreement, transfers requested by Gramercy or an Affiliate of
Gramercy would not be processed or reflected on the books and
records of the applicable Xxxxx Fund.
8. Form of Transfer Agreements: Xxxxx acknowledges that:
(a) the form of transfer agreement attached as Exhibit A,
if fully and properly completed, is sufficient to satisfy the
transfer paperwork requirements of the Xxxxx Funds in connection
with the acquisition of units or shares by Gramercy and its
Affiliates;
(b) it will honor the form of power of attorney contained
in the transfer agreement attached as Exhibit A; and,
(c) the form of transfer agreement attached as Exhibit 8,
if fully and properly completed, is sufficient to satisfy the
transfer paperwork requirements of the Xxxxx Funds in connection
with the sale of units or shares by Gramercy and its Affiliates.
9. Dismissal of the Litigation: The parties, by and
through counsel, shall within 15 days from the date of this
Agreement file a stipulation of Dismissal with prejudice and take
all other steps necessary to cause the Litigation to be dismissed
with prejudice, with each side to bear its own costs.
10. Release: For and in consideration of the agreements
herein made, Gramercy does hereby remise, release and acquit
Xxxxx and all of its Affiliates, predecessors, successors and
assigns and each of the respective Affiliates, predecessors,
successors and assigns of the foregoing from and against any and
all claims, damages, costs, expenses, actions and causes of
action which Gramercy or any Affiliate of Gramercy (including
their respective Affiliates, predecessors, successors and
assigns) had in the past, now has, or may in the future have
arising from the failure or related to the failure to produce an
investor list of any Xxxxx Fund, including those claims which
were or could have been asserted in the Litigation, except for
such a failure or refusal in violation of the provisions of this
Agreement.
11. Notices: Any and all notices required or permitted
hereunder shall be in writing and shall bp deemed given or
served, as the case may be, upon actual delivery to the parties
at the following addresses:
If to Gramercy: Xxxxx X. Xxxxxx
Gramercy Park Investments, LP
000 Xxxxx Xxxxxx-0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Xxxxxxxx X. Xxxxxx, Esq.
Wolf, Haldenstein Xxxxx
Xxxxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Xxxxx: The Xxxxx Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
with a copy to: Xxxxx X. Xxxxxxxxx, Esq.
Senior Vice President and
General Counsel
The Berkshire Group
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
12. Affiliates: For purposes of this Agreement, the term
"Affiliate" shall mean with respect to any person or entity, (i)
any other person or entity which controls, is controlled by or is
under control with such person or entity (ii) the officers,
directors and partners of such entity, and (iii) the immediate
family members of such person or of any person described in
clause (i) or (ii).
13. No Admissions; Confidentiality: The parties agree that
this Agreement is being entered into solely to settle a dispute
between them, and nothing herein shall be deemed to constitute an
admission or liability on the part of Xxxxx, all such liability
being expressly contested. All requests for investor lists made
under this Agreement, and the furnishing of such lists, shall be
kept strictly confidential by the parties hereto, except to the
extent that disclosure of any such request or the furnishing of
any such list is required by applicable law or regulation or by
court order.
14. Enforcement: The parties agree that each shall be
entitled to equitable relief, including injunctive relief and
specific performance, in the event of any breach of the
provisions of this Agreement, in addition to all other remedies
available at law or in equity. In the event either party must
refer this agreement to an attorney for enforcement the
prevailing party shall be entitled to all costs of enforcement,
including attorneys' fees.
15. Governing Law; Venue and Jurisdiction: This Agreement
shall be governed by the laws of the Commonwealth of
Massachusetts without regard to principles of conflict of law
thereof. The parties agree that the federal and state courts
located within the Commonwealth of Massachusetts shall have
exclusive jurisdiction over disputes arising hereunder, and the
parties hereby consent to such venue and submit to the
jurisdiction of such courts. If the federal courts have subject
matter jurisdiction of a dispute arising hereunder, the parties
agree to litigate such dispute in the federal courts.
16. Captions: Captions and section headings used herein
are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
17. Amendments: This Agreement may be amended, changed,
modified, altered or terminated only by a written instrument or
written instruments signed by all of the parties hereto.
18. Severability: In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such Holding shall not invalidate or
render unenforceable any other provision hereof.
19. Counterparts: This Agreement may he executed in
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto, intending to
be legally bound, has caused this Agreement to be duly executed
on its behalf as of the date first above written.
Gramercy Park Investments LP
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Managing Director
THE XXXXX CORPORATION
By /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
President
SCHEDULE I
Xxxxx Cash Plus Limited Partnership
Xxxxx Cash Plus-II Limited Partnership
Xxxxx Cash Plus-V Limited Partnership
Xxxxx Insured Plus Limited Partnership
Xxxxx Insured Plus-II Limited Partnership
Xxxxx Insured Plus-III Limited Partnership
Xxxxx Insured Mortgage Limited Partnership
Xxxxx Associates 1980-1
Xxxxx Realty Fund, LTD-III
Xxxxx Realty Limited Partnership-IV
Xxxxx Realty Limited Partnership-V
Xxxxx Realty Limited Partnership-VII
Xxxxx Institutional Mortgage Fund Limited Partnership
SCHEDULE II
Xxxxx Government Income Trust
Xxxxx Government Income Trust II
Exhibit A
AGREEMENT of ASSIGNMENT and TRANSFER
For Limited Partnership Interests in
XXXX XXXXXX REALTY YIELD PLUS, L.P.
Please make any corrections to
name/mailing address in the space to the left.
I hereby tender to Madison Liquidity Investors VII, LLC, a
Delaware limited liability company ("Madison"), the above-
described limited partnership interests (the "Units") in Xxxx
Xxxxxx Realty Yield Plus, L.P., a Delaware limited partnership
(the "Partnership"), for $5.75 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 to me by the Partnership on or after October
3, 1996) in accordance with the terms and subject to the
conditions of Madison's Offer to Purchase as Exhibit (a)(1) to
Schedule 14D-1 dated October 3, 1996 (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 will remain open until November 8,
1996, subject to sooner expiration upon reaching the maximum
43,658 accepted Units, and subject to extension or earlier
termination 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 14 (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 October 3, 1996, 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 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, if it 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 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
October 3, 1996, 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 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 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 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
ownership of the Units on the Partnership's books maintained by
the General Partner; (iii) endorse, on my behalf, any and all
payments received by Madison from the Partnership that are made
on or after October 3, 1996, which are made payable to me, in
favor of Madison or any other payee Madison 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 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; (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 Madison,
as my attorney-in-fact. Madison is further authorized, as part
of its powers as my attorney-in-fact with respect to the Units,
to commence any litigation that Madison, in its sole discretion,
deems necessary to enforce any exercise of Madison's powers as my
attorney-in-fact as set forth herein. Madison 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 any distributions made by the
Partnership with respect to the Units on or after October 3,
1996. To the extent that any distributions are made by the
Partnership with respect to the Units on or after October 3,
1996, that are received by me, I agree to promptly pay over such
distributions to Madison. I further agree to pay any costs
incurred by Madison 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.
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, conditional solely upon
Madison's execution of this Agreement.
If legal title to the Units is held through an XXX or 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 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 the Units, and that
effective when the Units are accepted for payment by Madison, I
hereby convey to Madison, and Madison 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 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)
All
Date:__________, 1996 ______________________________________________
(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 Your Telephone Number Signature of Co-Seller
or Taxpayer Identification Number and Medallion Signature
Guarantee (If applicable)
________________________________________________________________________
Your Signature and Medallion Signature Guarantee
__________________________________________________________________________
Custodian Signature and Medallion Signature Guarantee (Required if Units
held in XXX/XXXXX)
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 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: , 199
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 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 VII, LLC
By:_______________________________________________________
