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 __________, or
its assignee or assignees, (such purchasing entity is hereafter referred to
as "Madison") ___________ limited partnership interests (including any
certificates or depositary receipts evidencing such interests) (the
"Units") in Westin Hotels Limited Partnership (the "Partnership"), for
___________ per Unit 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
_________________.
Subject to, and effective upon, acceptance of my Offer by Madison and
payments 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 (the "Transfer") to
Madison, 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 ____________, including,
without limitations, 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 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 my interest as a
substituted limited partner, as described 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
(i) all distributions of cash or other property from the Partnership
attributable to the transferred Units that are made on or after
____________, including, without limitation, all distributions or 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
___________ 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 Madison'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 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.
2. POWER OF ATTORNEY
Effective upon Madison's acceptance of the Offer, 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 as 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 ownership of the Units on
the Partnership's books maintained by the General Partner; (iii) endorse,
on my behalf, any payments received by Madison from the Partnership that
are made on or after ___________ 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
required by 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 Madison, as my attorney-in-fact. Madison 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
Madison distributions made by the Partnership with respect to the Units on
or after ________________. To the extent that any distributions are made by
the Partnership with respect to the Units on or after ________________ and
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 and to indemnify
and hold harmless Madison 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. Madison will be entitled to recover from me all costs and expenses
Madison 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 Madison from me under this Agreement.
I shall keep the terms of this Agreement and all other dealings and
communications between myself and Madison and their respective
representatives confidential.
3. CUSTODIAN SIGNATURE AND AUTHORIZATION REQUIRED
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 AN XXX OR XXXXX TO CONFIRM THIS AGREEMENT.
4. REPRESENTATIONS AND WARRANTIES
I hereby represent and warrant to Madison and the Partnership that (i) I
own the Units and have full power and authority to validly sell, assign,
trade, convey and deliver to Madison the Units, (ii) effective at the time
the Offer is accepted by Madison, Madison 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 (iii) 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 represent, warrant and confirm that in making the Offer I have not relied
on any information or representation of Madison except for information
regarding the price at which Madison is prepared to purchase my Units, and
that Madison has not given me any investment advice nor have I compensated
Madison 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. I further understand
that Madison believes that the value of the Units will ultimately be more
than the price offered hereby, but there are numerous risks and
uncertainties that may cause Madison's belief to be wrong. By making the
Offer, I wish to have Madison bear those risks and uncertainties. I
understand that Madison reserves the right to decline my Offer and that no
contract will be deemed to have arisen prior to Madison'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 results 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 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 Madison's
acceptance of my Offer. 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.
7. PAYMENT PROCEDURES
I understand that if my offer is accepted by Madison, (i) payment by
Madison for the Units transferred hereby will be made by check mailed to me
or my Custodian, subject to the terms of this Agreement of Assignment and
Transfer, once the confirmation of transfer of the Units is received by
Madison from the Partnership and the effective date of such transfer has
passed, and (ii) in certain cases, payment will be made by Madison 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 Madison
receives confirmation from the Partnership of the transfer of the Units to
Madison. I hereby agree that Madison 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.
8. TERMINATION
I hereby understand and agree that Madison 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 the event of a change in any of
the financial or procedural considerations taken into account by Madison in
accepting the Offer. If Madison does terminate this Agreement of Assignment
and Transfer, I understand that (i) Madison shall notify me promptly after
such termination and return the Units to me or my Custodian, and (ii)
Madison 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
this form is my correct Social Security Number or Taxpayer Identification
Number and (ii) I am not subject to backup withholding because: (a) I am
exempt from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (the "IRS") that I am subject to backup
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
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 Madison and that any
false statements herein could be punishable by fine, imprisonment, or both.
10. ASSIGNMENT AND DISCLAIMER
I understand and agree that Madison, may without my consent, assign all or
some of its rights and delegate all or some of its duties pursuant to this
Agreement of Assignment and Transfer to an affiliate. I hereby disclaim any
contractual or other legal relationship with Windy City Investments, LLC,
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 Madison.
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, subject to the General Partner's rights, to Madison
all rights and interests, as set forth herein, in the partnership below and
for Madison to succeed to such interest as a substitute limited partner,
successor in interest or assignee.
FULL NAME OF PARTNERSHIP: Westin Hotels Limited Partnership
QUANTITY You desire to sell: ____________
PARTNERSHIP ID INFORMATION CERTIFICATE INFORMATION
CUSIP#: Was a certificate issued to you? Circle One: Yes No
Partnership Tax ID#: If yes, did you include 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, address of beneficial owner should be
your address.
Partnership Interests are currently registered as follows:
SendTo 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 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 Madison as my true and lawful
agent and attorney-in-fact with respect to the Units, with full power of
substitution. Must be signed by the registered holder(s) exactly as name(s)
appear(s) on the Partnership records. Persons who sign as a representative
or other fiduciary capacity must indicate their capacity when signing and
must present satisfactory evidence of their authority to so act.
Your Signature ________________________________________________ Medallion Signature Guarantee:
Date _____________________
Co-Transferor's Signature _______________________________________ Medallion Signature Guarantee:
Date ______________________ (if applicable)
Custodian's Signature _________________________________________ Medallion Signature Guarantee:
Date ______________________ (if applicable)
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): ________________________________
AGREED TO AND ACCEPTED:
By: ______________________________________ TA#
Unit Price: Trade Date: Account Executive:
