DAMSON / XXXXXXXX REALTY INCOME FUND II
AGREEMENT OF SALE
The undersigned Limited Partner (the "Seller") does hereby sell, assign,
transfer, convey and deliver (the "Sale") to Grape Investors, LLC, a Delaware
limited liability company ("Grape" or the "Purchaser"), all of the Seller's
right, title and interest in "Interests" (as defined in the Partnership
Agreement) of Damson / Xxxxxxxx Realty Income Fund II, a Delaware limited
partnership (the "Partnership") being sold pursuant to this Agreement of Sale
("Agreement") and the Offer dated April 21, 1998 (the "Offer") for a purchase
price of $2,350 for each .01 percent interest in the Partnership, less the
amount of any distributions declared or paid from any source by the Partnership
with respect to the Interests after February 28, 1998, without regard to the
record date or whether such distributions are classified as a return on, or a
return of, capital. Included in the definition of "Interests" are any proceeds
which any Seller may receive after February 28, 1998 from the settlement of any
class action lawsuit by the Limited Partners of the Partnership, which lawsuit
relates to the Partnership or its General Partner.
PAYMENT FOR SUCH PURCHASE WILL BE MADE WITHIN 10 BUSINESS DAYS FOLLOWING THE
"EXPIRATION DATE" SET FORTH IN THE OFFER, PROVIDED GRAPE HAS RECEIVED AND
ACCEPTED A PROPERLY COMPLETED AND DULY EXECUTED AGREEMENT OF SALE AND RECEIVED
ASSURANCES FROM THE GENERAL PARTNER THAT THE SELLER'S ADDRESS WILL BE CHANGED TO
THE PURCHASER'S ADDRESS PURSUANT TO THE TERMS AND CONDITIONS OF THE OFFER. IF
MORE THAN 5,000 INTERESTS ARE TENDERED TO GRAPE PRIOR TO GRAPE'S PAYMENT FOR
SUCH INTERESTS, GRAPE WILL ACCEPT UP TO 5,000 INTERESTS ON A PRO RATA BASIS WITH
APPROPRIATE ADJUSTMENTS AS GRAPE DEEMS NECESSARY.
The Seller hereby represents and warrants to the Purchaser that the Seller owns
such Interests and has full power and authority to validly sell, assign,
transfer, convey, and deliver to the Purchaser the Interests, and that when any
such Interests 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 Interests will not be subject to any adverse claim. The Seller 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 Interests.
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 Interests
under the Partnership's 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 Interests.
Seller, upon execution of this Agreement and the mailing of payment by the
Purchaser to Seller, hereby irrevocably constitutes and appoints Purchaser as
its true and lawful agent and attorney-in-fact with respect to Interests 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 assignment of the Interests
on the books of the Partnership that are maintained with respect to the
Interests 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 assignment of the Interests, (ii) vote or act in such
manner as any such attorney-in-fact shall, in its sole discretion, deem proper
with respect to the Interests, (iii) deliver the Interests and transfer
ownership of the Interests on the books of the Partnership that are maintained
with respect to the Interests 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
February 28, 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 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 distributions and amend the
books and records of the Partnership, including Seller's address and records, to
direct all distributions to Purchaser as of the effective date of this
Agreement. 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 FOR
PURPOSES OF MAILING DISTRIBUTIONS TO GRAPE 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 RELATING THEREIN TO BE
RECEIVED BY SELLER TO GRAPE INVESTORS, LLC TO THE ADDRESS SET FORTH IN (i)
ABOVE.
Seller does hereby release and discharge the General Partner and their officers,
shareholders, employees and agents from all actions, causes of actions, claims
or demands Seller has, or may have, against the General Partner that result from
the General Partner's reliance on this Agreement or any of the terms and
conditions contained herein. Seller does 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 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. THIS AGREEMENT IS IRREVOCABLE AND MAY NOT BE WITHDRAWN FOLLOWING
THE EXPIRATION DATE, BUT MAY BE WITHDRAWN PRIOR THERETO. 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 Interests.
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.
The undersigned recognizes that, if proration is required pursuant to the terms
of the Offer, the Purchaser will accept for payment from among those Interests
validly tendered on or prior to the Expiration Date and not properly withdrawn,
the maximum number of Interests permitted pursuant to the Offer on a pro rata
basis. The undersigned understands that a tender of Interests to the Purchaser
will constitute a binding agreement between the undersigned and the Purchaser
upon the terms and subject to the conditions of the Offer. The undersigned
recognizes that under certain circumstances
set forth in the Offer to Purchase, the Purchaser may not be required to accept
for payment any of the Interests tendered hereby. In such event, the undersigned
understands that any Agreement for Interests not accepted for payment will be
destroyed by the Purchaser.
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 Interests set forth below. By its own or its Authorized
Signatory's signature below, the Seller hereby assigns its entire right, title
and interest in the Interests to the Purchaser.
By executing this Agreement the Seller hereby acknowledges to the General
Partner that the Seller desires to assign the Seller's Interests referenced
herein and hereby directs the General Partner to take all such actions as are
necessary to accomplish such assignment, 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 assignment or 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 signature) (Medallion Guarantee for
EACH Seller's signature)
ACCEPTED:
Home Telephone Number PURCHASER/GRAPE INVESTORS, LLC
--------------
Office Telephone Number By: Its Manager, Xxxxx Capital,
LLC
--------------
Mailing Address
--------------
City, State, Zip Code By:
-------------- --------------------------------
State of Residence Authorized Representative
--------------
Social Security/Tax ID No.
--------------
Date YOU MUST MAIL EXECUTED ORIGINAL TO
PURCHASER:
$2,350.00 Sales Price for each .01 Grape Investors, LLC
-------------- percent interest 1650 Hotel Circle North,
in the Partnership Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
------ Percent Interest to be Sold OR
Check here if you wish to sell ALL of your Interests
PLEASE CALL US AT (000) 000-0000 IF YOU HAVE ANY QUESTIONS REGARDING THE SALE OF
YOUR INTERESTS.
INSTRUCTIONS TO COMPLETE AGREEMENT OF SALE
ALL SIGNATURES MUST BE MEDALLION GUARANTEED
BENEFICIAL OWNER OF RECORD SHOULD: DEATH
1. COMPLETE and SIGN Agreement. If any owner is
deceased,please enclose a
certified copy of Death
Certificate.
2. Have Signature Medallion Guaranteed
by your Bank or Broker. If Ownership is OTHER than
Joint Tenants With Right of
Survivorship, please
3. Indicate Number of Interests
Owned and/or To Be Sold. provide Letter of Testamentary
or Administration current
within 60 days
4. Return Agreement in Envelope Provided. showing your beneficial
ownership or executor capacity
(in addition to copy of Death
Certificate).
JOINT OWNERSHIP
Please have ALL owners of record CORPORATION
sign Agreement, and SEPARATELY Corporate resolution
Medallion Guarantee each signature. required showing authorized
signatory.
XXX/XXXXX TRUST, PROFIT SHARING OR PENSION PLAN
1. Beneficial owner must sign Please provide title, signature, and
Agreement. other applicable pages of Trust
Agreement
2. Provide Custodian information
(i.e. Name, Company Name,
showing authorized signatory.
Address, Phone No. and Account No.)
3. Grape will obtain the Medallion
Guarantee of Custodian Signature.
