EXHIBIT (a)(2)
AGREEMENT OF ASSIGNMENT AND TRANSFER
FOR UNITS OF BENEFICIAL ASSIGNMENT CERTIFICATES
OF
CAPITAL SOURCE II L.P.-A
Please make any corrections to name/mailing address in space above.
I hereby tender to Madison Liquidity Investors 104, LLC, a Delaware
limited liability company (the "Purchaser"), the number of Units of
Beneficial Assignment Certificates set forth above (including any
and all other Units or other securities issued or issuable in
respect of such Unit on or after the date hereof) (collectively, the
"Units") in Capital Source II L.P.-A, a Delaware limited partnership
(the "Partnership"), for $5.00 per Unit in cash, without any
interest thereon, (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 May 13, 1999) in accordance with the terms and subject to the
conditions of Purchaser's Offer to Purchase attached as Exhibit
(a)(1) to Schedule 14D-1 dated May 13, 1999 (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, the proration period
(described further in Section 4 of the Offer to Purchase) and the
withdrawal rights (described further in Section 5 of the Offer to
Purchase) will remain open until 5:00 p.m. Eastern Standard Time on
June 17, 1999, subject to extension at the discretion of the
Purchaser (the "Termination Date"). 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 the Purchaser is
effective, subject to Section 4 ("Proration") and Section 5
("Withdrawal Rights") of the Offer to Purchase. The Offer is
subject to Section 13 ("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 the Purchaser, 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
May 13, 1999, 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 and whenever distributable or allocable to the
Units under the Partnership's limited partnership agreement (the
"Limited 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 partners of the
Partnership (collectively, the "General Partner"), and (ii) in the
event that the Purchaser 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 the
Purchaser to become a substituted limited partner of the Partnership.
It is my intention that the Purchaser and its designees, if any of
them so elects, succeed to my interest as a Substitute Limited
Partner, as defined in the Limited Partnership Agreement, in my
place with respect to the transferred Units. In the event this
Transfer shall not result, for any reason, in the substitution of
the Purchaser or its designee as a Substitute Limited Partner, this
Agreement of Assignment and Transfer shall serve as notice to the
General Partner of the assignment set forth herein. It is my
understanding, and I hereby acknowledge and agree, that the
Purchaser and its designees 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 May
13, 1999, 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 the Purchaser and its designees as provided
in the Limited Partnership Agreement, or in accordance with such
other lawful allocation methodology as may be agreed upon by the
Partnership and the Purchaser. 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 the Purchaser and its
designees as my true and lawful attorneys-in-fact and proxies, in
the manner set forth in the Agreement of Assignment and Transfer,
with respect to the Units tendered by me and accepted for payment by
the Purchaser (and with respect to any and all other Units or other
securities issued or issuable in respect of such Unit on or after
the May 13, 1999) each with full power of substitution, to the full
extent of my rights (such power of attorney and proxy being deemed
to be an irrevocable power coupled with an interest) (i) to seek to
transfer ownership of such Units on the Partnership's books (and to
execute and to deliver any accompanying evidences of transfer and
authenticity which the Purchaser, the Partnership or the General
Partner may deem necessary or appropriate in connection therewith,
including, without limitation, any documents or instruments required
to be executed under a "Transferor's (Seller's) Application for
Transfer" created by the NASD, if required), (ii) to become a
Substitute Limited Partner, (iii) to receive any and all
distributions made or declared by the Partnership after May 13,
1999, (iv) to receive all benefits and otherwise exercise all
rights of beneficial ownership of such Units in accordance with the
terms of the Offer, (v) to execute and deliver to the Partnership
and/or the General Partner (as the case may be) a change of address
form instructing the Partnership to send any and all future
distributions to which the Purchaser is entitled pursuant to the
terms of the Offer in respect of tendered Units to the address
specified in such form, (vi) to endorse any check payable to or upon
the order of me representing a distribution to which the Purchaser
is entitled pursuant to the terms of the Offer, in each case on my
behalf, in favor of the Purchaser or any other payee the Purchaser
otherwise designates, (vii) to exercise all of my voting and other
rights as any such attorney-in-fact in their sole discretion may
deem proper at any meeting of Unitholders or any adjournment or
postponement thereof, by written consent in lieu of any such meeting
or otherwise, (viii) to act in manner as any such attorney-in-fact
shall, in its sole discretion, deem proper with respect to the
Units, (ix) to execute a Loss and Indemnity Agreement relating to
the Units on my behalf I fail to include my original certificate(s)
(if any) representing the Units with this Agreement of Assignment
and Transfer, or (x) to commence any litigation that the Purchaser
or its designees, in their sole discretion, deem necessary to
enforce any exercise of the Purchaser's or such designees powers as
my attorneys-in-fact as set forth herein.
The Purchaser or its designees 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 the
Purchaser and its designees any distributions made by the
Partnership with respect to the Units on or after May 13, 1999. To
the extent that any distributions are made by the Partnership with
respect to the Units on or after May 13, 1999, which are received by
me, I agree to promptly pay over such distributions to the
Purchaser. I further agree to pay any costs incurred by the
Purchaser and its designees 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. All
prior powers of attorney and proxies granted by me with respect to
the Units (and such other Units or securities) are, without further
action, hereby revoked and no subsequent powers of attorney or
proxies may be given and no subsequent consent may be executed (and
if given or executed, will not be deemed effective.) The
appointment contained herein will be effective upon receipt by the
Purchaser of this Agreement of Assignment and Transfer.
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 the Purchaser or its designees, conditional solely
upon the Purchaser'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 the Purchaser that I (i) have
received and reviewed the Offer to Purchase, (ii) own the Units and
have full power and authority to validly sell, assign, transfer,
convey and deliver to the Purchaser and its designees the Units,
(iii) that effective when the Units are accepted for payment by the
Purchaser and its designees, I hereby convey to the Purchaser and
its designees, and the Purchaser and its designees 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, and (iv) this Transfer is made in accordance with all
applicable laws and regulations. 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.
By executing and returning the Agreement of Assignment and Transfer,
I hereby represent that either (a) the undesigned is not a plan
subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Code, or an
entity deemed to hold "plan assets" within the meaning of 29.C.F.R.
Section 2510.3-101 of any such plan; or (b) the tender and
acceptance of Units pursuant to the Offer will not result in a
nonexempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code.
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 the Purchaser and its designees to be necessary or desirable to
complete the assignment, transfer and purchase of the Units.
I recognize that, if proration is required pursuant to the terms of
the Offer, the Purchaser will accept for payment from among those
Units validly tendered on or prior to the Expiration Date and
properly withdrawn, the maximum number of Units permitted pursuant
to the Offer on a pro rata basis, with adjustments to avoid
purchases of certain fractional Units and purchases which would
violate the terms of the Offer or the Partnership's Limited
Partnership Agreement, based upon the number of Units validly
tendered prior to the Expiration Date and not properly withdrawn.
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.
By its placing its signature below, the Purchaser agrees to accept
all the terms and provisions of the Limited Partnership Agreement in
connection with and subject to the Transfer set forth herein,
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:_______________, 1999 _______________________________________
(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 or Your Telephone Signature of Co-Seller
Taxpayer Identification Number 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 of Assignment and Transfer 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 104, LLC
By:_______________________________________________________
