Exhibit (a)(2)
NO. 96-CI-08327
A. R. MILKES AND D. R. BURKLEW, ss. IN THE DISTRICT COURT
on behalf of themselves and all other ss.
limited partners of Courtyard by ss.
Marriott II Limited Partnership ss.
ss.
v. ss.
ss.
HOST MARRIOTT CORPORATION, ss.
MARRIOTT INTERNATIONAL, INC. ss. OF BEXAR COUNTY, TEXAS
CBM TWO CORPORATION, ss.
COURTYARD MANAGEMENT ss.
CORPORATION, HOST ss.
INTERNATIONAL INC., ss.
STEPHEN RUSHMORE and ss.
HOSPITALITY VALUATION ss.
SERVICES, INC. ss. 285th JUDICIAL DISTRICT
CBM II LP PROOF OF CLAIM, ASSIGNMENT AND RELEASE
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TO: All persons who were named as Plaintiffs in this case and/or who were
members of the Class certified on January 31, 1998 and who thereafter
sold their limited partnership units in Courtyard by Marriott II
Limited Partnership ("CBM II LP") but did not assign their litigation
claims, and all holders of limited partnership units in CBM II LP as of
March 9, 2000, excluding the Equity Intervenors, the Palm Intervenors,
and the Marriott Defendants and Insiders (the "CBM II LP Class"). The
CBM II LP Class includes the heirs, executors, administrators,
successors and assigns of the members of the CBM II LP Class (the "CBM
II LP Class Members").
ALL PERSONS OR ENTITIES MAKING A CLAIM ("CLAIMANTS") HEREIN ARE URGED
TO READ THE NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION AND SETTLEMENT HEARING
(THE "NOTICE") ACCOMPANYING THIS PROOF OF CLAIM, ASSIGNMENT AND RELEASE (THE
"PROOF OF CLAIM"), THE CBM II LP PURCHASE OFFER AND CONSENT SOLICITATION (THE
"PURCHASE OFFER AND CONSENT SOLICITATION") AND THE CBM II LP CONSENT FORM (THE
"CONSENT FORM"), ALL OF WHICH CONTAIN IMPORTANT INFORMATION REGARDING THE
PROPOSED SETTLEMENT DESCRIBED IN THE NOTICE (THE "SETTLEMENT") AND HOW CBM II LP
CLASS MEMBERS ARE AFFECTED. CLASS COUNSEL FURTHER URGES THAT YOU READ THE TAX
SUMMARY FURNISHED BY SPECIAL TAX COUNSEL, CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS
AND MARTIN, TO CBM II LP CLASS MEMBERS.
THE SETTLEMENT OF THE MILKES LITIGATION (AS DEFINED HEREIN) ACCORDING
TO THE TERMS SET FORTH IN THE SETTLEMENT AGREEMENT DESCRIBED IN THE PURCHASE
OFFER AND CONSENT SOLICITATION (THE
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"SETTLEMENT AGREEMENT") WILL RESULT IN CERTAIN TAX CONSEQUENCES FOR EACH CBM II
LP CLASS MEMBER. EACH CBM II LP CLASS MEMBER IS THEREFORE URGED TO READ THE
"FEDERAL INCOME TAX CONSIDERATIONS" SECTION CONTAINED IN THE PURCHASE OFFER AND
CONSENT SOLICITATION AND TO CONSULT HIS/HER OWN TAX ADVISOR WITH RESPECT TO THE
TAX CONSEQUENCES OF THE SETTLEMENT TO SUCH CBM II LP CLASS MEMBER.
IN ORDER TO FACILITATE THE ORDERLY AND PROMPT PROCESSING OF CLAIMS AND
THE DISTRIBUTION OF THE SETTLEMENT AMOUNT TO CBM II LP CLASS MEMBERS, YOU MUST
COMPLETE AND SIGN THIS PROOF OF CLAIM AND MAIL IT BY FIRST CLASS MAIL, POSTAGE
PREPAID, TO THE CLAIMS ADMINISTRATOR, GEMISYS, AT THE FOLLOWING ADDRESS:
GEMISYS
Attention: Marriott Hotel Limited Partnership Litigation
7103 South Revere Parkway
Englewood, Colorado 80112
YOUR EXECUTED PROOF OF CLAIM AND CONSENT FORM MUST BE RECEIVED BY GEMISYS NO
LATER THAN _________, 2000, UNLESS THE PURCHASE OFFER DESCRIBED IN THE PURCHASE
OFFER AND CONSENT SOLICITATION (THE "PURCHASER OFFER") IS EXTENDED (AS SO
EXTENDED, THE "EXPIRATION DATE").
A pre-addressed stamped envelope has been provided for your use to return this
Proof of Claim, along with your completed YELLOW Consent Form, to the above
address.
YOUR FAILURE TO DELIVER THIS PROOF OF CLAIM BY THE EXPIRATION DATE MAY
PRECLUDE YOU FROM PARTICIPATING IN ANY RECOVERY IN THIS ACTION, BUT YOU WILL
NONETHELESS BE BOUND BY ANY ORDERS AND JUDGMENTS ENTERED IN THIS CASE UNLESS YOU
"OPT-OUT" OF THE SETTLEMENT BY FOLLOWING THE PROCEDURES SET FORTH IN THE NOTICE.
IN ADDITION, YOUR FAILURE TO DELIVER THE CONSENT FORM MAY RESULT IN THE
SETTLEMENT NOT BEING APPROVED.
ALL TERMS NOT OTHERWISE DEFINED HEREIN HAVE THE MEANINGS ASSIGNED TO THEM IN THE
SETTLEMENT AGREEMENT.
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PLEASE TYPE OR PRINT THE INFORMATION REQUESTED HEREIN
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ALL INSTRUCTIONS ACCOMPANYING THIS PROOF OF CLAIM SHOULD BE READ CAREFULLY
BEFORE THIS PROOF OF CLAIM IS COMPLETED
I. IDENTIFY YOUR OWNERSHIP INTEREST IN CBM II LP:
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_____ Individual Claimant: I am acting in my own interest as an owner of a unit of limited
partnership interest in CBM II LP (a "Unit"), half-Unit or other fractional Unit.
_____ Joint Claimant: We are claimants jointly. (All joint owners must complete and sign this
form if the Unit, half-Unit or other fractional Unit is jointly owned).
_____ Partnership Claimant: I am authorized to make this claim on behalf of the Partnership.
_____ Corporate Claimant: I am authorized to make this claim on behalf of the Corporation.
_____ Decedent's Estate Claimant: I am the executor or administrator of the estate of ____________
(deceased) whose last address was ________. (Attach a copy of the proof of current
authority to act. See Instruction 4).
_____ Custodial or Guardian Claimant: I am the custodian or guardian for _____ whose address is
__________, __________. (Attach a copy of proof of the current authority to act. See
Instruction 4).
_____ Broker, Agent, Fiduciary or Attorney: I am a broker, agent, fiduciary or attorney for
claimant. (Attach a power of attorney or copy of other proof of current authority to act.
See Instruction 4).
_____ Trustee: I am a Trustee for Claimant. (Attach a power of attorney or copy of other proof of
current authority to act as a Trustee. See Instruction 4).
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II. DESCRIPTION OF UNITS TENDERED:
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Name(s) and Address(es) of Registered Holder(s) Number of Units Tendered
(Please fill in, if blank, exactly as name(s) appear(s) (Attach additional list, if necessary)
on transfer books of CBM II LP)
- ------------------------------------------------------------ ---------------------------------------------------------
Total Number Number of Units
of Units Owned Tendered
- ------------------------------------------------------------ ---------------------------- ----------------------------
- ------------------------------------------------------------ ---------------------------- ----------------------------
- ------------------------------------------------------------ ---------------------------- ----------------------------
- ------------------------------------------------------------ ---------------------------- ----------------------------
- ------------------------------------------------------------ ---------------------------- ----------------------------
- ------------------------------------------------------------ ---------------------------- ----------------------------
- ------------------------------------------------------------ ---------------------------- ----------------------------
III. OWNERSHIP INTEREST IN CBM II LP:
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Claimant(s) owns(s): _________________________________ Units(s).
IV. SUBMISSION TO JURISDICTION OF THE COURT:
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By submitting this Proof of Claim, I state that I believe in good faith
that I am a CBM II LP Class Member as defined in the Notice, or am authorized to
act for such person or entity; and that I desire to participate in the
Settlement described in the Notice and believe that I am entitled to do so.
I, and the person or entity I represent, if any, understand that I am
subject to the jurisdiction of the 285th Judicial District Court of Bexar
County, Texas, for purposes of this claim, and will be bound by and subject to
the judgments and orders of the Court in the action styled: A.R. Milkes and D.R.
Burklew, et al v. Marriott International, Inc., et al. (the "Milkes
Litigation"), and will furnish additional information or proof with respect to
this Proof of Claim if required to do so.
I have read and understand the contents of the Notice and the Purchase
Offer and Consent Solicitation Statement accompanying this Proof of Claim, and
further understand that reference is made in this Proof of Claim to the Notice
and the Purchase Offer and Consent Solicitation for the matters described and
the terms defined therein. I further agree and understand that if the Settlement
is approved by the Court and becomes effective, all claims against the Released
Persons (as defined herein) which have been or could have been asserted by me or
on my behalf relating to the subject matter of the Milkes Litigation will be
satisfied, discharged, and extinguished forever.
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V. ASSIGNMENT OF UNITS TO THE PURCHASER:
------------------------------------
By my signature hereto, the undersigned holder of Unit(s) in CBM II LP
(hereinafter, a "Unitholder"), as part of the Settlement and for other good and
valuable consideration, hereby assign(s), transfer(s) and convey(s) all my/our
Unit(s) in CBM II LP, together with all right, title and interest to such
Unit(s), to CBM II Holdings LLC (the "Purchaser") or its designee. The
undersigned hereby irrevocably constitute(s) and appoints(s) CBM Two LLC, the
General Partner of CBM II LP, as my/our attorney in fact to transfer said
Unit(s) with full power of substitution in the premises. This assignment will
become effective when the Judgment Order approving the Settlement becomes Final.
VI. REPRESENTATIONS AND WARRANTIES:
------------------------------
The undersigned hereby irrevocably appoints designees of the Purchaser
as the attorneys and proxies of the undersigned, each with full power of
substitution, to exercise all voting and other rights of the undersigned in such
manner as each such attorney and proxy or his substitute shall in his sole
discretion deem proper, each with full power of substitution, to the full extent
of the undersigned's rights with respect to the Units tendered by the
undersigned and accepted for payment by the Purchaser and with respect to any
and all other Units or other securities or rights issued or issuable in respect
of such Units on or after the date of this Proof of Claim. All such proxies
shall be considered coupled with an interest in the tendered Units. This
appointment will become effective when the Judgment Order rendered by the Court
becomes Final. Upon such acceptance for payment, all prior proxies given by the
undersigned with respect to such Units or other securities or rights will,
without further action, be revoked, and no subsequent proxies may be given (and,
if given, will not be deemed effective) by the undersigned. The designees of the
Purchaser will, with respect to such Units and other securities or rights, be
empowered to exercise all voting and other rights of the undersigned as the
designees, in their sole discretion, may deem proper at any annual, special or
adjourned meeting of the Unitholders, by written consent in lieu of any such
meeting or otherwise. The Purchaser reserves the right to require that, in order
for Units to be deemed validly tendered, immediately after the Judgment Order
rendered by the Court becomes Final, upon the Purchaser's acceptance for payment
of such Units, the Purchaser must be able to exercise full voting and other
rights with respect to such Units and other securities or rights including
voting at any meeting of Unitholders then scheduled or acting by written
consent. In addition, by executing this Proof of Claim, the undersigned agrees
promptly to remit and transfer to GEMISYS for the account of the Purchaser any
and all cash dividends, distributions, rights, other Units and other securities
issued or issuable in respect thereof on or after the date that the Court
renders a Judgment Order (assuming there is no appeal of the Judgment Order) or,
in the event of an appeal, the date that the Judgment Order becomes Final,
accompanied by appropriate documentation of transfer. The undersigned further
acknowledges and agrees that pending such remittance or appropriate assurance
thereof, the Purchaser shall be entitled to all rights and privileges as owner
of any such other Units or other securities or property and may withhold the
entire purchase price or deduct from the purchase price the amount or value
thereof, as determined by the Purchaser in its sole discretion.
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The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Units tendered
hereby (and any and all other Units or other securities issued or issuable in
respect thereof on or after _____________, 2000) and that when the same are
accepted for payment by the Purchaser, the Purchaser will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claims. The undersigned will,
upon request, execute and deliver any additional documents deemed by GEMISYS or
the Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the Units tendered hereby (and all such other Units or securities).
All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned, and any obligation of the
undersigned hereunder shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned. Except as stated in the Purchase
Offer and Consent Solicitation, this tender is irrevocable.
The undersigned understands that tenders of Units pursuant to any one
of the procedures described in the Purchase Offer and Consent Solicitation under
the heading "The Purchase Offer--Procedures for Accepting the Purchase Offer and
Tendering Units" and in the instructions hereto will constitute an agreement
between the undersigned and the Purchaser upon the terms and subject to the
conditions of the Purchase Offer and Consent Solicitation.
The check for the purchase price of all Units purchased will be issued
in the name(s) of the registered holder(s) appearing above under "Description of
Units Tendered." Unless otherwise indicated, the check for the purchase price of
all Units purchased (and accompanying documents, as appropriate) will be mailed
to the address(es) of the registered holder(s) appearing above under
"Description of Units Tendered." The undersigned recognizes that the Purchaser
has no obligation to transfer any Units from the name of the registered
holder(s) thereof.
VII. RELEASE:
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My signature hereto constitutes a full and complete release,
relinquishment and discharge by me, or if I am submitting this Proof of Claim on
behalf of a corporation, a partnership, estate, trust, or one or more other
persons or entities, by it, him, her or them, and by my, its, his, hers or their
trustees, shareholders, parents, affiliates, subsidiaries, general or limited
partners, and the respective executors, administrators, predecessors,
successors, affiliates and assigns of any of the above-referenced persons or
entities, of:
(i) each and all of the Defendants in the Milkes Litigation, namely Host
Marriott Corporation, Marriott International, Inc., CBM Two LLC (successor by
merger to CBM Two Corporation), Host International, Inc., Courtyard by Marriott
II Limited Partnership, Courtyard Management Corporation and J.W. Marriott, Jr.,
together with their predecessors, successors, parents, subsidiaries, divisions,
affiliates and related entities (collectively, the "Defendants"); (ii) each of
the Defendants' respective past or present directors, officers, employees,
partners, members, principals, trustees, agents, servants, appraisers,
including, but not limited to, Stephen Rushmore and Hospitality Valuation
Services, Inc., underwriters, issuers, shareholders, insurers, co-insurers,
reinsurers, independent contractors, controlling shareholders, wholesalers,
resellers,
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distributors, retailers, attorneys, accountants, auditors, consultants,
investment bankers, advisors, personal representatives, affiliates,
predecessors, successors, parents, subsidiaries, divisions, assigns, spouses,
heirs, executors, administrators, associates, and related or affiliated
entities; and (iii) any members of any the foregoing persons' immediate
families, or any trust of which any of the foregoing persons is the settlor or
which is for the benefit of any of the foregoing persons and/or member(s) of his
or her family (collectively, the "Released Persons") from:
(A) any and all past, present, existing, future, pending or threatened,
suspected or unsuspected, class, derivative, representative and individual
claims, rights, demands, assertions, actions, causes of action, litigation,
lawsuits, allegations, debts, liens, accounts, dues, sums of money, reckonings,
bonds, bills, specialties, contracts, covenants, agreements, controversies,
promises, cross-actions, liabilities, trespasses, obligations, losses, damages,
costs, expenses, judgments, executions, remedies and suits, of every kind and
nature whatsoever; whether in contract or in tort; whether at law or in equity;
whether based upon fraud, breach of contract, misrepresentation, negligent
misrepresentation, negligence, gross negligence, intentional conduct, libel,
slander, business disparagement, oppression, civil conspiracy, deceit, tortious
interference, all other business torts, breach of the duty of good faith and
fair dealing, breach of fiduciary duty, or any other duty or claim under common
law or statute of any nature or jurisdiction, including, without limitation, the
DECLARATORY JUDGMENT ACT, the TEXAS FREE ENTERPRISE & ANTITRUST ACT OF 1983,
TEX. BUS. & COM. CODE SS. 15.01, ET SEQ., the TEXAS BUSINESS CORPORATION ACT,
the TEXAS PARTNERSHIP ACT, the TEXAS LIMITED PARTNERSHIP ACT, the DELAWARE
REVISED UNIFORM LIMITED PARTNERSHIP ACT, THE SECURITIES ACT OF 1933, 15 U.S.C.A.
SS.SS. 77k, 77o; and the SECURITIES EXCHANGE ACT OF 1934, 15 U.S.C.A. SS.SS.
78b, 78t, 17 C.F.R. SS. 240.10b-5; whether arising under or out of any sale,
purchase, offer, tender, contract, agreement, conspiracy, combination,
communication, meeting, joint or concerted action; or whether arising under or
by virtue of any statute or regulation that now exists or may be created or
recognized in the future in any manner, including without limitation, by
statute, regulation or judicial decision, including without limitation, all
claims arising under or by virtue of the federal and/or state securities laws;
together with all past, present, existing, future, liquidated or unliquidated,
fixed or contingent, known or unknown, suspected or unsuspected, pending or
threatened injuries, damages, losses, costs, expenses and remedies of every kind
and nature, including, but not limited to, actual damages; all exemplary and
punitive damages; all penalties of any kind, including but not limited to tax
liabilities or penalties; all statutory damages; all property and economic
damages; all damages to loss of individual or business reputation, loss of
business, loss of company, loss of assets, diminution in assets or investments,
loss of standard of living, lost profits and goodwill; all consequential
damages; all mental anguish and other similar emotional and psychological
damages, including loss of society, affection, consortium, enjoyment and the
like, and all other personal injury damages; together with all prejudgment and
postjudgment interest, costs and attorneys' fees; whether heretofore or
hereafter accruing (all collectively, the "Claims"); known or unknown, whether
each of which directly or indirectly arise out of, in connection with, or are
attributable to, for, or related to: (1) the purchase and/or sale of the
Unit(s); (2) the operation, property management and/or asset management of the
Courtyard by Marriott Hotels owned by CBM II LP, as described more fully in the
CBM II LP Private Placement Memorandum (the "Hotels"), and the formation,
operation, administration and/or reporting of CBM II LP, including, but not
limited to, the calculation and payment of all partner and partnership
distributions or the failure to do same; the calculation and
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payment of all returns, including the priority return, or the failure to do
same; the calculation and use of all FF&E funds; the results of operations of
CBM II LP or the Hotels; the improvements and/or lack thereof of the Hotels; the
use, administration, management, or operations of CBM II LP and/or any Hotel;
the use of cash derived from the management or operations of CBM II LP and/or
any Hotel; any borrowings or failure(s) to borrow or refinance and/or to
distribute proceeds from same; any property management agreement; any guarantee
agreement; and any publication or disclosure, report, statement or notice, or
the failure to give same, concerning CBM II LP or the Hotels; (3) the conduct,
facts, circumstances, matters, causes, communications, agreements, meetings,
approvals, purchases, occurrences, transactions, and/or allegations asserted,
relied upon or referred to, or which could have been asserted, relied upon, or
alleged in the Litigation arising out of the transactions or occurrences that
are the subject matter of the Milkes Litigation; (4) any matter or thing done,
omitted or suffered to be done relating to CBM II LP and/or the Hotels arising
out of the transactions or occurrences that are the subject of the Milkes
Litigation; (5) any matter that has been brought or that could have been brought
before or in any court, tribunal, or forum, in this or any other jurisdiction,
in these United States or anywhere else, specifically including but not limited
to, any claims which were or could have been asserted in the Milkes Litigation
arising out of the transactions or occurrences that are the subject matter of
the Milkes Litigation; (6) the resolution of the Milkes Litigation, including
but not limited to, all claims, demands, and causes of action which now exist or
may arise in the future by virtue of any assignment or otherwise, arising out of
the manner in which the Released Persons, or any other representative of the
Released Persons, handled, settled, or defended any claims, demands, or causes
of action asserted in the Milkes Litigation; and (7) the provisions, rights, and
benefits of Section 1542 of the California Civil Code and any and all
provisions, rights and benefits conferred by any law of any state or territory
of the United States, or any principle of common law, which is similar,
comparable or equivalent to Section 1542 of the California Civil Code; and
(B) all known Claims as of the date the Release is executed arising
from or relating to the purchase, sale, real estate investment trust or other
conversion, assignment, holding, operation, performance of, or investment in
each and all of the Defendants and their respective predecessors and successors,
and their respective present or former parents, subsidiaries or affiliates (all
Claims referred to in this Section VII are herein collectively referred to as
the "Released Claims").
Nothing in this Release is intended to release, waive, or alter the
ability of any settling party to assert any claim arising under the Settlement
Agreement.
VIII. DOCUMENTATION REQUIRED:
----------------------
A. The information contained in this Proof of Claim is subject to
verification. You must cooperate in any such verification process.
B. If you are signing this Proof of Claim in a representative capacity, you
must submit proof of your current authority to act for the CBM II LP Class
member in such capacity.
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C. To prevent federal income tax withholding on the amounts payable to you
pursuant to the Settlement, you are required to complete, execute and return
with this Proof of Claim the Certificate of Non-Foreign Status attached hereto
as part of Annex A.
IX. CERTIFICATION UNDER PENALTY OF PERJURY:
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Each Claimant signing this Proof of Claim represents that such Claimant
is authorized to execute and deliver this Proof of Claim and is not a person or
entity excluded from the CBM II LP Class as defined in the Notice.
I (we) declare under the penalties of perjury that I am (we are) the
Claimant(s), or that I am (we are) authorized in writing to make this claim on
behalf of Claimant(s). I (we) also declare under the penalties of perjury that
all the information provided herein is true, complete and correct. I (we)
further declare, under the penalties of perjury, that this Proof of Claim was
executed by me (us) as my (our) free and voluntary act and deed, after having it
fully explained to me and/or after having read it, the Notice, the Purchase
Offer and Consent Solicitation and the Consent Form completely and having fully
understood their contents, and after realizing the effect to be a full and final
release and discharge of the Released Persons from the Released Claims, and a
complete and total assignment and transfer of the Units I (we) own in CBM II LP
to the Purchaser or its designee; that I (we) have entered into this Proof of
Claim relying solely on my own independent analysis, beliefs and judgment, that
I (we) expressly waive, disclaim, abandon and relinquish any reliance (actual,
perceived or otherwise) on any Defendant, and that I (we) assume the full risk
of discovery of any facts, legal issues, events or allegations of any type, and
that this Proof of Claim was executed by me (us) without any threat, force,
duress, or reliance upon any representation of any kind made by any person
whomsoever, except as set forth herein and in the Notice.
EVEN IF YOU FAIL TO TIMELY SUBMIT A PROOF OF CLAIM, YOU WILL BE BOUND
BY ANY ORDERS AND JUDGMENTS ENTERED IN THIS CASE, UNLESS YOU ELECT TO "OPT OUT"
OF THE SETTLEMENT. BY VIRTUE OF THE ORDERS AND JUDGMENTS ENTERED IN THIS CASE
YOU WILL ALSO BE DEEMED TO HAVE RELEASED THE RELEASED CLAIMS AGAINST THE
RELEASED PERSONS AND TO HAVE ASSIGNED, TRANSFERRED AND CONVEYED TO THE PURCHASER
OR ITS DESIGNEE YOUR UNIT(S).
[ATTACH LABEL HERE]
(leave adequate space for label)
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PLEASE SIGN THIS DOCUMENT IN THE MANNER YOUR NAME(S) APPEAR(S) ON THE LABEL
AFFIXED ABOVE.
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IMPORTANT
UNITHOLDER: SIGN HERE AND COMPLETE THE CERTIFICATE
OF NON-FOREIGN STATUS IN ANNEX A
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Signature(s) of Owner(s)
Dated: ______________, 2000
Name(s):______________________________________________________________________
(PLEASE TYPE OR PRINT)
Capacity (full title):__________________________________________________________
(See Instruction 4)
Address:______________________________________________________________________
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(Include Zip Code)
Daytime Area Code and
Telephone Number: _____________________________________________________________
Taxpayer Identification Number:_________________________________________________
(Must be signed by registered holder(s) or person(s) authorized to become
registered holder(s) by certificates and documents transmitted herewith. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
agent, officer of a corporation or other person acting in a fiduciary or
representative capacity, please set forth full title and see Instruction 4.)
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Purchase Offer and Consent
Solicitation
1. Requirements of Tender. This Proof of Claim (or a facsimile hereof),
----------------------
properly completed and duly executed, with any required signature guarantees and
any other documents required by this Proof of Claim, must be received by GEMISYS
at its address set forth herein on or prior to the Expiration Date.
The method of delivery of this Proof of Claim and all other required
documents is at the option and sole risk of the tendering Unitholder and the
delivery will be deemed made only when actually received by GEMISYS. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
No alternative, conditional or contingent tenders will be accepted and no
fractional Units, other than half-Units previously issued and outstanding, will
be purchased. All tendering Unitholders, by execution of this Proof of Claim (or
a facsimile thereof), waive any right to receive any notice of the acceptance of
their Units for payment.
2. Inadequate Space. If the space provided herein under "Description of
----------------
Units Tendered" is inadequate, the number of Units should be listed on a
separate signed schedule attached hereto.
3. Partial Tenders. If fewer than all the Units held by a Unitholder are to
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be tendered hereby, fill in the number of Units which are to be tendered in the
box entitled "Number of Units Tendered" as appropriate.
4. Signatures on Proof of Claim and Endorsements. If this Proof of Claim is
---------------------------------------------
signed by the registered holder(s) of the Units tendered hereby, the
signature(s) must correspond with the name(s) as written on the transfer books
of the Partnership without any change whatsoever.
If any of the Units tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Proof of Claim.
If any of the tendered Units are registered in different names, it will be
necessary to complete, sign and submit as many separate Proofs of Claim as there
are different registrations.
If this Proof of Claim is signed by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person should so indicate when
signing, and proper evidence satisfactory to the Purchaser of such person's
authority so to act must be submitted.
5. Transfer Taxes. Except as set forth in this Instruction 5, the Purchaser
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will pay or cause to be paid any transfer taxes with respect to the transfer and
sale of purchased Units to it or its order, pursuant to the Purchase Offer. If,
however, payment of the purchase price is to be made to, or if tendered Units
are registered in the name of, any person other than the person(s) signing this
Proof of Claim, the amount of any transfer taxes (whether imposed on the
registered holder(s) or such person) payable on account of the transfer to such
person will be deducted from
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the purchase price unless satisfactory evidence of the payment of such taxes or
exemption therefrom is submitted.
6. Requests for Assistance or Additional Copies. You may direct
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questions and requests for assistance relating to the completion of this Proof
of Claim to GEMISYS, Inc., telephone number (800) 955-0245. Requests for
additional copies of the Purchase Offer and Consent Solicitation, this Proof of
Claim and other related materials may be directed to GEMISYS, Inc. or brokers,
dealers, commercial banks and trust companies and such materials will be
furnished at the Purchaser's expense. You are encouraged to call David Berg or
Jim Moriarty, counsel to the class action plaintiffs, if you have questions
regarding the terms of the Settlement. Mr. Berg's telephone number is (713)
529-5622 and Mr. Moriarty's telephone number is (713) 528-0700.
7. Waiver of Conditions. Certain of the conditions of the Purchase
--------------------
Offer may be waived by the Purchaser, in whole or in part, to the extent set
forth in the Purchase Offer and Consent Solicitation.
8. Certification Regarding Non-Foreign Status. To comply with the
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Foreign Investment in U.S. Real Property Act of 1980 ("FIRPTA"), ten percent
(10%) of the amount realized by you with regard to the disposition of your Units
pursuant to the Settlement may be required to be withheld unless you complete,
execute and return to GEMISYS the appropriate Certificate of Non-Foreign Status
(depending on whether you are an individual or an entity) included in this Proof
of Claim. Because uncertainty exists as to the correct allocation of the amount
received by a CBM II LP Class Member who does not affirmatively "opt out" of the
Settlement between the amount received in settlement of the Milkes Litigation
and the amount received in exchange for the CBM II LP Class Member's Units,
solely for purposes of determining any amounts required to be withheld, the
"amount realized" by such a CBM II LP Class Member will be treated as the sum of
(1) the amount of $147,959 per Unit (or a pro rata portion thereof) plus (2) the
CBM II LP Class Member's share of CBM II LP's nonrecourse liabilities
immediately prior to the disposition of his Units. The "amount realized" by a
CBM II LP Class Member who affirmatively "opts out" of the Settlement will be
treated as the sum of (a) the cash amount received for his Units pursuant to the
Settlement (which will be deemed to include any amount owed by the CBM II LP
Class Member on the original purchase price of his Units), plus (b) the CBM II
LP Class Member's share of CBM II LP's nonrecourse liabilities immediately prior
to the disposition of his Units.
Even if you do not return the rest of this Proof of Claim or even if
you affirmatively Opt-Out, you should still complete and return to GEMISYS the
Certificate of Non-Foreign Status to avoid the application of withholding to
payments made to you pursuant to the Settlement. Please review the enclosed
guidelines regarding taxpayer identification number for information regarding
the correct taxpayer identification number to use.
IMPORTANT: THIS PROOF OF CLAIM (OR FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED, TOGETHER WITH ANY REQUIRED CERTIFICATES AND ALL
OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY GEMISYS, ON OR PRIOR TO THE
EXPIRATION DATE.
12
ANNEX A
COURTYARD BY MARRIOTT LIMITED PARTNERSHIP
CERTIFICATE OF NON-FOREIGN STATUS
for Individuals
To inform you that withholding of tax is not required under Section
1445 of the Internal Revenue Code upon amounts received by me in connection with
the purchase by the Purchaser of outstanding units of limited partnership
interest ("Units") in Courtyard by Marriott II Limited Partnership ("CBM II LP")
or the acquisition of Units pursuant to the merger of CBM II Acquisition L.P.,
an affiliate of the Purchaser, with and into CBM II LP, with CBM II LP
surviving, in connection with the settlement of certain claims described in that
certain Settlement Agreement, dated as of March 9, 2000 (the "Settlement
Agreement"), I, the undersigned, hereby certify the following:
1. I am not a nonresident alien for purposes of U.S. income taxation;
2. My U.S. taxpayer identifying number (Social Security Number) is:
; and
-------------------------
3. My current home address is as follows:
-----------------------------------
---------------------------------------------------------------------------
I hereby agree that if I become a nonresident alien prior to the date that
I receive any payment in respect of the Settlement Agreement, (i) I will notify
GEMISYS, at 7103 South Revere Parkway, Englewood, Colorado 80112 (Attention:
Marriott Hotel Limited Partnership Litigation), and (ii) I hereby authorize the
withholding of ten percent (10%) of the "amount realized" (as such term is
defined in Section 1001 of the Internal Revenue Code) by me in connection with
the Settlement Agreement. I understand that this certification may be disclosed
to the Internal Revenue Service and that any false statement I have made here
could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete.
SIGNATURE _______________________ DATE____________
PRINT NAME ______________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN WITHHOLDING OF 10
PERCENT OF THE AMOUNT REALIZED BY YOU IN CONNECTION WITH THE SETTLEMENT. PLEASE
REVIEW THE ENCLOSED GUIDELINES REGARDING TAXPAYER IDENTIFICATION NUMBER FOR
ADDITIONAL DETAILS.
13
COURTYARD BY MARRIOTT LIMITED PARTNERSHIP
CERTIFICATE OF NON-FOREIGN STATUS
for Entities
To inform you that withholding of tax is not required under Section
1445 of the Internal Revenue Code upon amounts received by
______________________________ in connection with the purchase by the Purchaser
of outstanding units of limited partnership interest ("Units") in Courtyard by
Marriott II Limited Partnership ("CBM II LP") or the acquisition of Units
pursuant to the merger of CBM II Acquisition L.P., an affiliate of the
Purchaser, with and into CBM II LP, with CBM II LP surviving, in connection with
the settlement of certain claims described in that certain Settlement Agreement,
dated as of March 9, 2000 (the "Settlement Agreement"), the undersigned hereby
certifies the following on behalf of .
1. 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);
2. 's U.S. employer identifying number
------------------------------
is ; and
--------------------------------
3. 's office address is:
------------------------------
-----------------------------------------------------------------.
_________________________ hereby agrees that if ___________________________
becomes a foreign person prior to the date any payment in respect of the
Settlement Agreement is received by _________________________, (i)
__________________________ will notify GEMISYS, at 7103 South Revere Parkway,
Englewood, Colorado 80112 (Attention: Marriott Hotel Limited Partnership
Litigation), and (ii) _________________________________ hereby authorizes the
withholding of ten percent (10%) of the "amount realized" (as such term is
defined in Section 1001 of the Internal Revenue Code) by
_________________________________ in connection with the Settlement Agreement.
understands that this certification may be disclosed to the Internal
Revenue Service and that any false statement made here could be punished by
fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of ________________________________.
SIGNATURE __________________________________ DATE _____________
PRINT NAME _________________________________
TITLE ________________________________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 10 PERCENT OF THE AMOUNT REALIZED BY YOU IN CONNECTION WITH THE SETTLEMENT.
PLEASE REVIEW THE ENCLOSED GUIDELINES REGARDING TAXPAYER IDENTIFICATION NUMBER
FOR ADDITIONAL DETAILS.