Exhibit 6
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AGREEMENT
This Agreement (the "Agreement") is made and entered into as of the
22nd day of May, 1997, by and between The Krupp Corporation ("Krupp"), a
Massachusetts corporation with a principal place of business at 470 Atlantic
Avenue, Boston, Massachusetts 02210, and Gramercy Park Investments, LP
("Gramercy"), a Delaware limited partnership wit:h a principal place of business
at 400 Madison Avenue, Suite 804, New York, New York, 10017.
WITNESSETH:
WHEREAS, Gramercy is engaged in the business of investing in, among
other things, real estate limited partnerships;
WHEREAS, Krupp 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 "Krupp
Fund" and collectively, the "Krupp Funds");
WHEREAS, Gramercy has sought to obtain from Krupp lists of the
Investors in certain of the Krupp Funds for the stated purpose of contacting
such investors in order to attempt to acquire their units in the Krupp Funds;
WHEREAS, Krupp 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 Krupp Realty Fund, Ltd. - III, et al. Docket No 97-1612
(the "Litigation") seeking, among other things, declaratory and injunctive
relief and money damages against Krupp, certain of the Krupp Funds, and certain
general partners of the Krupp 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, Krupp 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 Krupp 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 Krupp $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 Krupp Funds listed on
Schedule I and 120 months with respect to those Krupp Funds listed on Schedule
II from the last date an investor list in a Krupp Fund is delivered to Gramercy
in response to Gramercy's request, Gramercy and its Affiliates shall not,
without the prior written consent of Krupp, which may be granted or withheld in
Krupp's 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 Krupp Fund (except with respect to the Krupp 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 Krupp Fund listed on Schedule I);
(ii) vote its interest in any Krupp 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 Krupp 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 Krupp 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
Krupp Fund;
(vi) sell, transfer or assign any interests in any Krupp Fund
to any person or entity not bound by the terms and conditions of this Agreement
(except that with respect to the Krupp 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 Krupp 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 Krupp 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 Krupp Fund which does not exceed two
percent of the outstanding voting securities or other interests in any such
Krupp 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 Krupp Fund to any affiliate of Krupp, any amount of voting
securities or other interest in such Krupp 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. Krupp
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 Krupp 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 Krupp 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 Krupp 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 Krupp.
Gramercy covenants and agrees that it will not telephone or otherwise directly
contact any investor in any Krupp 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 Krupp, at least five days before mailing or
otherwise disseminating to investors in any Krupp Fund any communication to be
given to one or more investors in any Krupp Fund by or on behalf of Gramercy or
any Affiliate of Gramercy. Krupp 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 Krupp 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 Krupp; Safe Harbor Provision, Protection of
Partnership Status: Gramercy acknowledges that:
(a) Krupp and its Affiliates have significant fiduciary
obligations to the investors in the Krupp Funds, and has stated that it is
entering into this Agreement, among other reasons, to fulfill those fiduciary
obligations;
(b) Krupp 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 Krupp Funds in order to (i) avoid the termination of such Krupp Fund's
status as a partnership under the Internal Revenue Code of 1986, as amended (the
"Code"); (ii) avoid the treatment of such Krupp Fund as a "publicly traded
partnership" under the code; or (iii) prevent such Krupp 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
Krupp 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 Krupp Fund.
8. Form of Transfer Agreements: Krupp 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 Krupp 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 Krupp 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 Krupp 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 Krupp 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 be deemed given or served, as the case may be, upon
actual delivery to the parties at the following addresses:
If to Gramercy: Bryan E. Gordon
Gramercy Park Investments, LP
555 Fifth Avenue-9th Floor
New York, New York 10017
with a copy to: Lawrence P. Kolker, Esq.
Wolf, Haldenstein Adler
Freeman & Herz LLP
270 Madison Avenue
New York, New York 10016
If to Krupp: The Krupp Corporation
470 Atlantic Avenue
Boston, Massachusetts 02210
Attention: Laurence Gerber
with a copy to: Scott D. Spelfogel, Esq.
Senior Vice President and
General Counsel
The Berkshire Group
470 Atlantic Avenue
Boston, Massachusetts 02210
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 Krupp, 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 be 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/ Bryan E. Gordon
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Bryan E. Gordon
Managing Director
THE KRUPP CORPORATION
By: /s/ Laurence Gerber
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Laurence Gerber
President
SCHEDULE I
Krupp Cash Plus Limited Partnership
Krupp Cash Plus-II Limited Partnership
Krupp Cash Plus-V Limited Partnership
Krupp Insured Plus Limited Partnership
Krupp Insured Plus-II Limited Partnership
Krupp Insured Plus-III Limited Partnership
Krupp Insured Mortgage Limited Partnership
Krupp Associates 1980-1
Krupp Realty Fund, LTD-III
Krupp Realty Limited Partnership-IV
Krupp Realty Limited Partnership-V
Krupp Realty Limited Partnership-VII
Krupp Institutional Mortgage Fund Limited Partnership
SCHEDULE II
Krupp Government Income Trust
Krupp Government Income Trust II
Exhibit A
AGREEMENT of ASSIGNMENT and TRANSFER
For Limited Partnership Interests in
DEAN WITTER 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 Dean Witter 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 IRA or KEOGH or similar account,
I understand that this Agreement must be signed by the custodian of such IRA or
KEOGH account. Furthermore, I hereby authorize and direct the custodian of such
IRA or KEOGH 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 IRA/KEOGH)
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:_________________________________