AGREEMENT of ASSIGNMENT and TRANSFER
For Limited Partnership Interests in
Enstar Income Program II-2, L.P.
Please make any corrections to name/mailing address in space to the left.
I hereby tender to Madison Liquidity Investors 104, LLC, a Delaware limited
liability company ("Madison"), the above-described limited partnership interests
(the "Units") in Enstar Income Program II-2, L.P., a Georgia limited partnership
(the "Partnership"), for $225.00 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
April 21, 1999) 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 April 21,
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 will remain open until May 24, 1999, subject to extension 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 April 21, 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 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 April 21, 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 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 April 21,
1999, 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 April 21, 1999. To the
extent that any distributions are made by the Partnership with respect to the
Units on or after April 21, 1999, 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 ▇▇▇ or ▇▇▇▇▇ or similar account,
I understand that this Agreement must be signed by the custodian of such ▇▇▇ or
▇▇▇▇▇ account. Furthermore, I hereby authorize and direct the custodian of such
▇▇▇ or ▇▇▇▇▇ 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
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BOX A
(See Instructions to Complete Agreement of Assignment and Transfer - Box A)
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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)
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Your Social Security or Your Telephone Number Signature of Co-Seller and Medallion Signature
Taxpayer Identification Number Guarantee (If applicable)
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Your Signature and Medallion Signature Guarantee
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Custodian Signature and Medallion Signature Guarantee (Required if Units held in ▇▇▇/▇▇▇▇▇)
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.
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BOX B
MEDALLION SIGNATURE GUARANTEE
(Required for all Sellers) (See Instructions to Complete Agreement of Assignment and Transfer - Box B)
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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.
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BOX C
SUBSTITUTE FORM W-9
(See Instructions to Complete Agreement of Assignment and Transfer - Box C)
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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.
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BOX D
FIRPTA AFFIDAVIT
(See Instructions to Complete Agreement of Assignment and Transfer - Box D)
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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.
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▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇-▇
(See Instructions to Complete Agreement of Assignment and Transfer - Box E)
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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.
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AGREED TO AND ACCEPTED:
Madison Liquidity Investors 104, LLC
By:_____________________________________________________________________________
Madison Liquidity Investors 104, LLC, ▇.▇. ▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ o Tel: ▇▇▇.▇▇▇.▇▇▇▇ o Fax: ▇▇▇.▇▇▇.▇▇▇▇