AGREEMENT of ASSIGNMENT and TRANSFER
For Units of Investor Limited Partnership Interests in
Xxxxx Realty Fund, Ltd. - III
Please make any corrections to name/mailing address in space above.
I hereby tender to KRF3 Acquisition Company, L.L.C., a Delaware limited
liability company ("KRF3"), the number of Units of Investor Limited Partnership
Interests (as defined in the Partnership Agreement, defined hereinafter) 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 Xxxxx Realty Fund, Ltd. - III, a Massachusetts limited partnership
(the "Partnership"), for $550.00 per Unit in cash, without any interest thereon,
(reduced by the amount of any cash distributions made to me by the Partnership
on or after May 14, 1999) in accordance with the terms and subject to the
conditions of KRF3's Offer to Purchase attached as Exhibit (a)(1) to Schedule
14D-1 dated May 14, 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 and the withdrawal rights (described
further in the Offer to Purchase "The Offer - Section 4. Withdrawal Rights")
will remain open until 12:00 p.m. New York City time on June 11, 1999, subject
to extension at the discretion of KRF3 (as discussed in the Offer to Purchase
"The Offer - Section 5. Extension of Tender Period; Termination; and
Amendment"). It is understood that payment for the Units tendered hereby will be
made by check mailed to me at the above address promptly after the date of the
Partnership's confirmation that the transfer of the Units to KRF3 is effective,
subject to "The Offer - Section 4. Withdrawal Rights" contained in the Offer to
Purchase. The Offer is subject to "The Offer Section 8. Conditions of the Offer
in 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 (the "Purchase Date"), I hereby sell,
assign, transfer, convey and deliver to KRF3, 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 such date, 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 "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 (the "General Partners"), and (ii) in the event that
KRF3 (which is an affiliate of the General Partners) elects to become a
substitute limited partner of the Partnership, subject to the consent of the
General Partners to the extent such consent may be required in order for KRF3 to
become a substitute limited partner of the Partnership.
It is my intention that KRF3 and its designees, if any of them so elects,
succeed to my interest as a Substitute Limited Partner (as defined in Section
7.5 of the Partnership Agreement) in my place with respect to the transferred
Units. It is my understanding, and I hereby acknowledge and agree, that KRF3 and
its designees shall be entitled to receive all distributions or other property
from the Partnership attributable to the transferred Units that are made on or
after the Purchase Date, 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 Purchase Date and without regard to whether
the applicable sale, financing, refinancing or other disposition took place
before or after the Purchase Date. 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 Purchase
Date occurs shall be divided among and allocated between me and KRF3 and its
designees as provided in the Partnership Agreement, or in accordance with such
other lawful allocation methodology as may be agreed upon by the Partnership and
KRF3. 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 "The Offer - Section 4. Withdrawal Rights" contained in the Offer to
Purchase, I hereby irrevocably constitute and appoint KRF3 and its designees as
my true and lawful agent and attorneys-in-fact and proxies with respect to the
Units (and with respect to any and all other Units or other securities issued or
issuable in respect of such Unit on or after the date hereof), each with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to (i) exercise all 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; (ii) act in any manner as any
such attorney-in-fact shall, in its sole discretion, deem proper with respect to
the Units; (iii) deliver the Units and transfer ownership of the Units on the
Partnership's books maintained by the General Partners; (iv) endorse, on my
behalf, any and all payments received by KRF3 from the Partnership that are made
on or after the Purchase Date, which are made payable to me, in favor of KRF3 or
any other payee KRF3 otherwise designates; (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 after the Purchase Date; (vii) otherwise
exercise all rights of beneficial ownership of the Units; and (viii) direct the
General Partners to immediately change the address of record of the registered
owner of the transferred Units to that of KRF3, as my attorney-in-fact. KRF3 and
its designees are further authorized, as part of their powers as my
attorneys-in-fact with respect to the Units, to commence any litigation that
KRF3 and its designees, in their sole discretion, deem necessary to enforce any
exercise of KRF3's or such designees powers as my attorneys-in-fact as set forth
herein. KRF3 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 Partners to remit to KRF3 and its designees any distributions made
by the Partnership with respect to the Units on or after the Purchase Date. To
the extent that any distributions are made by the Partnership with respect to
the Units on or after the Purchase Date, which are received by me, I agree to
promptly pay over such distributions to KRF3. I further agree to pay any costs
incurred by KRF3 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).
By executing and returning the Agreement of Assignment and Transfer, a
Unitholder will be representing that either (a) the Unitholder 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 direct the General Partners to immediately change my address of record
as the registered owner of the Units to be transferred herein to that of KRF3 or
its designees, conditional solely upon KRF3'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 KRF3 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 KRF3 and its designees the
Units, and that effective when the Units are accepted for payment by KRF3 and
its designees, I hereby convey to KRF3 and its designees, and KRF3 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. 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 Partners and its officers, partners,
members, managers, shareholders, directors, employees and agents from all
actions, causes of action, claims or demands I have, or may have, against the
General Partners that result from the General Partners reliance on this
Agreement of Assignment and Transfer or any of the terms and conditions
contained herein. I hereby indemnify and hold harmless KRF3 and 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 KRF3
and its designees 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 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.
SIGN HERE TO TENDER YOUR UNITS
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Box A
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Units to be tendered: All (If you desire to sell less than all of
your units, strike all and indicate the number of units to be
Date: 1999 sold.)
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Your Social Security or Taxpayer Your Signature: Signature of Co-Seller (if applicable):
Identification Number:
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Please note: A Medallion Guarantee is required by all sellers, it's similar to a
notary, but is provided by your bank or brokerage house where you have your
account.
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Box B Medallion Signature Guarantee: (Required by all Sellers)
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Name of Bank or Brokerage House:
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Authorized Signature of Bank or Brokerage House Representative:
Name: Title: Date: ___________, 1999
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AGREED TO AND ACCEPTED:
KRF3 Acquisition Company, L.L.C.,
By:____________________________________
KRF3 Acquisition Company, L.L.C., Xxx Xxxxxx Xxxxxx Xxxxx 0000, Xxxxxx,
Xxxxxxxxxxxxx 00000 Telephone Number: 0 (000) 000 0000, Fax (000) 000-0000
