REVISED 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
___14D1 dated May___14, 1999, the Supplement to the Offer to Purchase dated May
14, 1999 and Supplement No. 2 to the Offer to Purchase dated June 11, 1999
(collectively, the "Offer to Purchase") and this revised 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___18, 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 noncash 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 attorneysinfact 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 attorneyinfact 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 attorneyinfact 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 9614 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-infact. KRF3 and its designees are further authorized, as
part of their powers as my attorneysinfact 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
attorneysinfact 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 IRA or XXXXX or similar account,
I understand that this Agreement must be signed by the custodian of such IRA or
XXXXX account. Furthermore, I hereby authorize and direct the custodian of such
IRA 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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Date: 1999 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
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
