Exhibit 7.3
ASSIGNMENT AGREEMENT
This Assignment Agreement is entered into as of May 21, 1997, by and
between XXXXXXXX PARTNERS, INC., a California corporation ("Xxxxxxxx"), and
TURKEY VULTURE FUND XIII, LTD., an Ohio limited liability company ("TVF").
RECITAL
Xxxxxxxx has entered into a letter agreement dated March 21, 1997, as amended
by letter agreement dated May 6, 1997 (together the "Purchase Agreement"), with
Massachusetts Bay Transportation Authority Retirement Fund ("Mass Bay"),
providing for Xxxxxxxx to purchase 1,183,556 shares of Preferred Stock (the
"Stock") of Meridian Point Realty Trust VIII Co. ("Meridian") for a purchase
price of $7.90 per share, or a total of $9,350,092.40.
In consideration of the mutual covenants contained herein, the parties hereby
agree as follows:
1. Assignment. Subject to the provisions of this Agreement, Xxxxxxxx
hereby assigns to TVF and/or its assignees all of Meredith's right, title and
interest in and to the Purchase Agreement, and TVF and/or its assignees agree
to assume all of the obligations of Xxxxxxxx thereunder.
2. Consideration. In consideration for the assignment by Xxxxxxxx of its
rights to the Purchase Agreement and subject to the provisions of this
Agreement, TVF agrees to pay Xxxxxxxx (a) $50,000 to reimburse Xxxxxxxx for the
nonrefundable deposit Xxxxxxxx made under the Purchase Agreement, which payment
shall be made concurrently with the execution of this Agreement by a check
payable to Chicago Title Insurance Company (c/o Xxxxx Xxxxxx) against release
by Chicago Title Insurance Company of the deposit previously made by Xxxxxxxx,
and (b) an amount equal to the direct out-of-pocket expenses incurred by
Xxxxxxxx in connection with the negotiation and signing of the Purchase
Agreement, including reasonable legal expenses, but in no event more than
$50,000, which amount shall be paid as soon as practicable, but in no event
more than 30 days, after receipt by TVF of receipts or invoices sufficient to
verify the amounts thereof. In addition, TVF agrees to deliver to Xxxxxxxx, at
the time of the purchase of the Stock from Mass Bay, an option to purchase
200,000 shares of the Stock (the "Option"), the Option to be substantially in
the form of Exhibit A attached hereto.
3. Representations and Warranties of Xxxxxxxx. Xxxxxxxx hereby
represents and warrants to TVF as follows: (a) Xxxxxxxx has the full power and
authority to enter into and perform this Agreement, (b) Xxxxxxxx is not a party
to any contract or subject to any legal restriction with respect to the Stock
or that would prevent or restrict complete fulfillment by Xxxxxxxx of all of
the terms and conditions of this Agreement or compliance with any of Meredith's
obligations under it, (c) Xxxxxxxx has taken all necessary actions to
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authorize and approve the execution, delivery and performance of this
Agreement, (d) this Agreement constitutes a legal, valid and binding obligation
of Xxxxxxxx, enforceable against Xxxxxxxx in accordance with its terms, and (e)
the Purchase Agreement is in full force and effect and constitutes a legal,
valid and binding obligation of Xxxxxxxx, enforceable against Xxxxxxxx and to
Meredith's knowledge, Mass Bay, in accordance with its terms. Xxxxxxxx agrees
to make available to TVF or its lawyers all information in Meredith's
possession with respect to Meridian. These representations and warranties
shall be true as of the closing of the purchase of the Stock.
4. Closing. Xxxxxxxx agrees to give prompt written notice of this
Assignment Agreement to Mass Bay and to notify Mass Bay that the closing under
the Purchase Agreement shall take place no later than June 9, 1997, pursuant to
terms of the Purchase Agreement, and that the certificates for the Stock and a
duly executed proxy to vote all the shares of the Stock at the 1997 Annual
Meeting of Meridian should be delivered to TVF and/or its assignees against
payment by TVF or its assignees of the purchase price. In the event that TVF
or its assignees fail to purchase the Stock from Mass Bay, TVF shall pay to
Xxxxxxxx, in addition to the amounts set forth in Section 2 hereof, the sum of
$100,000 as liquidated damages (unless the failure to close is due solely to
the failure of Mass Bay to deliver a duly executed proxy to vote all the shares
of Stock at the 1997 Annual Meeting of Meridian, in which case the $100,000
will not be payable) and agrees to indemnify Xxxxxxxx against, and to hold it
harmless from, any loss, cost, damage, expense or liability it may incur to
Mass Bay as a result of its failure to purchase the Stock pursuant to the
Agreement; provided, however, that TVF shall have no liability for Meredith's
gross negligence or wilful misconduct.
5. Assignment of this Agreement. This Assignment Agreement shall be
assignable by TVF, in whole or in part, without obtaining Meredith's consent in
order to comply with the percentage ownership limitations of Meridian's Bylaws
and applicable law; provided that if TVF or any assignee can not comply with
such ownership percentages, then TVF shall provide Xxxxxxxx the opportunity to
purchase any Stock that would be deemed to be "Excess Shares" as such term is
defined in Meridian's Bylaws; and, provided further that Xxxxxxxx or any
assignee of Xxxxxxxx pursuant to the foregoing proviso will observe the voting
requirements set forth in Section 6 hereof.
6. Voting of Stock. TVF agrees to vote all shares of Meridian as to
which it has voting power in such a manner as to have Xxxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxxxxx elected to the Board of Directors of Meridian, with first
priority to Xx. Xxxxxxx, second priority to Xx. Xxxxxxxx, and thereafter
priority to other nominees selected by Xx. Xxxxxxx. Xxxxxxxx agrees to assign
to TVF or to Xx. Xxxxxxx any proxy or proxies obtained by it from Mass Bay with
respect to the 1997 Annual Meeting of Meridian or to name TVF or Xx. Xxxxxxx as
substitute proxies. Xxxxxxxx shall obtain from Mass Bay a proxy pursuant to the
letter agreement attached hereto as Exhibit B.
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7. General Provisions.
7.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be either (i) delivered personally,
(ii) sent by telegraph or telex, (iii) sent by facsimile transmission, (iv)
delivered by nationally recognized overnight courier service against a receipt
therefor, or (v) sent by certified, registered or express mail, postage
prepaid. Any such notice shall be deemed given (A) when so delivered
personally, telegraphed, telexed or sent by facsimile transmission if
applicable; (B) when delivered by courier if applicable; or (C) if mailed, five
days after the date of deposit in the United States mail if applicable, as
follows:
If to Xxxxxxxx: Xxxxxxxx Partners, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx, President
If to TVF: Turkey Vulture Fund XIII, Ltd.
c/o Xxxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: 000-000-0000
7.2 Entire Agreement. This Agreement constitutes a complete statement of
the agreements among the parties hereto with respect to the subject matter
hereof and supersedes any prior agreement of the parties with respect thereto.
7.3 Amendment. This Agreement may not be changed orally, but only by an
agreement in writing and signed by all the parties hereto.
7.4 Assignment. Except as specifically set forth above, the parties may
not assign any of their respective duties, obligations, or rights under this
Agreement without the express prior written consent of both of the other
parties, which consent may not be unreasonably withheld.
7.5 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original, and all of which
together shall constitute one and the same instrument, notwithstanding the fact
that all of the parties have not executed the same instrument.
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7.6 Headings. The headings to the Sections hereof are for reference only
and shall not limit or define in any way the content thereof.
7.7 Severability. If any provision of this Agreement shall be held or
deemed to be or shall, in fact, be inoperative or unenforceable as applied in
any particular case for any reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any
extent whatsoever. The invalidity of any one or more provisions of this
Agreement shall not affect the remaining provisions of this Agreement, or any
part thereof.
7.8 Benefit. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto, their successors and assigns.
7.9 Governing Law. This Agreement is to be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers or representatives on the date set
forth above.
XXXXXXXX PARTNERS, INC.
Date of signature: May 21, 1997 By: /s/ Xxxxx X. Xxxxxxxx
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Its: President & CEO
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TURKEY VULTURE FUND XIII, LTD.
Date of signature: May 22, 1997 By: /s/ Xxxxxxx X. Xxxxxxx
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Its: Manager
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