ASSIGNMENT AND TRANSFER AGREEMENT
THIS ASSIGNMENT AND TRANSFER AGREEMENT (the "Agreement") is executed
and delivered as of January 3, 2000 between Madison Partnership Liquidity
Investors 34, LLC, Madison/WP Partnership Value Fund III, LLC, ISA Partnership
Liquidity Investors, and Investment Services of America, LLC (each an "Assignor"
and together the "Assignors") and Bond Purchase, LLC, a Missouri limited
liability company ("Assignee").
RECITALS
WHEREAS, the Assignors possess 1,995.667 units of limited partnership
interests in XxXxxx Real Estate Fund XX, LP (the "Partnership");
WHEREAS, Assignee desires to purchase all of each Assignor's right,
title and interest in those units (the "Units") and each Assignor desires to so
assign and transfer its Units;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignment. Assignors hereby assign, transfer and convey the
Units to Assignee.
2. Payment. Assignee shall pay to Xxxxx & Geddes, P.A., as escrow
agent ("Escrow Agent"), the amount of $199,566.70 (the "Payment"), such Payment
to be received by wire transfer on or before January 7, 2000 (or such later date
as Assignors may provide). The Payment shall be distributed by the Escrow Agent
to the Assignors upon Escrow Agent's receipt of an executed original of this
Agreement from Assignors, which Assignee has agreed is sufficient
documentation to evidence each Assignor's assignment of its Units to Assignee
hereunder (the "Documentation"), and such Documentation shall then be forwarded
to Assignee. Upon receipt of the Payment by Assignors, Assignors agree to
provide Assignee with a duly executed revocable proxy voting against the
proposed partnership merger described in the proxy statement dated December 14,
1999, and a power of attorney/proxy, the form of which has previously been
provided by Assignee.
3. Confirmation and Transfer. Not withstanding anything to the
contrary, the parties agree that neither this Agreement nor the transaction
contemplated hereby effects the actual transfer of the Units on the books and
records of the Partnership. Assignee further acknowledges that, pursuant to the
terms of the Partnership's governing documents, such transfer may require the
approval and/or confirmation of the Partnership's General Partner
("Confirmation"). The parties therefore agree that this Agreement is not
contingent upon any such Confirmation. All efforts to be made regarding, and all
costs associated with, Confirmation (including but not limited to payment of all
applicable transfer fees) shall be the sole responsibility of Assignee.
4. Distributions and Benefits. Notwithstanding anything to the contrary
herein, all distributions and other benefits related to the Units (together, the
"Distributions") and actually paid on or before January 3, 2000 (regardless of
when such Distribution was declared) shall be retained by the Assignors, with
all Distributions paid after that date being hereby assigned to Assignee. All
efforts to be made regarding, and all costs associated with, the Distributions
shall be the responsibility of the party to which they are hereby retained or
assigned. Any Distributions which are received by one party but which are due to
the other party under the terms of this Agreement shall paid over to the proper
party as soon as reasonably possible after such receipt. This Agreement is not
contingent upon Assignee's receipt or recovery of any Distributions.
5. Release and Indemnification. Assignee releases the Assignors, their
members, partners, officers, directors, employees and agents, their successors
and assigns, from all claims and causes of action arising from or in connection
with, whether directly or indirectly, the Units ("Claims"). Assignee further
indemnifies Assignors, their members, partners, officers, directors, employees
and agents, their successors and assigns, and agrees to hold them harmless from
all such Claims and to defend and bear the cost of same, including the payment
of Assignors' reasonable attorney's fees. Notwithstanding the foregoing,
Assignee's release and indemnity
2
obligations under this paragraph shall not extend to damages incurred as a
result of Assignors' breach of this Agreement.
6. Representations of Assignors. Each of the Assignors hereby warrants,
represents and agrees as follows:
(a) It is an entity duly formed, validly existing and in good
standing under the laws of the State of Delaware.
(b) It is the sole owner of its interest in the Units, has the
power and authority to assign its Units under the terms of
this Agreement, and has not made any other assignment of its
Units, which are being assigned free and clear of all liens
and encumbrances;
(c) This Agreement has been duly executed by it and, when executed
and delivered by all parties, will constitute its legal, valid
and binding obligations enforceable against it in accordance
with this Agreement's terms.
(d) No litigation, investigation or proceeding by or before any
court, arbitrator, governmental authority or otherwise is
pending or, to its knowledge, threatened by or against it as
would materially affect this Agreement.
(e) All representations and warranties hereby made shall survive
the execution and delivery of this Agreement. No
representation or warranty contains or will contain any untrue
statement of material fact or omits or will omit any material
fact, necessary to make the statements contained therein not
misleading.
7. Representations of Assignee. The Assignee hereby warrants,
represents and agrees as follows:
(a) Assignee is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of
Missouri.
(b) This Agreement has been duly executed by the Assignee and,
when executed and delivered by both parties, will constitute a
legal, valid and binding obligation of the Assignee
enforceable against it in accordance with this Agreement's
terms.
(c) No litigation, investigation or proceeding by or before any
court, arbitrator, governmental authority or otherwise is
pending or, to Assignee's knowledge, threatened by or against
the Assignee as would materially affect this Agreement.
(d) All representations and warranties hereby made shall survive
the execution and delivery of this Agreement. No
representation or warranty contains or will contain any untrue
statement of material fact or omits or will omit any material
fact, necessary to make the statements contained therein not
misleading.
3
8. Other Documents. The parties agree to execute such other documents
and to undertake such other tasks as are reasonably related to effectuation of
the transaction contemplated by this Agreement.
9. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be deemed to be an original, and all of
which together shall be one and the same instrument.
10. Severability. If any terms or Provisions of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement and its application
shall not be affected thereby and each term shall be valid and be enforced to
the fullest extent permitted by law.
11. No Waiver. The failure of a party to seek redress for any violation
of, or to insist upon the strict performance of, any term of condition of this
Agreement shall not prevent a subsequent act that would have originally
constituted a violation of this Agreement from having all the force and effect
of any original violation and shall not constitute or be construed as a waiver
of such term or condition. All rights and remedies that any of the parties may
have at law, in equity or otherwise upon breach of any term or condition of this
Agreement shall be distinct, separate and cumulative and no one of them shall be
deemed to be in exclusion of any other.
12. Entire Agreement. This Agreement contains the entire agreement
between the parties. No modification of this Agreement shall be binding unless
such modification shall be in writing and signed by the parties hereto.
13. Governing Laws. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware. Exclusive jurisdiction for
all claim causes of action and disputes arising from or in connection with this
Agreement ("Disputes") shall be vested in the
4
courts of the State of Delaware. The prevailing party in any Dispute shall be
awarded its attorney's fees in connection with that Dispute.
14. Headings. The, headings used in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
Bond Purchase, LLC
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Member
Madison Partnership Liquidity Investors 34, LLC
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
Madison/WP Partnership Value Fund III, LLC
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
ISA Partnership Liquidity Investors
By: Madison Realty Partners 7, LLC,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
Investment Services of America, LLC
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
5
