EXHIBIT 99.3
------------
ASSIGNMENT AGREEMENT
--------------------
This Assignment Agreement is entered into as of May 21, 1997, by and
between ▇▇▇▇▇▇▇▇ PARTNERS, INC., a California corporation ("▇▇▇▇▇▇▇▇"), and
-----------------------
TURKEY VULTURE FUND XIII, LTD., an Ohio limited liability company ("TVF").
------------------------------
RECITAL
▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ to purchase 1,183,556 shares of Preferred Stock (the
"Stock") of Meridian Point Reality Trust VII Co. ("Meridian") for a purchase
price of $790 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, ▇▇▇▇▇▇▇▇
----------
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 ▇▇▇▇▇▇▇▇ thereunder.
2. Consideration. In consideration for the assignment by ▇▇▇▇▇▇▇▇ of
-------------
its rights to the Purchase Agreement and subject to the provisions of this
Agreement, TVF agrees to pay ▇▇▇▇▇▇▇▇ (a) $50,000 to reimburse ▇▇▇▇▇▇▇▇ for the
nonrefundable deposit ▇▇▇▇▇▇▇▇ 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 of the deposit previously made by
▇▇▇▇▇▇▇▇, and (b) an amount equal to the direct out-of-pocket expenses incurred
by ▇▇▇▇▇▇▇▇ in connection with the negotiation and signing of the Purchase
Agreement, including reasonable legal expenses, but 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 ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ hereby
------------------------------------------
represents and warrants to TVF as follows: (a) ▇▇▇▇▇▇▇▇ has the full power and
authority to enter into and perform this Agreement, (b) ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ of all the terms
and conditions of this Agreement or compliance
1
with any of Meredith's obligations under it, (c) ▇▇▇▇▇▇▇▇ has taken all
necessary actions to authorize and approve the execution, delivery and
performance of this Agreement, (d) this Agreement constitutes a legal, valid and
binding obligation of ▇▇▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇, enforceable
against ▇▇▇▇▇▇▇▇ and to Meredith's knowledge, Mass Bay, in accordance with its
terms. ▇▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ or any
assignee of ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ elected to the Board of Directors of Meridian, with first
priority to ▇▇. ▇▇▇▇▇▇▇, second priority to ▇▇. ▇▇▇▇▇▇▇▇, and thereafter
priority to other nominees selected by ▇▇. ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇
2
agrees to assign to TVF or to ▇▇. ▇▇▇▇▇▇▇ any proxy or proxies obtained by it
from Mass Bay with respect to the 1997 Annual Meeting of Meridian or to name TVF
or ▇▇. ▇▇▇▇▇▇▇ as substitute proxies. ▇▇▇▇▇▇▇▇ shall obtain from Mass Bay a
proxy pursuant to the letter agreement attached hereto as Exhibit B.
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 therefore,
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 ▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇ Partners, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
If to TVF: Turkey Vulture Fund XIII, Ltd.
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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.
3
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 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.
▇▇▇▇▇▇▇▇ PARTNERS,INC.
Date of signature, May 21, 1997 By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Its: President & CEO
TURKEY VULTURE FUND XIII, LTD.
Date of signature, May 22, 1997 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Its: Manager
4