EXHIBIT 10(cc)
ASSIGNMENT AGREEMENT
This Assignment Agreement ("AGREEMENT") is made as of August 15, 2008,
by and between Westbridge Agricultural Products, a California corporation
("ASSIGNOR"), and Xxxxxxxxx Xxxxxx Xxxxxx, a citizen of Mexico ("ASSIGNEE"),
with reference to the following facts:
RECITALS
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A. On March 8, 1990, Assignor entered into an agreement of debt
acknowledgement with a mortgage guarantee, with Xxxxxxx Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxx Xxxxxx Xxxxxx and Xxxxxx Xxxxxxx xx Xxxxxx ("DEBTORS"), in the amount of
Four Hundred Fifty Three Thousand Two Hundred Seventy United States of America
Dollars and 13/100 (US$453,270.13). Under said debt acknowledgement, entered
before Public Notary Number Two (2) of the City of La Paz, Baja California Sur,
Mexico, Debtors pledged and delivered in favor of Assignor, a mortgage guarantee
over a parcel of real estate described as Nuevo San Xxxx, in San Xxxx del Cabo
district, in Baja California Sur, Mexico, with a surface of 19.20.00 hectares
(Nineteen hectares and 20/100 hectare) and an adjacent parcel with a surface of
80.00.00 hectares (Eighty hectares, no acres and no meters). Both referenced
lots are recorded under the name of Xxxxxxx Xxxxxx Xxxxxx under the same record:
Number 191, Page 427, Book III: E.P. First Section, dated on October 14, 1971.
B. Debtors did not comply with their obligation to pay the underlying
obligation as it was agreed in said debt acknowledgement. As a result, Debtors
were sued by the Assignor and the court referenced below gave a judgment in
favor of Assignor in trial number 797/993, on May 17, 1995. The judgment was
issued by the judge of the Court of First Instance of the Judicial Section of
Los Cabos, located in San Xxxx del Cabo, Baja California Sur, Mexico.
C. Under a judicial auction, the Property was provisionally awarded to
Assignor on February 8, 2007. This auction took place before the First Court of
First Instance of Civil and Family Matters, located in Cabo San Xxxxx, Baja
California Sur, Mexico, under number 50/97, which court will be responsible up
to completion, because the court located in San Xxxx del Cabo excused itself
from the proceedings.
D. Assignor has not undertaken any action or proceedings to register
the Property, nor has it taken any possession of the Property, therefore the
legal proceeding has not been concluded.
E. Assignor wishes to assign, transfer and convey its rights to the
Property granted in case number 50/97 and Assignee wishes to receive the
assignment of such Assignor's rights.
Now, Therefore, for due consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. The following words used in this Agreement, shall have
the following meanings ascribed to them:
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"PROPERTY" shall mean the real estate described as Nuevo San Xxxx, in
San Xxxx del Cabo district, in Baja California Sur, Mexico as described in Case
No. 50/97.
"RIGHTS" shall mean all of Assignor's rights, title and interest to the
Property accruing from or arising in connection with Case No. 50/97, including
rights to register the Property in its name. Without limiting the above, Rights
includes all credit and/or disputed rights arising from the aforementioned
lawsuits, specifically the agreement to acknowledge the debt with the mortgage
guarantee, which noncompliance was the basis for the referenced lawsuits, the
final judgment and its legal consequences which means the expenses and costs of
the trial. The Rights also includes the property rights that Assignor has once
the sale at auction takes place under the execution stage of the aforementioned
legal proceedings as well as all the legal consequences, effects and rights
arising that are necessary to obtain the final award, the material possession of
the Property and the legal registration of the Property under the name of
Assignee. These rights include, and Assignee will acquire, all disputed rights
from Assignor arising from the referenced lawsuits and particularly the contract
which noncompliance originated the final judgment for the Assignor in such
actions, the real estate auction, and the judicial award, as well as the
property rights that Assignor has over the Property.
2. ASSIGNMENT. Contingent upon receipt of full payment of the Purchase
Price, Assignor shall fully and forever assign, transfer and convey to Assignee
at the Closing Date, all of the Rights, and Assignee accepts such assignment
("ASSIGNMENT"). This Assignment will come into effect, and it will produce legal
consequences between the parties and for third parties, in such a way that it
may deem to be more convenient to Assignor's interests; thereby freeing Assignor
of any responsibility for the Rights or the Property. At the time of Closing,
this Assignment will come into effect, and it will produce legal consequences
between Assignor and Assignee and for third parties, from that time, in such a
manner that Assignee is legalized to exercise the Rights; thereby releasing
Assignor of any responsibility from any action or liability that arises from the
Rights or the Property. Assignor agrees that to the extent it is necessary for
Assignee to exercise any of its rights related to the Assignment in Mexico,
Assignor shall perform all reasonable actions to ratify the transaction
contemplated by this Assignment, including granting special powers of attorneys
before authorities and public notaries in Mexico. The cost related to such
actions, including any costs paid by Assignor, shall be borne by Assignee.
3. PURCHASE PRICE. For the Assignment, Assignee shall pay to Assignor
US$1,250,000 ("PURCHASE PRICE") payable in accordance with the following
schedule:
(i) By July 8, 2008, US$20,000, which amount has been
received.
(ii) By August 20, 2008, US$280,000, of which US$5,000 has
been received.
(iii) At the time of Closing of this Agreement, US$950,000.
4. DEPOSITS. All payments of the deposits and Purchase Price will be
paid to Assignor, but subject to the terms of this Agreement. If this Agreement
does not close on the Closing Date, the funds, except those funds which are
non-refundable, shall be promptly returned by Assignor to Assignee by wire
transfer and the transaction set forth in this Agreement will be deemed
terminated. All deposits are non-refundable except the second deposit of
US$280,000 is non-refundable only to the extent of US$25,000 per month (the 15th
day of each month shall constitute the last day of the month) for each 30 day
period or part thereof between August 15, 2008, and the Closing Date.
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5. DUE DILIGENCE.
A. Assignee has until September 8, 2008 to complete to its
satisfaction all the due diligence on the Property and the Rights. Assignor
shall cooperate with such due diligence to the extent that it has in its
possession documents related to the Property and Rights and has previously
provided Assignee with a limited power of attorney to review court files for
matters 797/973 and 50/97. As part of its due diligence, Assignee will undertake
the following:
(i) Review the court files from which Assignor's Rights arose.
(ii) Examine the title records of the Property.
(iii) Visit the Property.
(iv) Examine Mexican local, state and federal laws,
regulations, restrictions, ordinances, policies and other rules governing the
Property and its permitted uses and restrictions.
(v) Conduct an independent survey of the Property.
(vi) Consult with professionals and experts in real estate
concerning the Property.
Assignee represents to Assignor that Assignee is an expert in real
estate and real estate development and will undertake all investigations
Assignee deems necessary and prudent in connection with this transaction.
B. On or before September 8, 2008, Assignee shall notify
Assignor in writing (email is acceptable) if the results of the due diligence
investigation are unacceptable to Assignee. If no such notice is received by
Assignor, the results of the investigation shall be deemed acceptable to
Assignee. If the results are unacceptable, Assignee shall indicate in the notice
the reason(s) for the results being unacceptable. Upon receipt of such notice
that the due diligence is unacceptable, Assignor may, but is not required, to
correct the problems referenced by Assignee within a thirty (30) day period
following receipt of the notice. If the due diligence is acceptable, either
initially or after correction by Assignor, the transaction contemplated by this
Agreement will conclude in accordance with the terms hereof. If such results are
not acceptable to Assignee, either initially if Assignor waives the right to
correct or after the corrections have been attempted, it will deemed that
Assignee has terminated this Agreement and the deposit, except for the portion
that is non-refundable, will be promptly returned to Assignee.
6. ASSIGNOR'S DISCLOSURES. Assignor hereby makes the following
disclosures to Assignee concerning the Rights and the Property and Assignee
acknowledges and has determined to proceed with this transaction regardless of
such disclosures.
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(i) Assignor's Rights to the Property are established in Court
matters 797/993 and 50/97. Assignor has no rights to the Property except as set
forth therein. Assignor is not aware of the costs and expenses related to
further perfect the Rights, or if Assignee will be successful in perfecting the
Rights so Assignee may take title to the Property.
(ii) Assignor is aware there may be a fence encroachment on
the Property.
(iii) Assignor is aware that a lien has been filed by Xxxxxxx
Xxxxxxxxx Xxxxxx in a labor action. Assignor is not aware of how such lien will
impact the Rights to be assigned hereby. That lien and file reference is
Official Document No. 267/06, related to File No. 584/03 before the Special
Council of Labor Arbitration.
(iv) Assignor has not visited the Property since February
2007, and is not aware of its current condition.
7. CONDITION OF RIGHTS. Assignor is not representing that it has any
rights to the Property other than the Rights. It is possible that the lien
described in Section 6 may interfere or prevent the Rights from being exercised
in whole or in part, or the lien may adversely impact the economic value of the
Property and Assignee accepts such risk.
8. CONDITION OF PROPERTY. Assignor makes no representations or
warranties concerning the Property. The Property underlying the Rights is
assigned "as-is" and "where-at". Without limiting the foregoing, Assignor
specifically provides to Assignee NO warranty concerning:
(i) Any outstanding taxes or assessments, levies, improvement
charges or other amounts owed to tax authorities in Mexico at all levels of
government.
(ii) Any existing leases or rights of a third party to use or
occupy the Property.
(iii) Any current, pending or threatened litigation concerning
the Property.
(iv) Any land use or zoning matters or restriction effecting
the Property.
(v) Any covenants, recorded restrictions, easements, access
agreement effecting the Property.
(vi) Any order, notice of violation or similar communication
by a Mexican government authority concerning the Property.
(vii) Any notice that the Property is being expropriated or
condemned.
(viii) The environmental condition of Property and any
violation of environmental laws of any Mexican government entity.
(ix) The environmental condition of the Property and the
Property's use in the past.
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(x) Third parties who claim rights of ownership to the
Property or the occupation of the land by squatters or third parties who assert
a legal claim to occupy.
9. PRE-CLOSING AND CLOSING. On or before August 15, 2008 for Assignor
and August 20, 2008 for Assignee, each party will deliver to Xxxxx XxXxxx
Xxxxxxx Moot & Xxxxxx ("XXXXX XXXXXX") two originals of this Agreement signed by
the party. Xxxxx XxXxxx will hold such Agreements until the Closing. Xxxxx
XxXxxx will notify all parties upon its receipts of the originally signed
Agreements. This Agreement will close (the "CLOSING") on the condition that all
conditions precedent are met, on December 15, 2008 ("CLOSING DATE"). Assignee
may extend the closing date to January 15, 2009 by providing written notice to
Assignor, at which time an additional US$100,000 of the deposit becomes
non-refundable. Additionally, the parties may mutually agree to close this
Agreement prior to December 15, 2008. The Closing will be at the offices of
Xxxxx XxXxxx, San Diego, California, or another location mutually acceptable to
the parties.
10. DELIVERIES AT THE CLOSING.
A. DELIVERIES BY ASSIGNOR. At the Closing, Assignor directly
or through Xxxxx XxXxxx shall deliver to Assignee the following documents:
(i) An executed version of this Agreement.
(ii) Executed documents and instruments prepared by
Assignee to the reasonable satisfaction of Assignor that are required by the
Mexican judicial and other government authorities to perfect the assignment
contemplated by this Agreement
B. DELIVERIES BY ASSIGNEE. At the Closing, Assignee directly
or through Xxxxx XxXxxx shall deliver to Assignor the following documents:
(i) An executed version of this Agreement.
(ii) The funds representing the Purchase Price.
11. TERMINATION PRIOR TO CLOSING DATE.
A BY ASSIGNOR. Assignor may terminate this Agreement at any
time prior to the Closing Date if Assignee is in breach of a material term of
this Agreement, which breach is not corrected by Assignee within a period of 15
days after receiving written notice of the breach from Assignor. In the event of
termination under this Section A, Assignor shall paid the amount of the deposit
that is non-refundable that accrued to date under this Agreement and the balance
of the deposit shall be returned to Assignee. Other than related to the deposit,
the parties shall have no claim against one another as a consequence of the
termination.
B. BY ASSIGNEE. Assignee may terminate this Agreement at any
time prior to the Closing Date if Assignor is in breach of a material term of
this Agreement, which breach is no corrected by Assignor within a period of 15
days after receiving written notice of the breach from Assignee. In the event of
termination under this Section B, Assignee shall receive a refund of Assignee's
deposit, except the initial deposit of $20,000 . Other than related to the
deposit, the parties shall have no claim against one another as a consequence of
the termination.
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C. BY ASSIGNOR AND ASSIGNEE. Assignee and Assignor may
mutually agree in writing at any time to terminate this Agreement prior to the
Closing. Other than related to the deposit, the parties shall have no claim
against one another as a consequence of the termination.
12. REVIEW OF COURT PROCEEDINGS. Assignee represents to Assignor that
Assignee has reviewed the files of all the court proceeds related to the
Property and to the Rights. Assignee is aware of (i) the procedural stage of the
proceedings, and (ii) the existence of the trial and lien from the labor matter.
Having reviewed the lawsuit and documents on which the lawsuit is based, knowing
the legal process and the procedural stage, Assignee confirms hereby that it is
satisfied with the legal proceedings and is completing the transaction set forth
in this Agreement with full knowledge.
13. MISCELLANEOUS.
A. NOTICES. Any notice, consent or approval required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given upon (i) hand delivery, (ii) one day after facsimile
transmission, (iii) four days after being deposited, prepaid, with FedEx or
another reliable international courier service, and addressed as follows:
To Assignor: Westbridge Agricultural Products
0000 Xxxxxxx Xxxxxxx
Xxxxx, XX 00000-0000
X.X.X.
Attn: Xxxxxxxxx Xxxxxxxxx, President
Tel: 000-000-0000
Fax: 000-000-0000
To Assignee: Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxx Inmuebles
Rio Colorado No. 355 Ote.
Col. Del Xxxxx, Xxxxx Xxxxxx, N.L.
X.X. 00000
Xxxxxx
Tel: (00) 0000-0000
Fax: _____________________
Or such other address as either party may from time to time specify in writing
to the other.
B. SUCCESSORS AND ASSIGNS. Assignee shall have the right to
assign this Agreement prior to Closing to any legal person or entity without
Assignor's consent or approval. Upon any assignment by Assignee, the assignee in
that transaction shall be deemed to have assumed the obligations of Assignee
under this Agreement. Except as set forth above, neither this Agreement nor the
rights of either party hereunder may be assigned by either party. This Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors, heirs, administrators and permitted assigns.
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C. GOVERNING LAW; VENUE. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California. All
hearings, trials, mediations, arbitrations or other dispute resolution forums
arising from, or in connection with this Agreement or the transaction underlying
this Agreement shall occur in San Diego County, California.
D. ATTORNEYS FEES. In the event a dispute arises concerning
the performance, meaning or interpretation of any provision of this Agreement,
the defaulting party or party not prevailing in such dispute shall pay any and
all costs and expenses incurred by the other party in enforcing or establishing
its rights hereunder, including, without limitation, court costs, attorneys'
fees and expenses.
E. TERM SHEET; INTEGRATION; AMENDMENT. The Term Sheet dated
July 2, 2008 is hereby terminated and superseded by this Agreement. This
Agreement constitutes the entire agreement between the parties relating to the
subject matter hereof. This Agreement may only be amended or modified only by a
written instrument executed by Assignor and Assignee.
F. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, all of which, taken
together, shall constitute on and the same instrument. A facsimile or
electronically transmitted copy may be deemed to be as an original.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ASSIGNOR: ASSIGNEE:
Westbridge Agricultural Products,
a California corporation
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Xxxxxxxxx Xxxxxx Xxxxxx
By:
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Xxxx Xxxxxxxxx
President
Witness for Assignor: Witness for Assignee:
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Xxxxxx Xxxxxxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx Hasbund
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