ASSIGNMENT AND ASSUMPTION AGREEMENT
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THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment") is made and
entered into this 26th day of October, 1999, by and among (i) (A) PARKSIDE
ASSOCIATES, INC., a Kentucky corporation, (B) PARKSIDE USA, LLC, a Kentucky
limited liability company, and (C) XXXX X. XXXXXXX, an individual resident of
the Commonwealth of Kentucky (collectively, the "Assignor"); and (ii) HOMES FOR
AMERICA HOLDINGS, INC., a Nevada corporation (the "Assignee").
WHEREAS, Assignor and Xxxxxxxx-Xxxxxxx Corporation, a Kentucky
corporation ("KWC"), entered into that certain Purchase Agreement dated October
29, 1997, as amended by that Addendum dated October 30, 1999, a copy of which is
attached hereto as Exhibit A (the "Purchase Agreement") whereby Assignor agreed
to purchase and KWC agreed to convey certain real property located in Xxxxx
County, Kentucky for the purposes of developing a multi-family residential
housing project (the "Project");
WHEREAS, in connection with the development of the Project, Assignor
received from the U.S. Department of Housing and Urban Development a Commitment
for Insurance Advances, Project No. 083-35544, a copy of which is attached
hereto as Exhibit B (the "HUD Commitment"); and
WHEREAS, Assignor desires to assign to Assignee, effective as of 12:01
a.m., prevailing local time, on October __, 1999 (the "Effective Time"), all of
Assignor's right, title and interest in and to the Purchase Agreement, the HUD
Commitment and certain other Assumed Contracts (as hereinafter defined) executed
and/or prepared in contemplation of the development of the Project in accordance
with the terms and conditions contained in that certain Letter of Intent dated
October 13, 1999 executed between Assignor and Assignee, as amended by the
Addendum of that same date, a copy of which is attached hereto as Exhibit C and
incorporated herein by reference (the "Letter of Intent").
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignment. As of the Effective Time, Assignor hereby assigns to
Assignee all of Assignor's right, title and interest in and to the Purchase
Agreement, the HUD Commitment, and the contracts and agreements more fully
described and attached hereto on Exhibit D (collectively, the "Assumed
Contracts").
2. Assumption. Assignee hereby agrees to accept the Purchase Agreement,
the HUD Commitment and Assumed Contracts and hereby assumes all obligations,
liabilities and duties of Assignor thereunder accruing and arising at and after
the Effective Time.
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3. Deposit. Upon execution of this Assignment, Assignee shall tender a
non-refundable deposit in the amount of $5,000 which shall be held in escrow in
the escrow account of the law firm of Xxxx Xxxxxxxx Xxxxxx & Vice PLLC. On or
before November 3, 1999, provided (i) Assignee shall have waived and/or removed
all contingencies contained in both the Letter of Intent and the Purchase
Agreement and (ii) that the non-refundable deposit shall have been increased by
Assignee to $25,000, the rights granted to Assignee by Assignor hereunder shall
become exclusive. If Assignee does not close the transactions contemplated in
the Purchase Agreement with KWC on or before November 24, 1999, this Assignment
is void and Assignor shall be entitled to retain the deposit as liquidated
damages. The parties further acknowledge that the provisions of Section 3 of
this Assignment supersede in its entirety numerical paragraph two (2) of the
Addendum to the Letter of Intent.
4. Consideration. In addition to the consideration set forth in the
Letter of Intent, the parties agree that the following shall serve as additional
consideration:
(a) Repayment of Loan Proceeds. The parties acknowledge that
at the time of the execution of the Purchase Agreement, KWC loaned to
Assignor an amount equal to $35,571 (the "Loan"), said Loan which was
evidenced by that certain Promissory Note dated April __, 1999 (the
"Promissory Note"). The parties further acknowledge that Assignor
applied the proceeds from the Loan as a good faith deposit at the time
of the execution of the Purchase Agreement. Accordingly, following (i)
the execution of this Assignment, (ii) the satisfaction of the
conditions precedent set forth in Section 5 of this Assignment, and
(iii) the closing of the transactions contemplated in the Purchase
Agreement, Assignee shall pay to Assignor an amount equal to $35,571
which amount will be repaid by Assignor to KWC toward repayment on the
Loan.
(b) Engineering Services. The parties acknowledge that they
have agreed that Riverside Design and Engineering, Inc., an affiliate
of Assignor, shall retain exclusive rights to provide design and
engineering services with respect to the development of the Project.
5. Contingencies. The transfers contemplated in this Assignment are
subject to the satisfaction of the following conditions precedent:
(a) KWC Approval. KWC shall consent in writing to the
assignment of the Purchase Agreement and Assumed Contracts (if
applicable) to Assignee and shall further agree to release any
collateral held by it as security for the repayment of the Promissory
Note, including but not limited to, that certain Assignment of
Contracts and Plans and Specifications dated April 23, 1999.
(b) HUD Approval. HUD shall consent in writing to the
assignment of the HUD Commitment to Assignee.
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6. Indemnification by Assignee. Assignee hereby agrees to indemnify and
hold Assignor harmless from and against any and all claims, demands, suits and
payments of any cost or expense, including reasonable attorneys' fees, that
Assignor shall suffer or incur as a result of Assignee's failure to perform
under the Purchase Agreement, the HUD Commitment or Assumed Contracts from and
after the Effective Time.
7. Indemnification by Assignor. Assignor hereby agrees to indemnify and
hold Assignee harmless from and against any and all claims, demands, suits and
payments of any cost or expense, including reasonable attorneys' fees, that
Assignee shall suffer or incur as a result of Assignor's failure to perform
under the Purchase Agreement, the HUD Commitment or Assumed Contracts prior to
the Effective Time.
8. Brokerage. The parties acknowledge that Assignor shall have no
obligation to pay any brokerage commission in connection with the transactions
contemplated herein. Accordingly, the first sentence in numerical paragraph
seven (7) of the Letter of Intent shall be hereby deemed deleted. The remaining
two sentences in that paragraph shall remain unaffected.
9. Other Documents. Assignor and Assignee hereby agree to execute and
deliver such other documents and instruments as may be reasonably necessary to
accomplish the transfers contemplated by this Assignment.
10. Governing Law. This Assignment shall be interpreted and construed
in accordance with the laws of the Commonwealth of Kentucky.
11. Entire Agreement. This Assignment and its Exhibits constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, oral and written, between the
parties hereto with respect to the subject matter hereof.
12. Binding Nature. The terms and conditions of this Assignment shall
be binding upon the parties hereto and shall inure to the benefit of their
respective successors and assigns.
13. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Assignment to be
executed as of the day, month and year first above written.
PARKSIDE ASSOCIATES, INC., a Kentucky
corporation
By:
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Its:
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PARKSIDE USA, LLC, a Kentucky limited
liability company
By:
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Its:
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XXXX X. XXXXXXX
("Assignor")
HOMES FOR AMERICA HOLDINGS, INC., a
Nevada corporation
By:
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Its:
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(the "Assignee")
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