ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
To: Xxxxx
Xxxx, Xxxxxxx Title ("Settlement Agent")
File
No.:
Property: San Diego
Tech Center, Sorrento Mesa, California
This
Assignment of Purchase and Sale Agreement (this "Assignment") is made and
entered into as of this 6th day of April, 2005, by and between Xxxxxxx
Properties, L.P. ("Exchanger")
and Xxxxxxx
Properties-San Diego Tech Center, LLC, a
Delaware limited liability company ("LLC").
RECITALS
A. Exchanger
and Calwest Industrial Holdings, LLC ("Seller") entered into that certain
Purchase and Sale Agreement dated February 25, 2005, as amended by that certain
First Amendment dated March 30, 2005 for the purchase and sale of real property.
That agreement, as amended, is referred to as the "Purchase
Agreement".
B. Exchanger,
National Safe Harbor Exchanges, a California corporation ("NSHE"), and LLC are
parties to that certain Qualified Exchange Accommodation Agreement of a date
even herewith under which LLC has agreed to acquire the Parked Property, as
herein defined, and NSHE, as its sole member, has agreed to serve as an
"exchange accommodation titleholder" as defined in Revenue Procedure 2000-37 in
order to assist Exchanger with a like-kind tax deferred exchange under IRC
Section 1031.
C. Exchanger
desires to assign to LLC the interests and rights of Exchanger to acquire the
real property (and any improvements thereon) that is the subject of this
transaction as described in the Purchase Agreement and is referred to herein as
the "Parked Property".
AGREEMENT
NOW,
THEREFORE, with reference to the foregoing recitals, and in consideration of
mutual covenants and conditions hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Purchase Agreement is hereby amended as follows:
1. Assignment
and Assumption.
Exchanger assigns to LLC all of Exchanger's right, title and interest under the
Purchase Agreement, including xxxxxxx money deposits and sale proceeds, to
acquire the Parked Property. The obligation of Exchanger to deposit funds for
the purchase of the Parked Property, as required under the Purchase Agreement,
is assigned to LLC. LLC accepts the assignment. Subject to the provisions of
this Assignment, LLC assumes Exchanger's interests and rights to acquire the
Parked Property from Seller under the Purchase Agreement. LLC is substituted in
place of Exchanger under the Purchase Agreement solely for the purpose of
acquiring the Parked Property from Seller.
2. LLC as
Buyer; Deeding.
Exchanger and LLC acknowledge and agree that LLC will acquire the Parked
Property from Seller. LLC, as buyer, will instruct the Settlement Agent to
record a conveyance deed transferring the Parked Property at close from Seller,
as grantor, to LLC, as grantee. All bills of sale, tenant lease assignments,
general assignments and similar closing documents referenced in the Purchase
Agreement must be signed by Seller for the direct benefit of LLC.
3. Exchanger's
Release and Indemnity. During
such time as NSHE continues as the sole member of LLC, Exchanger releases,
discharges, holds harmless and indemnifies LLC from and against any claim,
demand, liability, loss, damage, cost, or expense (collectively, "Claim") in
connection with any matter relating to the Parked Property or any term,
condition, or instrument referred to in this Assignment or the Purchase
Agreement or otherwise relating to the Purchase Agreement. The provisions set
forth in
1
this
paragraph 3 will survive the closing and the recording of any conveyance deed or
other instrument in connection therewith.
4. Exchanger's
Obligations.
Exchanger is and will remain solely responsible and liable to Seller for the
performance of every warranty and obligation of Exchanger under the Purchase
Agreement. The assignment set forth in Section 1 above does not affect, limit,
modify or impair in any way
the
representations, warranties, covenants or indemnifications made by Exchanger or
the obligations of Exchanger under the Purchase Agreement, which will continue
to the benefit of Seller. Nothing set forth in this Assignment in any way
releases Exchanger from any of Exchanger's obligations, liabilities,
indemnifications, covenants, representations or warranties (whether express,
implied in fact or implied at law) made under the Purchase Agreement for the
benefit of Seller, or under any documents signed in connection with the Purchase
Agreement for the benefit of Seller.
5. Counterparts. This
Assignment may be signed in counterparts or by facsimile, each of which will be
considered an original, but all of which, when taken together, will constitute
one instrument.
6. Litigation. If
litigation is commenced between the parties regarding this Assignment, the
prevailing party will be entitled, in addition to such other relief as may be
granted, to reasonable attorney's fees and costs at trial and on
appeal.
[signatures
on following page]
2
EXCEPT AS
EXPRESSLY MODIFIED OR AMENDED IN THIS ASSIGNMENT, ALL TERMS AND CONDITIONS IN
THE PURCHASE AGREEMENT REMAIN UNCHANGED.
EXCHANGER: | ||
Xxxxxxx
Properties L.P., a Maryland limited partnership | ||
By: |
Xxxxxxx
Properties, Inc., a Maryland corporation | |
By: |
/s/
Xxxxxx X. Xxxxx | |
Name:
Xxxxxx X. Xxxxx | ||
Its:
Executive Vice President & CFO | ||
LLC: | ||
Xxxxxxx
Properties - San Diego Tech Center, LLC, a Delaware limited liability
company | ||
By: |
National
Safe Harbor Exchanges, a California
corporation | |
Its: |
Sole
Member | |
By: |
/s/
Xxxx Xxxxxxx | |
Name: |
Xxxx
Xxxxxxx | |
Its: |
Assistant
Vice President | |