1
EXHIBIT 10.04
STATE OF NORTH CAROLINA)
ASSIGNMENT OF CONTRACT FOR THE PURCHASE
COUNTY OF WAKE AND SALE OF REAL PROPERTY
This Assignment Of Contract For The Purchase And Sale Of Real Property (the
"Assignment") is made and entered into as of the Effective Date as set forth
in Paragraph 11 hereof, by and between XXXXXXX DEVELOPMENT, LLC, a North
Carolina Limited Liability Company, as Assignor, and DIVERSIFIED RESOURCES
GROUP, INC., a Utah Public Company, as Assignee.
WITNESSETH:
Whereas, Assignor has entered into that certain Contract For The Purchase And
Sale Of Real Property, dated April 8, 1999, [as amended by that certain First
Amendment To Contract For The Purchase And Sale Of Real Property dated
___________ 1999](collectively, the "Contract"), by virtue of which Assignor
agreed to purchase from PFC Falls, TIC ('PFC"), and PFC agreed to sell to
Assignor approximately 607.74 acres of real property located in Wake County,
North Carolina, which property is more fully described in the Contract (the
"Property");
WHEREAS, Assignor now desires to assign its rights and delegates its
obligations under the Contract to Assignee, and Assignee desires to accept
such assignment and delegation;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Assignment. Subject to the fulfillment by Assignee of its obligations
hereunder, Assignor does hereby sell, assign, transfer and convey to Assignee,
without recourse, all of Assignor's right and interest in and delegate all of
Assignor's obligations as Buyer under the Contract.
2. Acceptance and Assumption. By execution hereof, Assignee accepts such
assignment and assumes and agrees to faithfully perform all duties,
obligations and liabilities of Assignor under the Contract, including, but not
limited to, the obligation to pay the extension fees required by Paragraph 8
of the Contract, to pay the Purchase Price, and to faithfully perform all of
its obligations under this Assignment.
3. Notice To PFC. Within five (5) business days after execution of this
Assignment by both parties, Assignor shall give PFC notice of this Assignment
(without disclosing the terms thereof) as required by Paragraph 13(f) of the
Contract.
4. Consideration. As the consideration to be given by Assignee to Assignor for
this Assignment, Assignee agrees that:
a) Assignee shall pay to Assignor, at the time of Assignee's closing of its
purchase of the Property, the sum of Two Million Dollars ($2,000,000.00), by
wire transfer, official bank check, or other immediately available funds;
b) Assignee shall, at or prior to the time of Assignee's closing of its
purchase of the Property, enter into a Development Management Agreement with
Assignor, in the form attached hereto as Exhibit A and incorporated herein;
2
c) Assignee shall, at or prior to the time of Assignee's closing of its
purchase of the Property, enter into an Exclusive Listing Agreement with
Assignor, in the form attached hereto as Exhibit B and incorporated herein, by
virtue of which Assignor will pay Assignee a commission equal to five percent
(5%) of the gross sale price of any property within the Property sold by
Assignee to any third party, except the property sold to Ocean Golf Group, LLC
as provided in subparagraph e below.
d) Assignee shall, at or prior to the time of Assignee's closing of its
purchase of the Property, enter into an Performance Incentives Agreement with
Assignor, in the form attached hereto as Exhibit C and incorporated herein;
and
e) Assignee shall, at or prior to the time of Assignee's closing of its
purchase of the Property, enter into an Offer To Purchase And Contract with
Ocean Golf Group, LLC (the "Golf Group"), in the form attached hereto as
Exhibit (J) and incorporated herein, by virtue of which the Golf Group will
purchase and acquire from Assignee certain land within the Property.
f) At the time of closing of Assignee's acquisition of the Property, Assignee
shall pay to Assignor, or take such action as is necessary to cause the Escrow
Agent to release to Assignor, the $100,000.00 held by Escrow Agent as an
xxxxxxx money deposit to the Contract.
Each of the agreements described in subparagraphs b, c, d and e of this
Paragraph 4 shall be deemed coupled with an interest and may not be terminated
by Assignee for any reason absent Assignor's breach thereof.
5. Representations of Assignor. Assignor hereby represents and warrants to
Assignee as follows:
a) Assignor is a Limited Liability Company organized and in good standing
under the laws of the State of North Carolina.
b) Assignor's execution and delivery of this Assignment and its performance of
its obligations hereunder have been authorized by all necessary Company action.
The person signing this Assignment on behalf of the Company is duly authorized
to do so.
c) The Contract constitutes the entire agreement between Assignor and PFC
regarding the purchase and sale of the Property. The Contract is in full force
and effect and has not been modified or amended except as set forth in the
preamble hereof. Neither Assignor nor, to Assignor's knowledge, PFC is in
default under the Contract and, to Assignor's knowledge, no event has occurred
which, by the passage of time or otherwise, might result in a default under the
Contract by either Assignor or PFC.
e) Assignor has paid to Xxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx, P.A., as Escrow Agent,
the sum of $100,000.00 as an xxxxxxx money deposit under the Contract.
f) The Feasibility period set forth in the Contract has expired and Assignor has
informed PFC of its intent to proceed with the Contract.
6. Representations of Assignee. Assignee hereby represents and warrants to
Assignee as follows:
a) Assignor is a Public Company organized and in good standing under the laws of
the State of Utah and is authorized to conduct business in the State of North
Carolina.
3
Assignee's execution and delivery of this Assignment and the performance of its
obligations hereunder have been authorized by all necessary Company action. The
person signing this Assignment on behalf of the Company is duly authorized to do
so.
7. Assignee's Failure To Close. If Assignee fails to close the purchase and sale
of the Property for any reason other than breach of the Contract by PFC or
Assignor's undisclosed breach of the Contract, and provided that Assignee is not
in default under this Assignment, Assignee shall reassign the Contract to
Assignor, deliver to Assignor, at no cost to Assignor, copies of all documents
and things obtained or generated by Assignee in furtherance of the Contract, and
pay to Assignor, as liquidated damages, the sum of $2,100,000.00, and, upon such
assignment, delivery, and payment, neither party shall have any further rights
or obligations hereunder.
If PFC breaches the Contract, Assignee, at its option, may either take all
necessary action to obtain specific performance of the Contract, in which event
this Assignment shall remain in full force and effect, or reassign the Contract
to Assignor, deliver to Assignor, at no cost to Assignor, copies of all
documents
and things obtained or generated by Assignee in furtherance of the Contract, and
pay to Assignor, as liquidated damages, the sum of $2,200,000.00, and, upon such
assignment, delivery, and payment, neither party shall have any further rights
or obligations hereunder.
8. Notices. Notices required or permitted to be given under this assignment
shall be in writing and may be: (i) hand delivered by the sender; (ii) sent by
nationally-recognized overnight courier service; or (iii) sent by certified or
registered mail, return receipt requested, and addressed as follows:
If intended for ASSIGNOR: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
If intended for ASSIGNEE: Xxxxxx 0. Xxxxxxxxxxx
Chairman/CEO
Diversified Resources Group, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
or to such other person and/or address as either party may provide to the other
in writing as provided herein for purpose of notice
A party sending any notice hereunder shall also send a copy to Escrow Agent, as
follows:
Xxxxxxx X. Xxxxx
Xxxxx, Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Any notice hand delivered or sent by courier service shall be deemed given and
received upon actual receipt. Notice mailed as above provided shall be deemed
given and received by the addressee on the third business day after the same is
posted.
9. Assignment. Assignee may not assign its rights and obligations under the
Contract or this Assignment to any person or entity other than Assignor without
the prior written consent of Assignor.
4
10. Construction. This Assignment is a North Carolina contract and shall be
interpreted and enforced in accordance with the laws of the State of North
Carolina. Any action to enforce this the provisions of this Assignment shall be
filed in a court of competent jurisdiction in Wake County, North Carolina.
This Assignment embodies the entire agreement between the parties hereto with
respect to the Property and the matters set forth herein. This Assignment can be
modified or amended only by a document duly executed on behalf of both of the
parties hereto.
The captions used herein are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of the intent of
this Assignment or any section thereof.
Unless the context clearly intends to the contrary, words singular or plural in
number shall be deemed to include the other and pronouns having a masculine or
feminine gender shall be deemed to include the other. The term person shall be
deemed to include an individual, corporation, partnership, trust, unincorporated
organization, government and governmental agency or subdivision, as the context
shall require.
Notwithstanding the presumption of law whereby an ambiguity or conflict in
provisions shall be construed against the drafter, the parties hereto hereby
agree that although one party may have generated this Assignment, each party has
been afforded the opportunity to consult with counsel of its own choosing, and
each has participated in the drafting of this Assignment. Therefore, such
presumption shall not be applied if any provision or term of this Assignment
requires judicial interpretation.
If any term, covenant or condition of this Assignment or the application thereof
to any person or Circumstance shall be determined to be invalid or
unenforceable,
the remainder of the Assignment or the application of such term or provision to
persons or circumstances, other than those to which it is held invalid or
unenforceable, shall not be affected thereby and each term shall be valid arid
enforceable to the fullest extent permitted by law, so long as such invalidity
does not materially adversely affect the consideration to be given by Assignee
to Assignor hereunder.
11. Effective Date. This Assignment shall become effective only upon execution
by both Assignor and Assignee. If this Assignment is not executed by Assignee
and
returned to Assignor by 5:00 p.m. or it shall be null and void and of no further
force and effect. The Effective Date of this Assignment shall be the last date
upon which it is signed by any of the signatories thereto, as shown by the date
of each party's execution set forth below.
IN WITNESS WHEREOF, the parties have each executed this Assignment under seal,
as of the day and year first above written.
ASSIGNOR: XXXXXXX DEVELOPMENT, LLC(Seal)
By:/S/ Xxxxx X. Xxxxxxx, Manager Date: [Sic]
ASSIGNEE: DIVERSIFIED RESOURCES GROUP, INC.
By: /S/ [Sic]
(Name) (Title) (Date)
