ASSIGNMENT AND ASSUMPTION AGREEMENT
EXECUTION
COPY
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is entered into as of
April 19, 2007 by and between SDS Capital Group SPC, Ltd. (“Assignor”), and
Universal Property Development & Acquisition Corporation (“Assignee”),
pursuant to that certain Note Purchase Agreement (the “Note Purchase Agreement”)
dated as of April 19, 2007 by and among Assignor, BayStar Capital II, L.P.,
and
the Assignee. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Note Purchase Agreement.
BACKGROUND
The
Assignor and Assignee have entered into the Note Purchase Agreement pursuant
to
which the Assignor has agreed to transfer, assign, convey and set over unto
the
Assignee all of Assignor’s respective rights, title and interest in the Notes
held by Assignor and the SDS Security Agreement.
Pursuant
to the terms and conditions of the Note Purchase Agreement, Assignee has agreed
to accept such assignment and to assume and agree to perform, pay, observe,
fulfill and discharge any obligations under the Notes and the SDS Security
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and in the Note Purchase Agreement, the parties hereto, intending to
be
legally bound, agree as follows:
1. Assignment.
Subject
to the terms and conditions of the Note Purchase Agreement, Assignor hereby
transfers, assigns, conveys and sets over unto Assignee all of Assignor’s
respective rights, title and interest in the Notes held by the Assignor (as
reflected on Schedule 2.1 to the Note Purchase Agreement) and the SDS
Security Agreement.
2. Assumption.
Subject
to the terms and conditions of the Note Purchase Agreement, Assignee hereby
accepts such assignment and does hereby assume and agree to perform, pay,
observe, fulfill and discharge any obligations under the Notes held by the
Assignor and the SDS Security Agreement in accordance with the terms of the
Note
Purchase Agreement.
3. No
Amendment to Notes or SDS Security Agreement.
This
Agreement shall not alter, modify or amend the terms of the Notes or the SDS
Security Agreement in any respect other than to transfer the obligations
thereunder to Assignee, nor shall it subject Assignee to any greater
liabilities, obligations or duties in connection therewith than would have
been
enforceable against Assignor.
4. No
Additional Representations and Warranties.
Nothing
contained in this Agreement shall be construed to limit or expand the
representations, warranties and covenants set forth in the Note Purchase
Agreement. In the event of any conflict or inconsistency between the terms
of
the Note Purchase Agreement and the terms of this Agreement, the terms of the
Note Purchase Agreement will govern.
5. Further
Assurances.
Subject
to the terms and conditions of the Note Purchase Agreement, Assignor shall,
at
any time and from time to time, at the request of Assignee, execute and deliver
to Assignee all other and further instruments as are reasonably necessary to
vest in Assignee full right, title and interest in or to the Notes and the
SDS
Security Agreement, in each case as contemplated by the Note Purchase
Agreement.
6. Binding
Effect.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
7. Governing
Law.
This
Agreement is made pursuant to, and shall be governed by and interpreted in
accordance with, the laws of the State of Delaware without regard to otherwise
applicable principles of conflicts of laws.
8. Amendments.
This
Agreement cannot be amended, supplemented or modified except by a writing which
makes specific reference to this Agreement, and which is signed by the party
against which enforcement of any such amendment, supplement or modification
is
sought.
9. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be
deemed an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. A facsimile or electronic copy of this document
shall have the same force and effect as the original.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first above written.
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ASSIGNOR
SDS
CAPITAL GROUP SPC, LTD.
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Name:
Title:
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ASSIGNEE
UNIVERSAL
PROPERTY DEVELOPMENT & ACQUISITION CORPORATION
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Name:
Title:
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