ASSIGNMENT AND ASSUMPTION
OF
PURCHASE CONTRACT
This ASSIGNMENT AND ASSUMPTION OF PURCHASE CONTRACT (the "Assignment") is
dated this 21st day of March, 2005 between MICRON REALTY LLC, a New York limited
liability company ("Assignor"), and First Union REIT L.P., a Delaware limited
partnership ("Assignee").
WITNESSETH:
WHEREAS, Assignor is a party to that certain Purchase and Sale Agreement,
dated March 10, 2005, between Amherst Investors Business Trust, a Delaware
business trust, as seller ("Amherst"), and Assignor, as purchaser (the
"Contract"), a true and correct copy of which is attached hereto as Exhibit A;
WHEREAS, Assignee desires to have the Contract assigned to it, and
Assignor desires to assign the Contract to Assignee, all on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of Ten Dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Contract.
2. Assignment. Assignor hereby assigns unto Assignee, all of its right,
title and interest, as purchaser, to the Contract, including without limitation,
the Initial Deposit.
3. Assumption. Assignee hereby assumes and agree to perform each and every
obligation under the Contract with respect to the purchaser accruing on and
after the date hereof.
4. Initial Deposit. Simultaneously with the execution of this Assignment
by Assignor and Assignee, Assignee shall reimburse Assignor $100,000,
representing the Initial Deposit, by wire transfer or certified check as
directed by Assignor.
5. Termination. (a) On or prior to Diligence Period. Assignee shall have
the right to terminate this Assignment at any time prior to April 8, 2005 by
giving written notice thereof to Assignor, and shall, if requested by Assignor,
reassign all right, title and interest in the Contract, including the Initial
Deposit, to Assignor in consideration for the payment of $100,000 by Assignor to
Assignee, and Assignee shall deliver to Assignor all third party reports
obtained by Assignee for the Property upon reimbursement by Assignor of the
costs of such reports.
(b) On or prior to Closing. Assignee shall have the right to
terminate this Assignment at any time prior to May 9, 2005 by giving written
notice thereof to Assignor, and shall, if requested by Assignor, reassign all
right, title and interest in the Contract, including the Initial Deposit and
Additional Deposit, to Assignor in consideration for the payment of $250,000 by
Assignor to Assignee, and Assignee shall deliver to Assignor all third party
reports obtained by Assignee for the Property.
It is understood and agreed that Assignee shall be responsible for all
costs and expenses associated with the due diligence and title searches incurred
by Assignee even in the event Assignee terminates this Assignment and that in
the event that Assignor elects to not have the Contract reassigned to it,
Assignee shall indemnify and save harmless Assignor from all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
judgments, suits, proceedings, costs, disbursements or expenses of any kind
whatsoever, including, without limitation, reasonable attorneys' fees and
experts' fees and disbursements, which may at any time be imposed upon, incurred
by or asserted or awarded against Assignee in favor of Amherst pursuant to the
terms of the Contract and arising solely out of Assignee's termination of the
Contract.
6. Representations and Warranties. Assignor and Assignee each hereby
represent, warrant and covenant to the other that:
(i) the execution and delivery of this Assignment and the
consummation of the transactions contemplated hereby to be performed by it
have been duly and validly authorized by all necessary action on its part
and no other proceedings on the part of such party is necessary to
authorize this Assignment or to consummate the transactions so
contemplated;
(ii) It has all requisite power and authority to execute and deliver
this Assignment, and to consummate the transactions hereby contemplated
and to take all other actions required to be taken by it pursuant to the
provisions hereof; and, this Assignment and all other documents and
agreements contemplated hereby are its legal, valid and binding
obligation, enforceable against it in accordance with their terms; and
(iii) no consent, approval, authorization or notification of, or
declaration, filing or registration with, any governmental entity is
required on behalf of or on the part of such party in connection with the
execution, delivery, or performance of this Assignment by such party.
Assignor further represents, warrants and covenants to Assignee that it is
the absolute owner of the purchaser's interest in the Contract, and that other
than this Assignment, there are no other pledges or assignments of the Contract.
7. Notices. All communications hereunder shall be in writing and shall be
sent either by facsimile (followed by regular mail), overnight mail, registered
or certified mail, return receipt requested; if intended for Assignee, shall be
addressed to it at Two Jericho Plaza, Wing A, Suite 111, Jericho, New York,
Facsimile No. (000) 000-0000, Attention: Xx. Xxxx Xxxx or at such other address
of which Assignee shall have given notice to other parties hereto in the manner
herein provided; if intended for Assignor shall be addressed to it at c/o GE
Equities Corp., 1701 Utica Avenue, Brooklyn, New York, Facsimile No. (718)
859-0524 Attention: Xxx Xxxxxxxxxx, with a copy to Xxxxxxx Xxxxxxx, Esq., 0000
00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Facsimile No. (000) 000-0000 or at such
other address of which Assignor shall have given notice to Assignee in the
manner herein provided.
8. No Modification Except in Writing. This Assignment shall not be
changed, modified, or amended except by a writing signed by the party to be
charged, and this Assignment may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
9 Further Assurances. Each of the parties hereto hereby agrees to execute
and deliver all such further documents and take all such further actions as
shall be necessary, desirable or expedient to consummate the transactions
contemplated hereby.
10. Entire Agreement. This Assignment sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of every kind
and nature among them.
11. Severability. If any provision of this Assignment or the application
of any provision hereof to any person or circumstances is held invalid, the
remainder of this Assignment and the application of such provision to other
persons or circumstances shall not be affected unless the provision held invalid
shall substantially impair the benefits of the remaining portions of this
Assignment.
12. Assignment. This Assignment may not be assigned by either party hereto
without the prior written consent of the other party; provided, however,
Assignee shall have the right to assign the Contract to a wholly owned
subsidiary.
13. Governing Law. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to the
conflict of laws principles thereof.
14. Captions. The captions appearing in this Assignment are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Assignment or any of the provisions
hereof.
15. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed an original.
16. No Broker. Assignor and Assignee each represents and warrants to the
other that no broker, finder or like agent brought about this assignment and
each party agrees to indemnify and hold harmless the other party from and
against a breach of the foregoing representation. This paragraph 16 shall
survive the closing or earlier termination of the Contract.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
the day and year first above written.
FIRST UNION REIT L.P.
By: First Union Real Estate Equity and
Mortgage Investments,
Its General Partner
By
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Xxxx Xxxx
Senior Vice President
MICRON REALTY LLC
By:
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