Exhibit 10(x)(1)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("ASSIGNMENT"), effective on
April 1, 2004 ("EFFECTIVE DATE"), is executed by INNOVATIVE DEVELOPMENT
ENTERPRISES, INC., a California corporation ("ASSIGNOR"), XXXXXXXX EDC, LLC, a
Delaware limited liability company ("ASSIGNEE") and XXXXXXXX, INC., a Delaware
corporation ("ORIGINAL Buyer"), with reference to the following facts:
RECITALS
A. Pursuant to a Real Estate Purchase and Sale Agreement and
Joint Escrow Instructions ("PURCHASE AGREEMENT") dated October 25, 2002,
Original Buyer, contracted to purchase certain real property ("PROPERTY") owned
by Assignor, located in the City of Oceanside, County of San Diego, State of
California, more particularly described in the Legal Description annexed as
EXHIBIT "A" to this Assignment.
B. Original Buyer has assigned to Assignee all of Original
Buyer's rights under and in accordance with the Purchase Agreement and Assignee
has assumed of the obligations of the Original Buyer under the Purchase
Agreement.
C. As a condition to such purchase, Assignor has agreed to
transfer and assign Assignor's interest in certain plans and specifications,
warranties and guarantees, and governmental permits and approvals relating to
the Property.
NOW, THEREFORE, in consideration of the mutual covenants set forth in
the Purchase Agreement, and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment. Assignor hereby assigns and transfers, to the
extent of Assignor's assignable interest, to Assignee, as of the Effective Date
and Assignee hereby assumes, as of the Effective Date, any and all obligations
of Assignor to be performed after the Effective Date, with respect to:
(a) All of Assignor's right, title and interest in and to
the permits, entitlements, rights and approvals issued by the City of Oceanside
("CITY") and any other governmental authorities in connection with the
construction, operation and use of the Property and all improvements thereon;
(b) All of Assignor's right, title and interest in and to
all plans and specifications relating to the Improvements (as defined in the
Purchase Agreement) and, on a non-exclusive basis with Assignor reserving rights
therein to the extent necessary for Assignor to perform its warranty obligations
under the Purchase Agreement, all warranties and guarantees provided under the
terms of any contract or subcontract for construction of all or any portion of
the Improvements; provided, however, such assignment does not include any claims
or demands that Assignor may have arising on account of a default under any such
warranties and/or guaranties prior to the Effective Date, or any rights of
Assignor to indemnification from the person(s) issuing warranties or guaranties
arising prior to the Effective Date";
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(c) All of Assignor's right, title and interest in and to
all soils tests, appraisals, engineering reports and similar materials relating
to any or all of the Property; and
(d) All of Assignor's right, if any, to enforce any
assignable warranties of Xxxx Ranch Development Company, LLC under that certain
Purchase Agreement and Escrow Instructions dated October 25, 2002 between
Assignor and Xxxx Ranch Development Company, LLC, pursuant to which Assignor
purchased the land included in the Property being conveyed to Assignee; this
assignment is being made pursuant to Section 13.7(e) of the Purchase Agreement
and such assignment being without representation or warranty by Assignor.
2. Effective Date of Assignment. The Assignment shall take effect
on the Effective Date set forth above, which is the date of recordation of the
Grant Deed conveying the Property from Assignor to Assignee.
3. General Provisions.
(a) Attorneys' Fees. In the event of any legal action or
proceeding between the parties in connection with this Assignment, the
prevailing party shall be entitled to recover from the losing party all of its
costs and expenses, including court costs and reasonable attorneys' fees.
(b) Governing Law. This Assignment shall be governed,
construed and enforced in accordance with the laws of the State of California.
(c) Notice. Notice to either party shall be in writing,
addressed to the party to be notified at the address specified herein, and
either (a) personally delivered, (b) sent by an overnight courier service such
as Airborne, Federal Express, or Purolator, (c) sent by first-class mail,
registered or certified mail, postage prepaid, return receipt requested, or (d)
sent by telecopier with written confirmation of receipt requested. Any such
notice shall be deemed received: (a) on the date of receipt if personally
delivered; (b) on the date of receipt as evidenced by the receipt provided by an
overnight courier service, if sent by such courier; or (c) three (3) business
days after deposit in the U.S. Mail, if sent by mail.
Assignor's Address for Notice:
Innovative Development Enterprises, Inc.
Attn: Xxxxxxx X. Xxxxxx
000 Xxxxxxx Xxx
Xx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Assignee's Address for Notice:
Xxxxxxxx EDC, LLC.
Attn: Xxxxx Xxxx
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
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With a copy to:
Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx LLP
Attn: Xxxxx X. Xxxxxxxx, Esq.
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either party may change its address for notice by delivering written
notice to the other party as provided herein.
(d) Successors. This Assignment shall be binding on and inure to
the benefit of the parties and their respective heirs, legal representatives,
successors, and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
and Assumption Agreement to be effective as of the Effective Date set forth
above.
ASSIGNEE:
XXXXXXXX EDC, LLC,
a Delaware limited liability company
By: /s/ Xxxxx Xxxx
-----------------------------------------
Title: VP Finance
By:_________________________________________
Title:______________________________________
ORIGINAL BUYER:
XXXXXXXX, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxx
-----------------------------------------
Title: VP Finance
By:_________________________________________
Title:______________________________________
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ASSIGNOR:
I
INNOVATIVE DEVELOPMENT ENTERPRISES,
INC., a California corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx, President
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EXHIBIT "A"
Legal Description
All that portion of Xxx 00 xx Xxxxx Xxxxx Xxxxx-0X, in the City of Oceanside,
County of San Diego, State of California, as per the Map thereof No. 14329,
filed in the Office of the County Recorder of San Diego on December 28, 2001,
lying easterly of the following described line:
Commencing at the most southerly corner of said Lot 18, said corner also being
on the northwesterly right-of-way line of Ocean Ranch Boulevard, 84.00 feet
wide, as shown on said map; thence along said right-of-way line North 60 degress
56'00 East 75.60 feet to a line parallel with and 75.60 feet northeasterly of
the southwesterly line of said Xxx 00 xxx xxx Xxxx Xxxxx xx Xxxxxxxxx; thence
along said parallel line North 29 degrees 04'00" West 739.98 feet to the
northerly line of said Lot 18.
Said parcel is shown as Parcel 2 of a Certificate of Compliance recorded at the
request of the City of Oceanside on March 12, 2003 as Instrument No.
2003-0280480 of Official Records.
The foregoing metes and bounds legal description is a separate legal lot and
comprises the entirety of Lot 18 as it exists as of the date of this Policy.
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EXHIBIT "A" TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
