CONDITIONAL ASSIGNMENT OF CONTRACT
THIS CONDITIONAL ASSIGNMENT OF CONTRACT (the "Assignment") is made as
of this _____ day of April, 1998, by and between:
ASSIGNOR: PARKBRIDGE CAPITAL GROUP,INC.
00000 Xxxxxx Xxxxx Xx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, President
Phone: (000) 000-0000; Fax (000) 000-0000
ASSIGNEE: COMMUNITY ACQUISITION AND DEVELOPMENT CORPORATION
0000 XxXxxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, President
Phone: (000)000-0000 Fax: (000)000-0000
W I T N E S S E T H
WHEREAS, Assignor has heretofore entered into a Purchase Agreement With
Escrow Instructions with Brentwood West Partners L.L.P., a registered Arizona
limited liability partnership, ("Owner") dated as of the 14th day of April,
1998, and as may be amended subsequently with the prior, written approval of
Assignee (collectively, the "Contract"). A complete current copy of the Contract
has heretofore been delivered to Assignee and a copy of the executed document
without exhibits is attached hereto and identified as Exhibit "A"; and
WHEREAS, pursuant to the terms of the Contract, Chicago Title Insurance
Company ("CTIC"), a Missouri corporation, through its office located at 0000
Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attn: Xxx Xxxxxx, shall
function as the escrow agent under the Contract ("Escrow Agent"); and
WHEREAS, pursuant to the terms of the Contract, Assignor (or its
assignee) agreed to purchase the real property described therein located in
Maricopa County, Arizona (the "Real Property") and associated personal property,
contracts, leases, licenses, permits and similar property (collectively, with
the Real Property, the "Property"); and
WHEREAS, Assignor has agreed to assign its rights under the Contract to
Assignee, and Assignee has agreed to the Assignment, subject to the conditions
herein; and
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WHEREAS, the parties desire to memorialize their mutual understanding
pursuant to the terms and conditions contained herein.
NOW THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) in hand paid by Assignee to Assignor, the receipt of which is hereby
acknowledged by Assignor, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee
do hereby agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein by reference.
2. Conditional Assignment of Contract. Assignor hereby grants,
bargains, sells, assigns, transfers and sets over unto Assignee the Contract for
the purchase of the Property described therein, together with all of the
Assignor's rights, privileges, duties and obligations set forth therein, subject
to and conditioned upon Assignee's fulfillment of all of the requirements set
forth both herein and in the "Special Requirements" attached hereto as Exhibit
"B" and incorporated herein by reference. Assignee hereby accepts this
Assignment subject to and conditioned upon Assignor's fulfillment of all of the
requirements set forth both herein and in the "Special Requirements" attached
hereto as Exhibit "B" and incorporated herein by reference. By the execution of
this Assignment, Assignor does transfer and set over unto Assignee all of its
right, title and interest in and to any xxxxxxx money heretofore paid by
Assignor under the terms of the Contract.
3. Consideration. In consideration of Assignor's assignment of the
Contract, Assignee shall:
a. pay (or cause to be paid) to Assignor an amount
(the "Assignment Fee") equal to $525,000.00 in cash, or in operating partnership
units of Assignee's affiliate/subsequent assignee, or a combination of both;
b. pay in a timely fashion directly to Escrow Agent
all deposits required under the Contract, or reimburse (or cause to be
reimbursed) Assignor for all deposits, if any, heretofore posted or deposited by
Assignor pursuant to the Contract, including those with Escrow Agent (all such
amounts, collectively, the "Contract Deposits").
Assignee's obligation to pay the Assignment Fee and
to reimburse any of the Contract Deposits made by Assignor, if any, shall be
conditioned upon the closing of the Property transfer to the Assignee under the
Contract. If the Contract is terminated by Assignee, then Assignee shall be
under no obligation to pay the Assignment Fee and Assignor shall be under an
obligation to return to Assignee the Contract Deposits made by Assignee to
Escrow Agent if returned to Assignor rather than Assignee.
4. Payment of Consideration. The Contract Deposits and the Assignment
Fee shall be paid by Assignee as follows:
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a. The Contract Deposits shall be paid directly to
Escrow Agent as follows:
i. $200,000.00 representing the Initial
Xxxxxxx Money under the Contract within three (3) business days after the
Contract is executed by both parties thereto. Such Initial Xxxxxxx Money Deposit
shall be sent to Escrow Agent with written notice that it is sent on behalf of
Assignor pursuant to this Assignment and that notice with respect to possible
return of such Initial Xxxxxxx Money Deposit will be sent by Assignee or
Assignor pursuant to this Assignment if Assignee is not satisfied with the
condition of the Property; and
ii. $300,000.00 representing the Additional
Xxxxxxx Money under the Contract upon the expiration of the Study Period (as
defined in the Contract), assuming Assignee is satisfied with the condition of
the Property.
b. The Assignment Fee shall be payable on the closing
of the Property transfer to the Assignee under the Contract.
5. Termination of Assignment and Contract; Limited Power of Attorney.
If, during the first fifteen (15) days of the Study Period, Assignee determines
that it does not want to acquire the Property pursuant to the Contract and this
Assignment, Assignee shall immediately notify Assignor that Assignee desires to
terminate the Contract and this Assignment and thereafter Assignor shall have
five (5) days within which either to:
(a) pay Assignee the full amount of the Initial Xxxxxxx Money plus
accrued interest held by Escrow Agent and reassume the role as Buyer under the
Contract, including credit for the Initial Xxxxxxx Money held by Escrow Agent;
or
(b) notify Escrow Agent and Owner that the Assignor, as Buyer under the
Contract, cancels the Contract, and request immediate return of the Initial
Xxxxxxx Money plus accrued interest (but less the $100.00 Fair Consideration as
defined in the Contract) to Assignee (or if Owner or Escrow Agent requires - to
Assignor - for immediate transfer to Assignee).
If Assignor elects to proceed under (a) above, Assignee shall sign whatever
additional document may be reasonably required by Assignor or a third party to
transfer the Initial Xxxxxxx Money left with Escrow Agent into Assignor's name
following or simultaneous with clearance of full replacement funds being
delivered to Assignee.
Upon transfer of the Initial Xxxxxxx Money to Assignor as provided in (a) above
or termination of the Contract as provided in (b) above, this Assignment shall
automatically terminate and the parties shall have no further obligations to the
other hereunder or under the Contract.
In connection with this Assignment and the Contract, Assignor hereby makes,
appoints and constitutes Assignee as its irrevocable, true and lawful
attorney-in-fact, and grants Assignee a limited power of attorney for the
purpose of executing any documents necessary to evidence or fulfill any
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obligation of Assignor provided or granted in this Assignment and the Contract,
including specifically notifying Owner and Escrow Agent on its behalf of a
termination of the Contract, which appointment and grant is coupled with an
interest and is irrevocable during the term of the Assignment. Any person
dealing with Assignee shall be entitled to rely conclusively on any written or
oral statement of Assignee that this limited power of attorney is in effect.
6. Representations, Warranties and Covenants of Assignor.
(a) Assignor represents and warrants that it is a valid Oregon
corporation, in good standing under the laws of the State of Oregon, and that
Assignor has the power and authority to contract for the purchase of the
Property described in the Contract and to execute this Assignment to Assignee.
(b) Assignor warrants that there has been no other assignment,
pledge, transfer, hypothecation, encumbrance, or other transfer of the rights of
the Assignor in and to the Contract, and in and to the Property described
therein.
(c) Assignor represents that it knows of no conditions, either
physical or legal, nor of any hidden defects, which would prevent the Assignee
from utilizing the Property to be purchased under the Contract for the purpose
stated therein or herein.
(d) Assignor represents and covenants that it will direct
Owner immediately to send all Property Documents (as defined in the Contract)
and similar due diligence materials directly to Assignee for review and will, to
the extent required by Owner, execute any receipts therefor on behalf of
Assignor and Assignee. Assignor further represents and covenants that it will
immediately forward any additional Property Documents and similar due diligence
materials sent by Owner to Assignor both before and after the date hereof and
will collaborate with Assignee in furnishing any response or assurance required
by Owner with respect to the use and disposition of such material.
(e) All covenants, conditions and agreements to be performed
by Assignor under the Contract have been performed or will be performed as
required therein, except those which are not to be performed until after the
date hereof, including delivery of the Initial Xxxxxxx Money as defined in the
Contract, which will be performed by Assignor or Assignee pursuant to the terms
of this Assignment.
7. Representations, Warranties and Covenants of Assignee.
(a) Assignee represents and warrants that it is a valid
Delaware corporation, in good standing under the laws of the State of Delaware
and qualified to do business in the State of Florida, and that Assignee has the
power and authority to execute this Assignment with Assignor and to complete the
purchase from Owner of the Property described in the Contract pursuant to the
terms of the Contract and this Assignment.
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(b) All covenants, conditions and agreements to be performed
by Assignor under the Contract will be performed by Assignee as required therein
and herein, including disposition of the Property Documents and other
Confidential Information as required under the Contract.
8. Transfer of Other Documents. In addition to the assignment of the
Contract, the Assignor does grant, bargain, sell, assign transfer and set over
unto the Assignee any and all other documents it may have procured from any
source subsequent or prior to the execution of the Contract involving the
Property described therein, including, without limitation, surveys, title
insurance, title searches or title commitments, zoning change applications, and
any and all permits that may have been issued by any governmental authority in
regard to the Property described in the Contract.
9. Transfer of Title. Assignor does hereby authorize Assignee to notify
Owner to make, execute and deliver to Assignee a good and sufficient Warranty
Deed to the Real Property described in the Contract and an Owner's Title
Insurance Policy upon the closing of the Contract as called for therein and
herein, and the parties hereto agree that said Deed shall be conveyed from Owner
to Assignee with the same power and effect as if executed between Owner and
Assignor.
10. Governing Law; Venue. This Assignment has been executed in part and
delivered in the State of Florida and shall be construed and enforced in
accordance with, and be governed by the laws of the State of Florida, and shall
be enforceable, at the option of Assignee, in a court of competent jurisdiction
in Pinellas County or Hillsborough County, Florida, notwithstanding that this
Assignment involves a contract covering property located in the State of
Arizona.
11. Severance. The invalidity or unenforceability of any portion of
this Agreement shall in no wise affect the remaining provisions and portions
hereof.
12. Successors and Assigns; Binding Effect. This Assignment shall bind
and inure to the benefit of the successors and assigns of the parties hereto.
Assignee specifically reserves the right to further assign its rights and
obligations under this Assignment without the consent of Assignor, but with
notice to Assignor and, as needed, to Owner and Escrow Agent.
13. No Recording; Publication. Neither this Assignment nor any
memorandum thereof shall be recorded in the Public Records of Maricopa County,
Arizona or elsewhere without the prior written consent of both parties;
provided, however, that a copy of this Assignment may be provided by either
party to Owner or Escrow Agent (or to a third party who is relying upon the
power-ofattorney provision herein) for purposes of confirming the assignment of
the Contract to Assignee or the powers of Assignor and Assignee hereunder to
terminate the Contract, etc., and a copy may be filed in any proceeding to
enforce the terms hereof. If Assignor does not want the consideration provisions
hereof, i.e. paragraphs 4 and 15, disclosed to Owner or another third party,
Assignor shall deliver two (2) or more originals of a modified/redacted
memorandum version of this Assignment to Assignee, executed by Assignor, within
ten (10) days of the date hereof for execution by Assignee and use as desired by
the parties. Such modified version shall not supersede this Assignment, but
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shall function merely as a memorandum of the other substantive provisions of
this Assignment for delivery to third parties.
14. Notices. Any notice, request, demand, instruction or other document
to be given hereunder or pursuant hereto shall be in writing and (I) personally
delivered, or (ii) delivered by facsimile transmission, or (iii) delivered by
overnight courier service, or (iv) sent by registered or certified mail, postage
prepaid, return receipt requested, to the addresses listed in the
Preamble/Recitals of this Assignment. Notice shall be deemed to have been
delivered upon receipt by, or (if by United States mail) 72 hours after deposit
in the United States mail as provided above addressed to, each addressee
provided for above to whom a copy of such notice is to be given.
15. Brokers and Finders. Assignor shall be responsible for commissions
payable to Saguaro Properties, Inc., in the amount of $262,500.00 (to be divided
pursuant to separate agreement between them), which shall be payable upon
payment to Assignor of the total Assignment Fee. Each party agrees to indemnify
and hold the other harmless from and against any loss, damage, or expense
resulting from any claim by any other person, firm or corporation based upon
their having acted as a broker or finder for or in connection with the
transactions contemplated by the Contract and this Assignment for or at the
request of such indemnifying party.
16. Prevailing Party. In the event of any litigation with respect to
this Assignment, the party hereto who does not prevail shall be responsible for
all costs (e.g., court costs, attorneys' fees (including upon appeal(s),
damages, etc.) incurred by the prevailing party.
17. Further Action. The parties each agree to execute such further
documents and to take such further action as may be necessary or desirable to
effectuate the intents and purposes of this Assignment and consummate the
transaction contemplated herein.
18. Construction; Captions. Whenever the context so requires, the
singular number shall include the plural, and the masculine, feminine and neuter
genders shall include the other or others. The paragraph captions used
throughout this Assignment are for the purpose of reference only and are not to
be considered in the construction of this Assignment or in the interpretation of
the rights or obligations of the parties hereto.
19. Entire Agreement; Amendment. It is agreed that this document
contains the entire agreement between the parties and the Assignment shall not
be modified in any respect except by an amendment in writing signed by all
parties hereto.
20. Counterparts; Facsimile Signatures. This document may be executed
in counterparts each of which, when assembled and conformed, shall be an
original Assignment. The parties agree that this document and other instruments
and notices described herein may be executed by them in facsimile shall
constitute original signatures and shall be binding on the party so signing and
shall be accepted by the receiving party provided an original of such signature
is provided within a reasonable time thereafter.
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21. Time. Time is of the essence of this Assignment and each provision
hereof.
22. Covenants and Conditions. Each provision of this Assignment
performable by Assignor and Assignee shall be both a covenant and a condition.
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals the day and year first above written.
Witnesses: ASSIGNOR:
___________________________ PARKBRIDGE CAPITAL GROUP, INC.,
Print Name:________________ an Oregon corporation
___________________________ By:____________________________
Print Name;________________ Xxxx X. Xxxxxxxx, President
ASSIGNEE:
___________________________
Print Name:_______________ COMMUNITY ACQUISITION AND
DEVELOPMENT CORPORATION,
a Delaware corporation
__________________________
Print Name:_______________ By:_____________________________
Name:_______________________
Title:______________________
STATE OF __________
COUNTY OF__________
The foregoing instrument was sworn to and acknowledged before me this
_____ day of _______________, 1998, by _______________, as _______________ of
PARKBRIDGE CAPITAL GROUP,INC., an Oregon corporation, on behalf of said
corporation. He/She is personally known to me or has produced
______________________________ as identification.
My Commission Expires: _______________________________
Print Name:____________________
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NOTARY PUBLIC
STATE OF ______________
COUNTY OF______________
The foregoing instrument was sworn to and acknowledged before me this
_____ day of _______________, 1998, by _______________, as _______________ of
COMMUNITY ACQUISITION AND DEVELOPMENT CORPORATION, a Delaware corporation, on
behalf of said corporation. He/She is personally known to me or has produced
______________________________ as identification.
My Commission Expires:
___________________________
Print Name:_________________
NOTARY PUBLIC
EXHIBIT "B"
SPECIAL REQUIREMENTS
This Assignment shall become unconditional and absolute following the
earlier to occur of any of the following:
(a) The end of twenty (20) days of the Study Period (or such later date
that is five (5) days following written notice from Assignee to Assignor that
Assignee does not want to acquire the Property pursuant to the Contract and this
Assignment), assuming Assignee has notified Assignor that Assignee does not want
to acquire the Property; or
(b) If no such notice of termination is sent by Assignee to Assignor,
upon expiration of the Study Period under the Contract and payment of the
Additional Xxxxxxx Money by Assignee to Escrow Agent under the Contract; or
(c) At any time, at Assignees's sole election, if Assignee waives the
conditions and accepts the Property and Contract "as is" in a written notice to
Assignor.
Upon this Assignment becoming absolute pursuant to the terms hereof,
Assignee shall notify Owner and Escrow Agent that the Contract has been assigned
completely to Assignee and that Assignee will be the party thereafter, as Buyer
under the Contract, determining whether the Contract will be terminated or
closed. In particular, if Assignee delivers written notice to Assignor of
Assignee's desire to terminate the Contract during the Study Period, but
Assignor refuses or fails to so notify Escrow Agent and Owner in a timely manner
prior to the end of the Study Period, Assignee shall have the absolute right to
notify Escrow Agent and Owner of such termination on its own behalf and as
attorney-in-fact for Assignee during the Study Period.
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