Exhibit 10.6
ASSIGNMENT AND ASSUMPTION AGREEMENT
[Amended and Restated]
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THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (Amended and Restated) (this
"Assumption Agreement") is made by and between Grand Oaks Development, LLC, a
South Carolina limited liability company (the "Assignor"), and Enclaves of Grand
Oaks LLC, a South Carolina limited liability company (the "Assignee") and
subsidiary of Enclaves Group, Inc., a Delaware corporation (the "Contract
Purchaser"):
IN CONSIDERATION of the sale and transfer as of December 9, 2005, of
the Property (or the Assignor's contracts to acquire the Property) described in
the Sale Contract (described below), the parties hereto enter into this
Assignment and Assumption Agreement and represent, warrant, and covenant as
follows:
1. The Contract Purchaser hereby assigns to the Assignee all right,
title, and interest in that certain Purchase and Sale Agreement dated as of
October 20, 2005 (the "Sale Contract"), by and between the Assignor as "Seller"
and the Contract Purchaser as "Purchaser", with the consent of the Assignor.
2. The Assignor as "Seller" under the Sale Contract hereby acknowledges
and credits to the Assignee as ▇▇▇▇▇▇▇ money deposits thereunder the sum of
Three Hundred Fifty Thousand Dollars ($ 350,000).
3. The Assignor as "Seller" and the Assignee as "Purchaser" under the
Sale Contract each hereby acknowledges the release of the conditions to Closing
set forth in sections 9 (c) (Zoning and Plat Approval), 9 (f) (Seller Lender
consent), and 9 (g) (Land Development Agreement.
4. The Assignee further agrees to pay to the order of South Carolina
Development Partners LLC, a South Carolina limited liability company and
affiliate of Assignor, a separate fee of Three Hundred Thousand Dollars ($
300,000), in consideration of its consent to transfer of the subject property,
to be paid upon the first to occur of (i) the initial funding obtained by the
Contract Purchaser under the "equity line" described in its SB-2 registration
statement filed with the Securities and Exchange Commission on November 29,
2005, (ii) the refinancing of any real property project by Contract Purchaser or
its subsidiaries (to the extent of net cash proceeds available), (iii) the
initial construction draw under the Assignee's construction financing for the
Project, and (iv) March 31, 2006; which fee shall bear interest on the
outstanding balance from the date of the transfer of the Property to the date of
payment and be evidenced by a promissory note of Contract Purchaser and
Assignee.
5. In consideration of an option fee in the amount of Two Million
Fifteen Thousand Dollars ($ 2,015,000) to be paid in full at Closing in
immediately available funds, the Assignee as successor "Purchaser" under the
Sale Contract hereby grants and assigns to the Assignor, or to the order of its
designee, the right and option (without any obligation to exercise), to
Assignment and Assumption Agreement Grand Oaks Development, LLC
(Amended and Restated) Enclaves of Grand Oaks LLC
Enclaves Group, Inc
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repurchase building lots, or portions of the Property, upon designation by the
Assignee of any Lots or Property portions it does not intend to hold for
development and construction of an "Enclaves" community housing project, for a
fixed repurchase price equal to the product of (i) the sum of (A) the Assignee's
pro rata acquisition costs for such repurchased property, (B) together with the
Assignee's pro rata costs to hold, maintain, and finance such repurchased
property from the date hereof to the date of repurchase, (C) together with the
Assignee's pro rata development costs for such repurchased property from the
date hereof to the date of repurchase, and (ii) an amount equal to ten percent
(10 %) per annum on the sum of the amounts in (i) (A), (B), and (C) from the
date incurred to the date of repurchase; provided that the Owner and the
Assignor shall enter into a separate option agreement setting forth the terms
and conditions of notice and exercise of the foregoing right and option. The
right and option to purchase must be renewed, if not exercised in writing on or
before the last day of the month of Closing, by the delivery of a monthly
renewal fee of Ten Thousand Dollars ($ 10,000) in immediately available funds to
the order of Assignee, and the last day of each month during any renewal period,
or this right and option shall expire without notice or opportunity to cure.
7. This Assumption Agreement: (i) contains the entire understanding
between the parties hereto with respect to the Property and the Sale Contract
and is intended to be an integration of all prior or contemporaneous agreements,
conditions, or undertakings between the parties hereto and there are no
promises, agreements, conditions, undertakings, warranties, or representations,
oral or written, express or implied, between and among the parties hereto with
respect to the Property or Sale Contract other than as set forth herein; (ii)
shall not be amended or modified except by written instrument signed by each
party thereto; and (iii) may be executed in several counterparts, each of which
shall be deemed and original and all of which together shall constitute but one
instrument; the parties may exchange and rely upon counterparts delivered by
facsimile transmission or PDF-format documents.
[Signatures of parties commence on next succeeding page.]
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Assignment and Assumption Agreement Grand Oaks Development, LLC
(Amended and Restated) Enclaves of Grand Oaks LLC
Enclaves Group, Inc
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IN WITNESS WHEREOF THE parties to the foregoing Assignment and
Assumption Agreement (Amended and Restated) have executed this instrument as of
the day and year last subscribed below.
ASSIGNOR:
GRAND OAKS DEVELOPMENT, LLC
Date: December 16, 2005 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (SEAL)
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Manager
ASSIGNEE:
ENCLAVES OF GRAND OAKS LLC
By: Enclaves Group, Inc.
Its: Managing Member
Date: December 16, 2005 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President and CEO
CONTRACT PURCHASER:
ENCLAVES GROUP, INC.
Date: December 16, 2005 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President and CEO
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