Exhibit 10.1
ASSIGNMENT AND ASSUMPTION
OF
AGREEMENT FOR SALE AND PURCHASE OF
PROPERTY
This Assignment and Assumption of
Agreement for Sale and Purchase of Property (
“Assignment” ) is entered into between KBS
Capital Advisors LLC, a Delaware limited liability company (
“Assignor” ), and KBS Legacy Partners Dakota
Hill LLC, a Delaware limited liability company (
“Assignee” ), as of August 5, 2010 (the
“Effective Date” ).
RECITALS
A. Pursuant
to the terms of that certain Agreement for Sale and Purchase of
Property dated as of the 31 st day of March, 2010, that certain First Amendment
to Agreement for Sale and Purchase of Property dated as of
May 25, 2010, that certain Second Amendment to Agreement for
Sale and Purchase of Property dated as of June 10, 2010, that
certain Third Amendment to Agreement for Sale and Purchase of
Property dated as of July 2, 2010, that certain Fourth
Amendment to Agreement for Sale and Purchase of Property dated as
of July 12, 2010, that certain Fifth Amendment to Agreement
for Sale and Purchase of Property dated as of July 15, 2010,
and that certain Sixth Amendment to Agreement for Sale and Purchase
of Property dated as of August 3, 2010, each as previously
assigned pursuant to that certain Assignment and Assumption of
Agreement for Sale and Purchase of Property by and between KBS
Realty Advisors, LLC and Assignor of even date herewith (the
“Prior Assignment” and collectively, the
“Purchase Agreement” ), Assignor agreed to
acquire the Property (as such term is defined in the Purchase
Agreement) commonly referred to as the Dakota Hill Apartments in
Irving, Texas subject to and in accordance with the terms of the
Purchase Agreement.
B. Assignor
desires to assign, without recourse, representation or warranty,
all of its rights, benefits, liabilities and obligations arising
under the Purchase Agreement (and related documents) to Assignee,
and Assignee desires to assume all of said rights, benefits,
liabilities and obligations.
NOW, THEREFORE, in
consideration of the foregoing promises, the mutual undertakings of
the parties set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties agree as
follows:
1.
Recitals . The above recitals are incorporated
herein by reference.
2.
Assignment and Assumption . Assignor hereby
transfers, assigns and conveys, without recourse, representation or
warranty, express or implied, the following to Assignee: i) all of
Assignor’s rights, interests, liabilities and obligations in
and to the Property, ii) all of Assignor’s rights, interests,
liabilities and obligations under the Purchase Agreement (and
related documents), and iii) all of Assignor’s rights in and
to the Earnest Money (as defined in the Purchase Agreement)
previously deposited into escrow by Assignor in accordance with the
terms of the Purchase Agreement. Assignee hereby assumes all such
rights, interests, liabilities and obligations, and joins in all
representations, warranties, releases, and indemnities, of Assignor
under the Purchase Agreement (and related documents) relating to
the Property, the Purchase Agreement (and related documents) and
the Earnest Money assigned to it above. Concurrent with the Closing
(as defined in the Purchase Agreement) or, in the event the
Purchase
1
Agreement is terminated and Assignee receives a
refund of the Earnest Money, Assignee will deliver to Assignor an
amount equal to the Earnest Money as reimbursement therefor and
concurrently therewith Assignor will use such funds to promptly
repay to KBS-Legacy Apartment Community REIT Venture, LLC (the
“Venture LLC” ) the $500,000 previously
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