Amended and Restated Assignment and Assumption Agreement among Grand Oaks Development, LLC, Enclaves of Grand Oaks LLC, and Enclaves Group, Inc.

 Exhibit 10.6 ASSIGNMENT AND ASSUMPTION AGREEMENT [Amended and Restated] - -------------------------------------------------------------------------------- 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 earnest 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 - -------------------------------------------------------------------------------- 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.] 2  Assignment and Assumption Agreement Grand Oaks Development, LLC (Amended and Restated) Enclaves of Grand Oaks LLC Enclaves Group, Inc - -------------------------------------------------------------------------------- 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/ Richard J. deGorter (SEAL) -------------------------------- Richard J. deGorter Manager ASSIGNEE: ENCLAVES OF GRAND OAKS LLC By: Enclaves Group, Inc. Its: Managing Member Date: December 16, 2005 By: /s/ Daniel G. Hayes (SEAL) -------------------------------- Daniel G. Hayes Its: President and CEO CONTRACT PURCHASER: ENCLAVES GROUP, INC. Date: December 16, 2005 /s/ Daniel G. Hayes (SEAL) ------------------------------------ Daniel G. Hayes Its: President and CEO 3