ASSIGNMENT OF LEASE
THIS
ASSIGNMENT OF LEASE (“Agreement”)
is made and entered into as of the 28th day of August, 2007 (“Effective Date”),
by and between One World Energy Corporation, (“Assignee”), and Xxxx Energy, LLC
(“Assignor”) (hereinafter together sometimes referred to as “the
Parties”).
RECITALS:
WHEREAS,
Assignor, as lessee, has executed that certain Lease, dated August 06, 2006
(“Banning 1”), covering those certain premises and related improvements
described on Exhibit A attached hereto (the “Premises”).
WHEREAS,
Assignor desires to assign its rights as lessee in the Lease to Assignee, and
Assignee desires to accept the assignment of the Lease and to assume the
obligations of Assignor under the Lease, on the terms and conditions set forth
in this Agreement.
NOW,
THEREFORE, in consideration for for promises and conditions contained in this
Agreement, with the parties intending this Assignment to be legally binding,
Assignor and Assignee hereby agree as follows:
1. Assignment
and Assumption of Lease. Subject to the provisions of this
Agreement, Assignor does hereby assign, transfer, set over and deliver to
Assignee all of its right, title and interest in and to the Lease, and by
accepting this assignment and by the execution of this Agreement, Assignee
hereby assumes the payment and performance of, and agrees to pay, perform and
discharge, as a direct obligation of Assignee, all of Assignor’s duties and
other obligations under the terms, covenants and conditions of the Lease,
including, without limitation, the payment of rent and compliance with all
terms, covenants and conditions of the Lease. Except as otherwise
expressly provided in this Agreement, all the terms, covenants and conditions
of
the Lease remain in full force and effect as applied to Assignee.
2. Consideration. Assignor
shall receive, as consideration for entering into this Agreement, the sum of
one
dollar ($1.00) per ton produce from the Banning 1 Lease.
3. Restrictions. The
assignment of the Lease is made subject, subordinate and inferior to any
easements, covenants and other matters and exceptions of record or apparent
as
of the date of this Agreement.
4. “AS
IS”. ASSIGNEE ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF,
THAT, EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, ASSIGNOR IS ASSIGNING THE
LEASE AND DELIVERING THE PREMISES “AS IS, WHERE IS” AND IN ITS PRESENT CONDITION
WITH ALL FAULTS, AND THAT ASSIGNOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS
OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED,
ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT
TO
THE STATUS, NATURE, QUALITY OR CONDITION OF THE LEASE OR THE LEASED
PREMISES.
5. Indemnification.
A. Assignee
hereby agrees to indemnify, defend and hold harmless Assignor from any and
all
costs, liabilities, losses, damages, expenses, liens or claims (including,
without limitation, reasonable attorneys’ fees and costs) arising out of or
relating in any way to the Lease except to the extent they arise from any
failure by Assignor to perform its duties or other obligations under the terms,
covenants and conditions of the Lease prior to the Effective Date.
B. Assignee
further agrees to protect, indemnify and hold harmless Assignor and its
officers, employees, representatives, agents, fiduciaries, attorneys, directors,
shareholders, insurers, predecessors, parents, affiliates, benefit plans,
successors, heirs and assigns from and against any and all costs, liabilities,
losses, damages, expenses, liens or claims (including, without limitation,
reasonable attorneys’ fees and costs) directly or indirectly arising out of or
attributable to the acts or omissions of Assignee or its agents, contractors,
servants or employees with respect to Premises or any activities
thereon. This indemnity shall survive the termination of the Lease
and this Agreement.
6. No
Partnership. The relationship of the parties hereto is solely
that of Assignor and Assignee with respect to the Premises and no joint venture
or other partnership exists between the parties hereto. Neither party
has any fiduciary relationship hereunder to the other.
7. Notice. Any
notices required or permitted to be given hereunder shall be given in writing
and shall be delivered (a) in person, (b) by certified mail, postage
prepaid, return receipt requested, (c) by facsimile, or (d) by a
commercial overnight courier that guarantees next day delivery and provides
a
receipt, and such notices shall be addressed as follows:
If
to
Assignee:
0000 X. Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxx 00000
Attention:
Ash
Xxxxxxxxxxx
If
to
Assignor: 0000
X. Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxx 00000
Attention:
Ash
Xxxxxxxxxxx
or
to
such other address as either party may from time to time specify in writing
to
the other party. Any notice shall be effective only upon delivery,
which for any notice given by facsimile shall mean notice, which has been
received by the party to whom it is sent as evidenced by confirmation
slip.
8. Entire
Agreement. This Agreement constitutes the entire agreement of the
parties pertaining to its subject matter and supersedes any prior or
contemporaneous negotiations, representations, agreements and understandings
of
the parties with respect to such matters, whether written or
oral. The parties acknowledge that they have not relied on any
promise, representation or warranty, expressed or implied, not contained in
this
Agreement. Parol evidence will be inadmissible to show agreement by
and among the parties to any term or condition contrary to or in addition to
the
terms and conditions contained in the Agreement. As between Assignor
and Assignee, in the event of any conflict or discrepancy between the Lease
and
this Agreement, the provisions of this Agreement shall control.
9. Interpretation;
Amendment. In interpreting the language of this Agreement, all
parties to this Agreement shall be treated as having drafted this Agreement
after meaningful negotiations. The language in this Agreement shall
be construed as to its fair meaning and not strictly for or against either
party. This Agreement may be modified only by a writing signed by
each party.
10. Attorneys’
Fees. If any party hereto fails to perform any of its obligations
under this Agreement or if a dispute arises between the parties hereto
concerning the meaning or interpretation of any provision of this Agreement,
and
an action is filed, the prevailing party in any such action shall be entitled
to
recover from the other party, in addition to any other relief that may be
granted, its court costs and reasonable attorneys’ fees and disbursements,
including such incurred in connection with any appeal.
11. Counterparts. This
Agreement may be signed in counterparts and all counterparts so executed shall
constitute one contract, binding on the all parties hereto, even though all
parties are not signatory to the same counterpart.
12. Binding
Effect. This Agreement shall be binding on and inure to the
benefit of the parties hereto, their heirs, executors, administrators,
successors in interest and assigns.
13. Governing
Law. This Agreement is governed by and construed in accordance
with the laws of the State of Pennsylvania.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
ASSIGNEE:
ASSIGNOR:
One
World
Energy
Corporation Xxxx Energy,
LLC
/s/ Xxxxxx
Xxxxxxxxxxx /s/
Xxxxxx
Xxxxxxxxxxx
___________________________ ___________________________
Xxxxxx
Xxxxxxxxxxx,
CEO Xxxxxx Xxxxxxxxxxx,
Manger
