ASSIGNMENT AGREEMENT
Exhibit 10.5
This
Assignment Agreement (Agreement) is made as of the 28th day of April, 2009 by
and between Xxxxx Xxxxx and Associates, Inc., a Colorado Corporation, its
successors, affiliates, and assigns, Xxxxxx Xxxxxxxx an individual residing in
the State of Arizona, his successors, and assigns, (hereinafter all collectively
referred to as the "Assignor") and, Terrasol Holdings LTD, a Nevada Corporation
(“Assignee”), Sometimes referred to herein collectively as “the
parties”.
RECITALS
1.
Assignor is a party to a certain Exclusive Manufacturing Agreement dated the 1st
day of August, 2008, attached hereto as “Exhibit A” and incorporated herein by
reference.
3.
Assignor desires to sell the Assignee all of Assignor's right, title
and interest to the Agreement, a certain Exclusive
Manufacturing Agreement dated the 1st day of August, 2008, attached
hereto and incorporated herein by reference.
IT IS AGREED AS FOLLOWS:
1.
Assignment
of Exclusive Manufacturing Agreement:
A. Assignment: Assignor
assigns in full all of Assignor's right, title and interest in and to the a
certain Exclusive Manufacturing Agreement dated the 1st day of
August, 2008. Assignor will sign a Xxxx of Sale and Assignment in the
form attached as “Exhibit B” .
3.
Closing: This transaction
will close at on or before Tuesday, April 28th 2009. Assignee will
pay all costs of closing.
4.
Representations
of Assignor:
A. Assignor
is the legal and equitable exclusive holder of One Hundred Percent (100%) of all
rights granted under the Exclusive Manufacturing Agreement dated the
1st day of August, 2008 and has full power and authority to assign the Exclusive
Manufacturing Agreement dated the 1st day of August, 2008 at its sole
discretion, without prior notice or consent of any kind or nature, from any
person or entity, natural or unnatural.
B. Assignor
has not executed any prior assignment, pledge or any other document which
impairs Assignor's ability to assign in full all legal and equitable rights held
by Assignor in and to the Exclusive Manufacturing Agreement dated the
1st day of August, 2008
C. Assignor
has executed no release, discharge, satisfaction or cancellation of the
Exclusive Manufacturing Agreement dated the 1st day of August,
2008.
D. Assignor
has provided Assignee with true and correct copies of the Exclusive
Manufacturing Agreement dated the 1st day of August,
2008.
5. Counterparts. This Agreement may be
signed in one or more counterparts with the same effect as if the signatures to
each counterpart were upon a single instrument, and all suchcounterparts
together shall be deemed an original of this Agreement. Delivery of
an executed counterpart of the signature to this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this
Agreement.
6.
Choice
of Law; Venue; Jurisdiction; Attorneys’
Fees. The parties acknowledge
and agree that this Agreement has been made in Arizona, and that it shall be
governed by, construed, and enforced in accordance with the laws of
the State of Arizona, without reference to its conflicts of laws
principles. The parties also acknowledge and agree that any action or
proceeding arising out of or relating to this Agreement or the enforcement
thereof shall be brought in the Maricopa County Superior Court, and each of the
parties irrevocably submits to the exclusive jurisdiction of that Court in any
such action or proceeding, waives any objection the party may now or hereafter
have to venue or to convenience of forum, agrees that all claims in respect of
such action or proceeding shall be heard and determined only in that Court, and
agrees not to bring any action or proceeding arising out of or relating to this
Agreement or the enforcement hereof in any other court. The parties
also acknowledge and agree that either or both of them may file a copy of this
paragraph with any court as written evidence of the knowing, voluntary and
bargained agreement between the parties irrevocably to waive any objections to
venue or convenience of forum, or to personal or subject matter
jurisdiction. The parties also acknowledge and agree that any action
or proceeding referred to above may be served on any party anywhere in the world
without any objection thereto. The parties also acknowledge and agree
that the prevailing party in any such action or proceeding shall be awarded the
party’s reasonable attorneys’ fees and costs (including, but not limited to,
costs of court).
7.
Fair
Meaning.
The parties agree that the wording of this Agreement shall be construed as a
whole according to its fair meaning, and not strictly for or against any of the
parties to this Agreement, including the party responsible for drafting the
Agreement.
8.
Entire
Agreement. The parties declare and represent that no promise,
inducement or agreement not herein expressed has been made, and that this
Agreement constitutes the entire Agreement between the parties, and supersedes
all prior negotiations, proposed agreements, or understandings, if any, between
the parties concerning any of the provisions or contents of this
Agreement.
9.
Mutual
Drafting. The parties hereto
acknowledge and agree that they are sophisticated and have been represented by
attorneys who have carefully negotiated the provisions of this Agreement. As a
consequence, the parties also agree that they do not intend that the
presumptions of any laws or rules relating to the interpretation of contracts
against the drafter of any particular clause should be applied to this Agreement
and therefore waive their effect.
10.
Jurisdiction. Service of
Process. Any action or proceeding arising out of or relating to this
Agreement shall be governed by Section 6 of this Agreement, and each of the
parties irrevocably submits to the exclusive jurisdiction of each court
identified therein in any such action or proceeding; waives any objection the
party may now or hereafter have to venue or to convenience of forum; agrees that
all claims in respect of the action or proceeding shall be heard and determined
only in any such court; and agrees not to bring any action or proceeding arising
out of or relating to this Agreement or any transaction contemplated hereby in
any other court. The parties agree that either or both of them may
file a copy of this paragraph with any court as written evidence of the
knowing, voluntary and bargained agreement between the parties irrevocably to
waive any objections to venue or to convenience of forum. Process in
any action or proceeding referred to in the first sentence of this Section 10
may be served on any party anywhere in the world.
11.
Waiver;
Remedies Cumulative. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither any
failure nor any delay by any party in exercising any right power or privilege
under this Agreement will operate as a waiver of such right, power or privilege,
and no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. To the
maximum extent permitted by applicable law,
(i) no
claim or right arising out of this Agreement can be discharged by one party, in
whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party;
(ii) no
waiver that may be given by a party will be applicable except in the specific
instance in which it is given; and
(iii) no
notice or demand on one party will be deemed to be a waiver of any obligation of
that party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this
Agreement.
12.
Notices. All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be deemed given to a party when:
(i) delivered
by hand or by a nationally recognized overnight courier
service (costs prepaid),
(ii) sent
by facsimile with confirmation of transmission by the transmitting equipment,
or;
(iii) received
or rejected by the addressee, if sent by certified mail, postage prepaid and
return receipt requested, in each case to the following:
(i) if to
Assignor,
to: Xxxxx
Young and Associates, Inc.
0000-X Xxxxxx Xxxx
Xxxx,
Xxxxxx Xxxxxxxx,
00000
(ii) if
to Assignee,
to: Terrasol
Holdings Ltd.
000 Xxxxxxxxxx
Xxxxxx
Xxxxx #0000
Xxx Xxxxxxxxx, XX 00000
13. Binding
on Successors and Assigns. This Agreement shall be binding on and shall
inure to the benefit of each party, its successors, and assigns. This
Agreement and the rights and obligations hereunder shall not be assignable or
transferable by either party without the prior written consent of the other
party.
14. Third-Party
Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their permitted successors or assigns, and nothing herein
expressed or implied shall give or be construed to give to any person, other
than the parties hereto and such successors or assigns, any legal or equitable
rights, remedy or claim hereunder.
15. Severability. If any
provision of this Agreement or the application of any such provision to any
person or circumstance shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof.
16. Authority
of Signers. The
parties represent and warrant that the person whose signature is set
forth below on behalf of a party is fully authorized to execute this
Agreement on behalf of that party.
17. Amendment. No
amendment to this Agreement shall be effective unless it shall be in writing and
signed by the parties hereto.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
"ASSIGNOR"
XXXXX
XXXXX and ASSOCIATES, INC. A Colorado Corporation
EIN# 00-0000000
By:
XXXX XXX
XXXXXXXX
Xxxx
Xxx Xxxxxxxx
Its
President
"ASSIGNOR"
Xxxxxx
Xxxxxxxx, an Individual
By: XXXXXX
XXXXXXXX
Xxxxxx Xxxxxxxx
“ASSIGNEE”
TERRASOL
HOLDINGS LTD, a
Nevada Corporation
XXXXX
XXXXXXX
By: Xxxxx Xxxxxxx, President,
Director
