ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated January 13, 1999
By
and
Among
XXXX X. XXXX,
ESTATE OF XXXXX X. XXXXXX, DECEASED,
and
XXXXXX XXXXXX XXXXXXX
as tenants in common
and
CAVALIER MANUFACTURING, INC.
(Cavalier Homes of Alabama Division)
a Delaware corporation
and
CAVALIER REAL ESTATE CO., INC.
a Delaware corporation
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT is made and entered into this
13, day of January, 1999 by and among XXXX X. XXXX, ESTATE OF XXXXX X. XXXXXX,
Deceased, AND XXXXXX XXXXXX XXXXXXX, as tenants in common, as assignors
(collectively the "Assignors"), CAVALIER MANUFACTURING, INC. (Cavalier Homes of
Alabama Division), a Delaware corporation, formerly known as Cavalier Homes of
Alabama, Inc. ("Cavalier Manufacturing") and CAVALIER REAL ESTATE CO., INC., a
Delaware corporation, as assignee (the "Assignee").
Recitals
Pursuant to the Constitution and laws of the State of Alabama, The
Industrial Development Board of the Town of Addison has heretofore issued
revenue bonds to finance the acquisition and construction of an industrial
project (the "Project") on and including the real property described on Exhibit
A hereto and has heretofore leased the Project to the Assignors pursuant to
Lease Agreement dated as of June 1, 1984, recorded in Volume 275 at Page 376 in
the Office of the Judge of Probate of Winston County, Alabama (the "Lease
Agreement").
The Assignors have heretofore exercised the option to renew the term of
the Lease Agreement pursuant to Section 9.2 of the Lease Agreement.
The Assignors have heretofore subleased the Project to Cavalier
Manufacturing pursuant to Commercial Sub-Lease dated July 30, 1996, as amended
by Addendum to Commercial Sub-Lease dated March 31, 1997 (the "Sublease").
The Assignors and Cavalier Manufacturing desire to terminate the
Sublease for the purpose of transferring the interests of the Assignors in and
to the Project and the Lease Agreement to the Assignee.
The Assignors desire to assign and transfer, and the Assignee desires
to acquire and assume, as provided herein, all right, title and interest of the
Assignors in and to the Project and the Lease Agreement and the obligations of
the Assignors with respect thereto.
Agreement
NOW THEREFORE, in consideration of the premises and of the payment of
ten dollars ($10.00) and other good and valuable consideration by the Assignee
to the Assignors, the receipt and sufficiency of which is hereby acknowledged,
and in consideration of the mutual promises, covenants and undertakings
contained herein, the Assignors and Cavalier Manufacturing and the Assignee
hereby agree as follows:
Section 1. Cavalier Manufacturing hereby (a) exercises the option set
forth in paragraph 4(f) of the Sublease for the purchase price set forth in
paragraph 4(a) of the Sublease, (b) waives and releases all rights and
privileges of Cavalier Manufacturing set forth in paragraphs 4(c) and 4(d) of
the Sublease, and (c) directs the assignment and conveyance by the Assignors of
all right title and interest of the Assignors in and to the Project and the
Lease Agreement to the Assignee.
Section 2. The Assignors, for themselves and their respective
successors and assigns, hereby assign, sell, transfer, set over and convey to
the Assignee all of the rights, title and interests of the Assignors in and to
(1) the real property and personal property described on
Exhibit A hereto, and
(2) the Project (as defined in the Lease Agreement), and
(3) the Lease Agreement, the leasehold interest created
thereby, and all rights, privileges and options (including without
limitation each of the options set forth in Article IX of the Lease
Agreement), of the lessee set forth therein, and
(4) all rights as a named insured under any policy of title
insurance with respect to the Project.
Section 3. The Assignee, for itself and its successors and assigns,
hereby accepts the aforesaid transfer, sale, conveyance and assignment of said
rights, title, interests, privileges and options to it in accordance with
Section 1 hereof and in consideration therefor hereby assumes and agrees to duly
and punctually observe and perform all obligations, covenants, liabilities and
restrictions as lessee under the Lease Agreement from and after the date hereof.
Section 4. Each of the Assignors does hereby represent, warrant,
covenant and agree that the execution and delivery of this Agreement and
compliance with the provisions thereof will not conflict with, or constitute on
the part of the Assignors a breach of or default under, any indenture, mortgage,
deed of trust, agreement, contract or other document or instrument to which such
Assignor is a party or by which such Assignor is bound or any existing law,
rule, regulation, judgment, order or decree to which such Assignor is subject.
Section 5. The Assignee agrees that from and after the date hereof the
Assignors shall have no liability or obligation to or for the benefit of the
Assignee for performance of the Lease Agreement or any provision thereof and the
Assignee shall defend, indemnify and save harmless the Assignors from and
against any and all claims, causes of action, judgments, damages, fines,
penalties, and other losses, costs and expenses, including without limitation
reasonable attorneys' fees and costs of investigation and litigation, asserted
against or suffered by the Assignors and their respective successors and
assigns, that are related to or arise out of, or result from, or are based upon,
the observance or performance of any provision of the Lease Agreement, including
without limitation the presence of any pollutants, contaminants, toxic or
hazardous wastes, or other substances regulated by law or which might create a
hazard to health and safety, which at any time from and after the date hereof
are deposited or released on, under or included in the Project and any clean up
or other remedial action with respect to any thereof, and the violation of any
law, rule, regulation, order, ruling, notice or decree of any governmental
authority relating to pollution or the protection of human health or the
environment (specifically including any liabilities under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sections 9601 et seq.) or claims based upon state or common law theories
such as trespass or nuisance. The provisions of this Section 5 shall remain in
full force and effect until commencement of an action with respect to any such
event or non-event or occurrence or non-occurrence shall be prohibited by law.
Section 6. Cavalier Manufacturing agrees that from and after the date
hereof the Assignors shall have no liability or obligation to or for the benefit
of Cavalier Manufacturing for performance of the Sublease or any provision
thereof and Cavalier Manufacturing shall defend, indemnify and save harmless the
Assignors from and against any and all claims, causes of action, judgments,
damages, fines, penalties, and other losses, costs and expenses, including
without limitation reasonable attorneys' fees and costs of investigation and
litigation, asserted against or suffered by the Assignors and their respective
successors and assigns, that are related to or arise out of, or result from, or
are based upon, the observance or performance of any provision of the Sublease,
including without limitation the presence of any pollutants, contaminants, toxic
or hazardous wastes, or other substances regulated by law or which might create
a hazard to health and safety, which at any time from and after the date hereof
are deposited or released on, under or included in the Project and any cleanup
or other remedial action with respect to any thereof, and the violation of any
law, rule, regulation, order, ruling, notice or decree of any governmental
authority relating to pollution or the protection of human health or the
environment (specifically including any liabilities under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sections 9601 et seq.) or claims based upon state or common law theories
such as trespass or nuisance. The provisions of this Section 6 shall remain in
full force and effect until commencement of an action with respect to any such
event or non-event or occurrence or non-occurrence shall be prohibited by law.
Section 7. The Assignee agrees that the Assignors make no warranty,
either express or implied, or offer any assurances, that the Project will be
adequate for the purposes or needs of the Assignee with respect thereto.
Section 8. The Assignee has been provided with and has reviewed the
Lease Agreement and consents and agrees to the terms thereof.
Section 9. The Assignors and Cavalier Manufacturing hereby cancel,
terminate and discharge the Sublease save and excepting any agreement or
obligation of Cavalier Manufacturing to indemnify the Assignors, which
agreements and obligations shall survive such termination and remain in full
force and effect until commencement of an action based thereupon shall be
prohibited by law, and Cavalier Manufacturing does hereby waive and release any
and all claims against the Assignors for payment or performance of any
obligation or agreement thereunder.
Section 10. Cavalier Manufacturing and the Assignee each hereby
represents and warrants that (a) the execution and delivery of this Agreement
and compliance with the provisions hereof will not conflict with, or constitute
on the part of such person a breach of or default under (i) its articles of
incorporation or (ii) any indenture, mortgage, deed of trust, commitment,
agreement or other instrument to which such person is a party or by which it is
bound, or (iii) any existing law, rule, regulation, judgment, order or decree to
which such person is subject, and (b) the operations of the Assignee (i) are
consistent with and in furtherance of the purposes of the Enabling Law (as
defined in the Lease Agreement) and (ii) will preserve the character of the
Project as a "project" under the Enabling Law (as defined in the Lease
Agreement).
Section 11. The Assignors and Cavalier Manufacturing and the Assignee
hereby covenant and agree each for the benefit of the other that (a) this
Agreement has been delivered in, and shall be governed by and construed in
accordance with the laws of, the State of Alabama; (b) all covenants, promises
and agreements in this Agreement contained by or on behalf of the Assignors, or
by or on behalf of Cavalier Manufacturing and the Assignee, shall bind and inure
to the benefit of their respective successors, assigns, heirs, administrators
and executors, as the case may be, whether or not so expressed; (c) this
Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall constitute one and the same instrument; and (d)
if any provision in this Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or in any way impaired thereby.
IN WITNESS WHEREOF, the Assignors have executed this Assignment and
Assumption Agreement under seal and Cavalier Manufacturing and the Assignee have
each caused this Assignment and Assumption Agreement to be executed in its name,
under seal, and the same attested, by officers thereof duly authorized
thereunto, and the Assignors and Cavalier Manufacturing and the Assignee have
caused this Assignment and Assumption Agreement to be dated as of the date and
year first above written.
/S/ XXXX X XXXX (L.S.)
---------------------------------------------
Xxxx X. Xxxx
/S/ XXXXXX XXXXXX XXXXXXX (L.S.)
---------------------------------------------
Xxxxxx Xxxxxx Xxxxxxx
Estate of Xxxxx X. Xxxxxx, Deceased
By /S/ XXXXXX X. XXXXXX (L.S.)
-------------------------------------------
Xxxxxx X. Xxxxxx, Co-Executor
By /S/ XXXXX X. XXXXXXXX (L.S.)
-------------------------------------------
Xxxxx X. Xxxxxxxx, Co-Executor
CAVALIER REAL ESTATE CO., INC.
By /S/ XXXXXXX X. XXXXXX
------------------------------------------
Its President
------------------------------------------
SEAL
Attest: /S/ XXXXXXX X. XXXXXX
-------------------------------
Its: Secretary
-----------------------
CAVALIER MANUFACTURING, INC.
(Cavalier Homes of Alabama Division)
By /S/ XXXXX X. XXXXXXXX
-----------------------------
Its President
-----------------------------
SEAL
Attest: /S/ XXXXXXX X. XXXXXX
--------------------------------
Its: Secretary
--------------------------
CONSENT AND RELEASE
The Industrial Development Board of the Town of Addison does hereby
represent, covenant and agree that (1) The Industrial Development Board of the
Town of Addision has received a copy of the foregoing Assignment and Assumption
Agreement, does hereby consent to the assignment of the leasehold interests of
the Assignors (as defined in the said Assignment and Assumption Agreement) in
and to the property and Lease Agreement referenced in said Assignment and
Assumption Agreement to the Assignee (as defined in said Assignment and
Assumption Agreement) and will deal with the Assignee, as lessee under the Lease
Agreement, for all purposes of the Lease Agreement, (2) The Industrial
Development Board of the Town of Addison does hereby release and discharge each
of the Assignors from the observance and performance of all obligations of the
lessee arising on and after the date hereof under the Lease Agreement and any
other document executed in connection with the Lease Agreement, and (3) the
Assignors have heretofore properly exercised the option to renew the term of the
Lease Agreement pursuant to Section 9.2 thereof for a renewal term expiring on
midnight of May 31, 2024 and the Lease Agreement is in full force and effect and
the Board has not declared any default thereunder.
IN WITNESS WHEREOF, The Industrial Development Board of the Town of
Addison has caused this instrument to be executed in its name, under seal, and
the same attested, by officers thereof duly authorized thereunto as of the date
of the acknowledgement hereof.
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE TOWN OF ADDISON
By: /S/ XXXXXXX SUDDERT
-----------------------------
Its: Chairman
-----------------------------
S E A L
Attest: /S/ XXXX XXXXX
----------------------------
Its: Secretary
----------------------
STATE OF ALABAMA )
)
WINSTON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxx X Xxxx, an individual, is signed to the
foregoing Assignment and Assumption Agreement and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
Assignment and Assumption Agreement, he executed the same voluntarily.
Given under my hand and seal this the 11th day of January, 1999.
/S/ XXXXXXX XXXXXXXXX
--------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: January 15, 2001
-------------------
STATE OF ALABAMA )
)
WINSTON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxxx Xxxxxx Xxxxxxx, an individual, is signed to
the foregoing Assignment and Assumption Agreement and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
Assignment and Assumption Agreement, he executed the same voluntarily.
Given under my hand and seal this the 12th day of January, 1999.
/S/ XXXXXXX XXXXXXXXX
-------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: January 15, 2001
------------------------
STATE OF ALABAMA )
)
WINSTON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxxx X. Xxxxxx, whose name as Co-Executor of the
Estate of Xxxxx X. Xxxxxx, Deceased, is signed to the foregoing Assignment and
Assumption Agreement and who is known to me, acknowledged before me on this day
that, being informed of the contents of said Assignment and Assumption
Agreement, (s)he executed the same voluntarily acting in such capacity as
Co-Executor of the Estate of Xxxxx X. Xxxxxx, Deceased.
Given under my hand and seal this the 11th day of January, 1999.
/S/ XXXXXXX XXXXXXXXX
--------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: January 15, 2001
------------------------
STATE OF ALABAMA )
)
WINSTON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxx X. Xxxxxxxx, whose name as Co-Executor of the
Estate of Xxxxx X. Xxxxxx, Deceased, is signed to the foregoing Assignment and
Assumption Agreement and who is known to me, acknowledged before me on this day
that, being informed of the contents of said Assignment and Assumption
Agreement, (s)he executed the same voluntarily acting in such capacity as
Co-Executor of the Estate of Xxxxx X. Xxxxxx, Deceased.
Given under my hand and seal this the 13th day of January, 1999.
/S/ XXXXXXX XXX XXXXXXX
---------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: 2-4-2001
------------------
STATE OF ALABAMA )
)
WINSTON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxxxx X. Xxxxxx, whose name as President of
Cavalier Real Estate Co., Inc., a Delaware corporation, is signed to the
foregoing Assignment and Assumption Agreement and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
Assignment and Assumption Agreement, he, as such officer and with full
authority, executed the same voluntarily for and as the act of said corporation
acting as office of such limited corporation as aforesaid.
Given under my hand and seal this the 13th day of January, 1999.
/S/ XXXXXXX XXX XXXXXXX
---------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: 2-4-2001
------------
STATE OF ALABAMA )
)
WINSTON COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that Xxxxx X. Xxxxxxxx, whose name as President of
Cavalier Manufacturing, Inc. (Cavalier Homes of Alabama Division), a Delaware
corporation, is signed to the foregoing Assignment and Assumption Agreement and
who is known to me, acknowledged before me on this day that, being informed of
the contents of said Assignment and Assumption Agreement, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation acting as office of such limited corporation as aforesaid.
Given under my hand and seal this the 13th day of January, 1999.
/S/ XXX XXX XXXXXX
-----------------------------
Notary Public
NOTARIAL SEAL
My commission expires: 7-13-99
---------------
Exhibit A
to
Assignment and Assumption Agreement
By and Among
Xxxx X. Xxxx,
Estate of Xxxxx X. Xxxxxx, Deceased,
and
Xxxxxx Xxxxxx Xxxxxxx
and
Cavalier Manufacturing, Inc.
(Cavalier Homes of Alabama Division)
and
Cavalier Real Estate Co., Inc.
--------------------------------------------------------------------------------
The descriptions of the real and personal property referenced herein
appear on the following pages.
