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EXHIBIT 10.5
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ASSIGNMENT AND ASSUMPTION OF LEASE
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ASSIGNMENT AND ASSUMPTION OF LEASE, dated June 24, 1999 (the
"Assignment"), by and among Xxx X. Xxxxxx (the "Assignor"), Dominion Homes,
Inc., an Ohio corporation ("Assignee"), and BRC Properties Inc., an Ohio
corporation (formerly known as "Xxxxxx Realty Company" and "The Borror
Corporation," "Landlord").
W I T N E S S E T H:
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WHEREAS, Landlord and Xxxxxx X. Xxxxxx ("Original Tenant") entered into
that certain Lease Agreement, dated November 12, 1997 (the "Lease Agreement"),
with respect to certain property located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxx,
Xxxx (the "Premises"); and
WHEREAS, Original Tenant, Assignor and Landlord entered into that
certain Lease Assignment, executed on or about October 2, 1998, pursuant to
which Original Tenant assigned the Lease Agreement to Assignor; and
WHEREAS, Assignor desires to assign the Lease Agreement to Assignee;
and
WHEREAS, the Lease Agreement provides, among other things, that the
Lease Agreement shall not be assigned without the prior written consent of
Landlord;
NOW, THEREFORE, in consideration of the foregoing and the provisions
set forth below, the parties agree as follows:
1. Effective as of August 31, 1999 (the "Effective Date"), Assignor
assigns to Assignee all of Assignor's right, title and interest in and to the
Lease Agreement, including all rights to the One Thousand and 00/100 Dollar
($1,000.00) security deposit provided to Landlord pursuant to Section 49 of the
Lease Agreement. Assignor shall deliver possession of the Premises to Assignee
on or before the Effective Date.
2. Assignor covenants, warrants and represents to Assignee that: (a)
the Lease Agreement is in full force and effect; (b) Assignor has performed, and
will continue to perform up to and including the Effective Date, all of
Assignor's obligations under the Lease Agreement; (c) Assignor has full right
and power to execute, deliver and perform this Assignment; (d) no defaults or
events of default have occurred and are continuing under the Lease Agreement;
and (e) the Lease Agreement has not been modified, supplemented or amended.
3. As of the Effective Date, Assignee assumes and agrees to be bound by
and pay and perform all of the obligations, terms, covenants and conditions
under the Lease
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Agreement which, pursuant to the Lease Agreement, are to be observed, kept
and/or performed by Assignor on and after the Effective Date.
4. Prior to delivering possession of the Premises to Assignee, Assignor
shall remove all equipment and trade fixtures of Assignor from the Premises in
accordance with the terms and conditions of the Lease Agreement, and Assignor
shall cause the Premises to be in a "broom clean" condition at the time Assignor
delivers possession of the Premises to the Assignee.
5. In consideration of the assignment of the Lease Agreement by the
Assignor to Assignee, and subject to the last sentence of this Section 5,
Assignee shall pay Assignor Twenty Thousand and 00/100 Dollars ($20,000.00) as
follows: (a) Ten Thousand and 00/100 Dollars ($10,000.00) shall be paid to
Assignor by Assignee on the date all parties hereto have duly executed this
Assignment; and (b) Ten Thousand and 00/100 Dollars ($10,000.00) shall be paid
to Assignor by Assignee on the date Assignor delivers possession of the Premises
to Assignee (the "Second Installment"). Notwithstanding the foregoing, Assignee
shall have no obligation to deliver the Second Installment to Assignor in the
event that Assignor fails to deliver the Premises to Assignee on or before the
Effective Date.
6. The amounts to be paid by Assignee to Assignor pursuant to Section 5
above may be offset for any costs or expenses incurred by Assignee arising,
directly or indirectly, as a result of Assignor's breach of any of the
provisions of this Assignment.
7. Landlord hereby consents to this Assignment, and the transactions
contemplated hereby, and further consents to Assignee's use of the Premises as a
real estate sales and training center and also for general office purposes.
Except with respect to Assignor's duties and obligations under this Assignment,
Landlord hereby releases Assignor from any and all obligations under the Lease
Agreement, effective as of the Effective Date.
8. Assignee's obligations under this Assignment and the Lease Agreement
are expressly conditioned on all of Assignor's covenants, warranties and
representations contained in Section 2 above being true and correct on and as of
the Effective Date.
9. This Assignment shall be binding upon and shall inure to the benefit
to the parties hereto and their successors and permitted assigns. This
Assignment constitutes the entire agreement of the parties with respect to the
subject matter hereof and may not be modified or amended except by a writing
signed by all parties hereto. The provisions of this Assignment shall survive
the closing of the transactions contemplated hereby.
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[SIGNATURES CONTAINED ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption of Lease as of the date first above written.
SIGNED IN THE PRESENCE OF: ASSIGNOR:
Traz Xxxxxx /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Xxxxx Xxxxxx
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(Witnesses as to Assignor)
ASSIGNEE:
Xxxxxx Xxxxx DOMINION HOMES, INC.
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Xxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
(Witnesses as to Assignee) Xxxxx X. Xxxxxx, Senior Vice President
LANDLORD:
BRC PROPERTIES INC.
(formerly known as "Xxxxxx Realty
Xxxxxx Xxxxx Company" and "The Borror Corporation")
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Xxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxxx
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(Witnesses as to Landlord) Xxxxxxxx X. Xxxxxx, Vice President
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