ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated January 13, 1999
By
and
Among
WINSTON
COUNTY INDUSTRIAL
DEVELOPMENT
ASSOCIATION
an Alabama general
partnership
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
13th day of January, 1999 by and among WINSTON COUNTY INDUSTRIAL DEVELOPMENT
ASSOCIATION, an Alabama general partnership, as Assignor (the "Assignor"),
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 acquired and
constructed an industrial project (the "Project") on and including the real
property described on Exhibit A hereto and has heretofore leased the Project to
the Assignor pursuant to the following Lease Agreements (collectively the
"Lease Agreement"): (i) Lease Agreement dated as of January 1, 1993, recorded in
Volume 321 at Page 558 et. seq. in the Office of the Judge of Probate of Winston
County, Alabama and (ii) Lease Agreement dated as of February 1, 1994 recorded
in Volume 333 at page 726 et seq. in said office.
The Assignor has heretofore subleased the Project to Cavalier
Manufacturing pursuant to Commercial Sub-Lease dated March 5, 1993 (the
"Sublease").
The Assignor and Cavalier Manufacturing desire to terminate the
Sublease for the purpose of transferring the interests of the Assignor in and to
the Project and the Lease Agreement to the Assignee.
The Assignor desires to assign and transfer, and the Assignee desires
to acquire and assume, as provided herein, all right, title and interest of the
Assignor in and to the Project and the Lease Agreement and the obligations of
the Assignor with respect thereto.
In consideration for such assignment and transfer, the Assignee shall,
simultaneously with the execution of this Agreement, execute and deliver a Bond
Guaranty Agreement with respect to the Bond.
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 Assignor, the receipt and sufficiency of which is hereby acknowledged,
and in consideration of the mutual promises, covenants and undertakings
contained herein, the Assignor 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 Assignor of
all right title and interest of the Assignor in and to the Project and the Lease
Agreement to the Assignee.
Section 2. The Assignor, for itself and its respective successors and
assigns, hereby assign, sell, transfer, set over and convey to the Assignee all
of the rights, title and interests of the Assignor 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 11 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. The Assignor 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
Assignor 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 the Assignor is bound or any existing law, rule, regulation,
judgment, order or decree to which the Assignor is subject.
Section 5. The Assignee agrees that from and after the date hereof the
Assignor 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 Assignor 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 Assignor and its 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 Assignor 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
Assignor 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 Assignor and its 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 Assignor makes 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 Assignor and Cavalier Manufacturing hereby cancel,
terminate and discharge the Sublease save and excepting any agreement or
obligation of Cavalier Manufacturing to indemnify the Assignor, 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 Assignor 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 organizational
documents (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 Assignor 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 Assignor, 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 Assignor has caused this Assignment and
Assumption Agreement to be executed by its general partners 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 Assignor 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.
WINSTON COUNTY INDUSTRIAL
DEVELOPMENT ASSOCIATION
an Alabama General Partnership
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IN WITNESS WHEREOF, the Assignor has caused this Assignment and
Assumption Agreement to be executed by its general partner 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 Assignor 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.
CAVALIER REAL ESTATE CO., INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Its President
-----------------------------
SEAL
Attest:
----------------------------
Its:------------------------
IN WITNESS WHEREOF, the Assignor has caused this Assignment and
Assumption Agreement to be executed by its general partner 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 Assignor 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.
CAVALIER MANUFACTURING, INC.
(Cavalier Homes of Alabama Division)
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Its President
-----------------------------
SEAL
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
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 Addison has received a copy of the foregoing Assignment and Assumption
Agreement, does hereby consent to the assignment of the leasehold interests of
the Assignor (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 Assignor 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 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 acknowledgment hereof.
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE TOWN OF ADDISON
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Its:President
---------------------------
S E A L
Attest: ▇▇▇▇▇▇ Dollar ▇▇▇▇
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Its: Notary Public
-------------------------
CONSENT AND RELEASE
First Commercial Bank does hereby represent, covenant and agree that
(1) First Commercial Bank has received a copy of the foregoing Assignment and
Assumption Agreement, does hereby consent to the assignment of the leasehold
interests of the Assignor (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) First
Commercial Bank does hereby release and discharge the Assignor and each partner
thereof 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 does hereby release
and discharge that certain Bond Guaranty Agreement dated as of January 1, 1993
by the Assignor and the partners thereof to First Commercial Bank, and (3) the
Lease Agreement is in full force and effect and the undersigned has not declared
any default thereunder.
IN WITNESS WHEREOF, First Commercial Bank has caused this instrument to
be executed in its name, under seal, and the same attested, by an officer
thereof duly authorized thereunto as of this 13th day of January, 1999.
FIRST COMMERCIAL BANK
By: ▇▇▇ ▇▇▇▇▇▇▇▇
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Its: Vice President
------------------------------
S E A L
Attest:
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Its:
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