AGREEMENT AND ASSIGNMENT
THIS AGREEMENT AND ASSIGNMENT ("Agreement") is made and entered into as of
the 20th day April, 1995 by (i) ▇▇▇▇▇▇ LLC, an Indiana limited liability
company, ("▇▇▇▇▇▇"); and (ii) TUMBLEWEED, LLC, a Kentucky limited liability
company ("TW").
RECITALS:
A. TW entered into an AGREEMENT OF PURCHASE AND SALE dated February 2,
1995 (the "PURCHASE AGREEMENT"), under which TW agreed to buy, and ▇▇▇▇▇ ▇▇▇▇▇▇▇
and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the "SELLERS") agreed to sell, all of that certain parcel
of land situated in the City of Springdale, ▇▇▇▇▇▇▇▇ County, Ohio, together with
all improvements, privileges and appurtenances thereto, which is commonly
referred to as a parcel located on Princeton Pike near Merchant Street,
Springdale, Ohio and which is more particularly described in EXHIBIT A attached
hereto (the "PROPERTY").
B. A copy of the Purchase Agreement is attached hereto as EXHIBIT B.
B. TW now desires to assign to ▇▇▇▇▇▇ all of TW's rights and obligations
under the Purchase Agreement and lease the Property, when improved, from ▇▇▇▇▇▇,
and ▇▇▇▇▇▇ desires to accept such assignment, improve the Property, and lease
the Property, when improved, to TW, all upon the terms and conditions set forth
herein.
AGREEMENT:
IN CONSIDERATION OF the mutual covenants and agreements herein contained,
the parties agree as follows:
ARTICLE
1
ASSIGNMENT OF PURCHASE AGREEMENT
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1.1 ASSIGNMENT OF PURCHASE AGREEMENT
In accordance with the provisions of ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ hereby assigns to ▇▇▇▇▇▇ all of TW's right, title, interests,
duties, and obligations in, to, and under the Purchase Agreement, and ▇▇▇▇▇▇
hereby accepts such assignment and agrees to purchase the Property pursuant
to the Purchase Agreement and to otherwise fully and timely comply with and
perform all provisions of the Purchase Agreement which TW would be required
to comply with or perform if the Purchase Agreement had not been assigned to
▇▇▇▇▇▇ under this Agreement.
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1.2 REIMBURSEMENT OF $5,000 DEPOSIT
▇▇▇▇▇▇ agrees to pay to TW the sum of $5,000.00 in immediately
available funds upon execution of this Agreement, which amount shall
constitute partial consideration for TW's assigning the Purchase Agreement to
▇▇▇▇▇▇.
1.3 ACKNOWLEDGMENT OF ASSIGNMENT
▇▇▇▇▇▇ and TW agree to execute and deliver to the Sellers a
separate document acknowledging the assignment of the Purchase Agreement from
TW to ▇▇▇▇▇▇ in the form of that attached hereto as EXHIBIT C.
1.4 INDEMNIFICATION
▇▇▇▇▇▇ shall indemnify TW and save and hold TW harmless from and
against any and all claims, actions, damages, liabilities, and expenses,
including, but not limited to, reasonable attorneys' fees which occur as a
result of ▇▇▇▇▇▇'▇ failure to perform TW's obligations under the Purchase
Agreement.
1.5 REPRESENTATION AND WARRANTY
TW represents and warrants to ▇▇▇▇▇▇ that (a) a true, correct, and
complete copy of the Purchase Agreement is attached hereto as a part hereof
and that there have been no amendments or modifications of the Purchase
Agreement, (b) TW is not in default of any of its obligations under the
Purchase Agreement and has not breached any of its agreements under the
Purchase Agreement, (c) to the best of TW's knowledge, there has not been any
breach or default by the Seller under the Purchase Agreement, and (d) TW has
provided ▇▇▇▇▇▇ with copies of all material title, survey, engineering,
environmental, and other due diligence items obtained by TW with respect to
the Property and shall provide ▇▇▇▇▇▇ with any of the foregoing that it
obtains subsequent to the date hereof.
ARTICLE
2
EXECUTION OF LEASE
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2.1 EXECUTION OF LEASE
Immediately following ▇▇▇▇▇▇'▇ acquisition of the Property pursuant
to the Purchase Agreement, ▇▇▇▇▇▇ and TW shall enter into a lease of the
Property in form and content substantially identical to that attached hereto
as EXHIBIT D (the "LEASE").
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2.2 CONSTRUCTION OF BUILDING
Immediately following execution of this assignment, Lessee and
▇▇▇▇▇▇ shall finalize and approve the plans and specifications for the
Specified Building (as defined in the Lease) and, upon execution of the
Lease, ▇▇▇▇▇▇ shall diligently pursue the construction of the Specified
Building in accordance with such plans and specifications (SUBJECT, HOWEVER,
to changes from time to time as directed by Lessee), provided that such
changes are consistent with the overall design and do not unreasonably delay
the scheduled completion of construction and subject to any changes necessary
to obtain building permits, all as provided for under the Lease and subject
to the requirements and limitations set forth in the Lease, including, but
not limited to, the $1,625,000 Ceiling as to ▇▇▇▇▇▇'▇ total investment
(referred to as "Lessor's Total Investment" in the Lease). If such plans and
specifications have not been agreed upon by ▇▇▇▇▇▇ and TW within ten days
after the date hereof, this Agreement shall terminate and neither party shall
have any further obligation hereunder. The acknowledgment of assignment
referred to in Section 1.3 above shall not be delivered to the Sellers unless
and until the plans and specifications are approved.
ARTICLE
3
DEFAULT
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3.1 DEFAULT
If either party shall fail to fully perform such party's
obligations and duties under this Agreement, or shall otherwise default under
this Agreement, the nondefaulting party shall have all of the rights and
remedies available at law, in equity, in bankruptcy or otherwise. All such
rights and remedies shall be cumulative to the fullest extent provided by law.
3.2 ATTORNEY FEES AND COSTS
If either party shall fail to fully perform such party's
obligations and duties under this Agreement, or shall otherwise default under
this Agreement, such defaulting party shall pay all costs, expenses, and
reasonable attorneys' fees which are incurred or paid by the nondefaulting
party in enforcing the covenants and agreements of the defaulting party under
this Agreement.
3.3 WAIVER OF CERTAIN DEFENSES
Should either party seek recourse to equity to enforce any of its
rights under this Agreement by specific performance, injunction, or other
equitable relief, the other party agrees
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to, and hereby does waive any defense(s), which such
party might otherwise have that there is any adequate remedy at law.
ARTICLE
4
MISCELLANEOUS
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4.1 ASSIGNMENT
Neither party may assign any of its right, title, interests,
obligations, or duties in, to, or under this Agreement without the prior
written consent of the other party, which consent shall not be unreasonably
withheld.
4.2 ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement, together with the exhibits, constitutes the entire
agreement among the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations and
understandings of the parties. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all parties
hereto. No waiver of any of the provisions of this Agreement will be deemed,
or will constitute, a waiver of any other provision, whether or not similar,
nor will any waiver constitute a continuing waiver. No waiver will be
binding unless executed in writing by the party making the waiver.
4.3 SUCCESSORS AND ASSIGNS
This Agreement shall be binding on, and inure to the benefit
of, the parties hereto and their respective heirs, legal representatives,
successors and permitted assigns.
4.4 NOTICES
(a) DELIVERY OF NOTICE
All notices, demands, requests, consents, approvals, offers,
counteroffers or other communications required or permitted under this
Agreement shall be in writing and (i) delivered by personal delivery to such
intended recipient, which personal delivery shall be evidenced by a written
receipt therefor signed by such recipient, (ii) sent by United States
certified, registered or express mail, return receipt requested, postage
prepaid, or by reputable express delivery service (such as Federal Express,
UPS, Airborne, Purolator, or DHL), fees prepaid, addressed to the intended
recipient thereof, at the address listed for such party below, or at such
other address as such party shall furnish in writing to the other parties to
this Agreement, or (iii) transmitted by fax to such intended recipient at the
fax number listed for such party below (or such other fax number as such
party shall furnish in writing to the other parties to this Agreement),
receipt of which transmission shall be confirmed by such recipient.
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TO LESSOR: ▇▇▇▇▇▇ LLC
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (502) ____________________
WITH COPY TO: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇ & Heyburn
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
TO LESSEE: Tumbleweed, LLC
A Kentucky Limited Liability Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Managers
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY TO: ▇▇▇▇ & ▇▇▇▇▇▇, P.S.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: ▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) EFFECTIVE DATE OF NOTICE; RESPONSE PERIOD
All such notices, demands, requests, consents, approvals,
offers, counteroffers or other communications shall be effective upon being
personally delivered and properly receipted, two (2) days after being
properly addressed and deposited in the United States mail or with a
reputable express delivery service or upon being transmitted by fax and
properly receipted, as set forth above. However, the time period in which a
response to any such notice, request, demand, consent, approval, offer,
counteroffer or other communication must be given shall commence to run from
the date of receipt of personal delivery, the date on the return receipt or
express delivery receipt, or the date of confirmation of receipt of the fax,
as the case may be, of the notice, request, demand, consent, approval, offer,
counteroffer or other communication by the addressee thereof; PROVIDED,
HOWEVER, that if any party rejects delivery of any such notice, request,
demand, consent, approval, offer, counteroffer or other communication
properly sent by mail or express delivery service, or fails or neglects to
accept delivery after two (2) attempts to so deliver by postal or express
delivery authorities, as the case may be, the time period for a response
shall commence two (2) days following the proper mailing or depositing with
the express delivery service, as the case may be, of such notice, request,
demand, consent, approval, offer, counteroffer or other communication.
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4.5 CAPTIONS AND HEADINGS
The captions and headings throughout this Agreement are for
convenience and reference only and the words contained in such captions and
headings shall in no way be held or deemed to define, limit, describe,
explain, modify, amplify or add to the interpretation, construction or
meaning of any provision or the scope or intent of this Agreement, nor in any
way affect this Agreement.
4.6 GENDER
The use of any gender in this Agreement shall include all other
genders, the singular shall include the plural, and the plural shall include
the singular, as the context may require.
4.7 GOVERNING LAW
This Agreement shall be construed and interpreted in accordance
with the laws of the Commonwealth of Kentucky without regard to any conflict
of laws provisions.
4.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
4.9 FURTHER ASSURANCES
From time to time, at any party's request and without further
consideration, each party shall execute and deliver such further instruments,
and take such other actions as the requesting party may reasonably request,
in order to more effectively implement the transactions contemplated herein.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first hereinabove written.
▇▇▇▇▇▇
[illegible]
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WITNESS
[illegible] BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- -----------------------------
WITNESS ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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TW:
[illegible]
------------------------ TUMBLEWEED, LLC
WITNESS
/s/ ▇▇▇ ▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., MANAGER
------------------------ ---------------------------------
WITNESS ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., MANAGER
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, MANAGER
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, MANAGER
Exhibits:
EXHIBIT A-DESCRIPTION OF THE PROPERTY
EXHIBIT B-PURCHASE AGREEMENT
EXHIBIT C-ACKNOWLEDGMENT OF ASSIGNMENT
EXHIBIT D-LEASE
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EXHIBIT A
LEGAL DESCRIPTION OF LEASED PREMISES
1.5978 Acre Tract
(Parcel II - Tumbleweed)
SITUATE in Section ▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ of Springdale, ▇▇▇▇▇▇▇▇ County, Ohio, and being more particularly
described as follows:
COMMENCING at a point in the west line of Princeton Pike at the
southeast corner of ▇▇▇ ▇ ▇▇ ▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ A, as
recorded in Plat Book 210, page 57, ▇▇▇▇▇▇▇▇ County Recorder's Office,
said point being South 01DEG. 00' 00" West, 527.64 feet along the east
line of Section 12 and North 65DEG. 12' 00" West, 43.72 feet from the
intersection of the centerlines of Princeton Pike and Tri-County Parkway
and said east line of Section 12;
THENCE along the west line of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. 00' 00"
West, 129.64 feet to the True Point of Beginning; THENCE, continuing
along the same, South 01DEG. 00' 00" West, 181.00 feet to a point;
THENCE, North 89DEG. 00' 00" West, 415.34 feet to a point; THENCE,
North 01DEG. 00' 00" East, 21.96 feet to a point; THENCE North 24DEG.
48' 00" East, 173.82 feet to a point; THENCE south 89DEG. 00' 00"
East, 345.00 feet to The Point of Beginning.
CONTAINING 1.5978 acres of land, more or less and being subject to all
legal easements and rights-of-way on record.
EXHIBIT B
PURCHASE AGREEMENT
EXHIBIT C
ACKNOWLEDGMENT OF ASSIGNMENT
EXHIBIT D
LEASE
