EXHIBIT 10.4
ASSIGNMENT OF LEASE
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THIS ASSIGNMENT OF LEASE (this "Assignment") is entered into as of October
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9, 1997 by and between KEMPER PRESSURE TREATED FOREST PRODUCTS, INC., a
Mississippi corporation ("Assignor") and ELECTRIC MILLS WOOD PRESERVING, LLC, an
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Mississippi limited liability company ("Assignee").
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RECITALS
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A. By that certain Lease Agreement effective July 1, 1988 (the
"Lease"), Kemper County Economic Development Authority, on behalf of itself and
Kemper County, Mississippi (collectively the "Lessor"), leased to Assignor that
certain real property located in Electric Mills, Kemper County, Mississippi,
described in the attached Exhibit "A" (the "Premises" or the "Leased Real
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Property"), together with substantially all of he personal property described in
Exhibit "B" ("Leased Equipment") used by Seller in connection with Seller's
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business of operating a certain wood preserving and treating facility located in
Electric Mills, Mississippi (the "Business").
B. For valuable consideration, the receipt of which is hereby
acknowledged, Assignor desires to assign to Assignee all of Assignor's right,
title and interest as Lessee of the Lease, effective as of the date of this
Assignment.
AGREEMENTS
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1. Assignment. Effective as of the date of this Assignment, Assignor
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hereby grants, assigns and transfers to Assignee all of Assignor's right, title
and interest as lessee under the Lease, including, but not limited to, its
interest in the Leased Real Property and the Leased Equipment.
2. Consideration. This Assignment of Lease is made pursuant to the
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terms of that certain Asset Purchase Agreement between the parties, dated
October 9, 1997, under which Assignee has agreed to pay Assignor the sum of
$10,000.00 at the Initial Closing thereof and $115,000.00 at the Final Closing
thereof, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, for certain Purchased Assets, including the
Lease.
3. Bill of Sale for Personal Property. For good and valuable
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consideration, the receipt and sufficiency of which is hereby acknowledged,
Assignor does hereby sell, assign, transfer, convey and deliver to Assignee the
items listed on attached Exhibit "B", and all other personal property of
Assignor of every description, whether or not specifically listed on Exhibit
"B", that is located on and used in connection with the Assignor's Business, and
all guaranties, warranties, rights and claims of right related thereto (the
"Equipment").
4. Status of Lease. Assignor hereby represents and warrants to
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Assignee as follows:
(b) Assignor has not assigned or otherwise transferred any
interest in the Lease.
(c) Assignor is not in default under the Lease, with the exception
of Sections 8.2 or 15 of the Lease.
(d) All rental has been paid under the Lease for the period
through the date of this Assignment.
5. Full Authority. Assignor represents and warrants to Assignee as
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follows: Assignor is a corporation duly organized, validly existing and in good
standing in the State of Mississippi; the execution and full performance of this
Assignment and the other documents executed by Assignor in connection with this
transaction (the "Other Documents") have been duly authorized by all necessary
corporate action on the part of Assignor; Assignor has full capacity, power and
authority to enter into and perform this Assignment and to carry out the
transactions contemplated hereby, and this Assignment is binding upon and
enforceable against Assignor in accordance with its terms, except that the
consent to this Assignment of Lease of the Kemper County Economic Development
Authority and the Kemper County Board of Supervisors also is required; there is
no suit, action, proceeding (legal, administrative or otherwise), claim,
investigation or inquiry (by an administrative agency, governmental body or
otherwise) pending or, to the best of Assignor's knowledge, threatened, against
Assignor or any of its properties, assets or business prospects or which could
prevent Assignor from consummating the transactions contemplated by this
Assignment, and, to the best of Assignor's knowledge, there is no factual basis
upon which any such suit, action, proceeding, claim, investigation or inquiry
could be asserted or based which is likely to have a material adverse effect on
the Business conducted by Assignor (or that to be conducted by Assignee) on the
Premises; there is no outstanding judgment, order, writ, injunction or decree of
any court, administrative agency, governmental body or arbitration tribunal
against or adversely affecting the business of Assignor or any of the properties
or assets of Assignor or the full and timely performance and observance of this
Assignment; the execution, delivery and performance of this Assignment and the
Other Documents and the consummation of the transactions contemplated thereby
will not (i) result in the breach of any of the terms or conditions of, or
constitute a default under, the Articles of Incorporation or the Bylaws of
Assignor or any law or any material contract, agreement, lease, commitment,
indenture, mortgage, pledge, note, bond, license or other instrument or
obligation to which Assignor is now a party or by which Assignor or any of
Assignor's properties or assets may be bound or affected or (ii) violate any
law, rule or regulation of any administrative agency or governmental body; all
consents, approvals or authorizations of or declarations, filings or
registrations with any third parties or governmental or regulatory authorities
required in connection with the execution, delivery or performance of this
Assignment and the Other Documents or the consummation of the transactions
contemplated thereby have been obtained by Assignor; the Premises and all of the
improvements thereon and those other interests and items of property of
Assignor's property being conveyed to Assignee by Assignor under this Lease or
any of the other related documents are in good and operable condition and
repair.
6. Assignee's Acceptance of Lease. Assignee accepts this assignment.
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At the Initial Closing, the Buyer shall become responsible for and shall pay the
rental payments due under the Lease from and after the Initial Closing of the
Asset Purchase Agreement, but only for that period of time that the Buyer
occupies and operates the Facility. In the event of reversion of the Lease to
the Seller, as set forth in Section 12 of the Asset Purchase Agreement, Buyer
shall have no liability for rental payments under the Lease after reversion of
the Lease to the Seller. At the Final Closing of the Asset Purchase Agreement,
the Buyer shall assume only the obligations and liabilities arising under this
Lease, -but only as to those obligations and liabilities which accrue on or
after the Final Closing Date (the "Assumed Liability").
7. Binding Effect. This Assignment shall be binding upon and inure to
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the benefit of the parties and their successors in interest and assigns.
8. Further Assurances. Assignor agrees to execute all instruments, and
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documents and take all other action, including without limitation transfer of
title on any certificated vehicles, that may be necessary or appropriate to
carry out the intent of this Assignment.
9. Counterparts. This Assignment may be executed simultaneously or in
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the one Assignment.
10. Time of Performance. Time is of the essence of each and every term,
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covenant and condition hereof.
11. Construction. This Assignment shall be construed in accordance with
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the laws of the State of Mississippi. The terms of this Assignment shall have
been mutually negotiated with each party having the opportunity to seek the
advice of legal counsel and shall not be construed against any party. The
headings in this Assignment are inserted solely for the purpose of convenience
and shall not affect the interpretation of the provisions hereof. Any reference
to gender or singular or plural numbers shall be deemed to refer all genders and
to both the singular or plural as may be appropriate in the context of this
Assignment. If any portion of this Assignment is held to be invalid by any
court of competent jurisdiction, such ruling shall not affect the remaining
terms hereof unless and to the extent it includes a specific determination that
the fundamental purposes of this Assignment are thereby significantly impaired.
All sums referred to in this Assignment shall be calculated by and payable in
the lawful currency of the United States.
12. Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in writing and
shall be deemed given only if hand-delivered, sent by certified or registered
mail, postage prepaid, or by telecopier as follows:
If to Seller:Kemper Pressure Treated Forest Products, Inc.
c/o Farnsworth Gray
1250 24th Street, N.W., Suite 300
Washington, D.C. 20037
Attention: Brian L. Sorrentino, President
Telecopier: (301) 540-6447
with a copy to: Mr. Shawn Mitchell
12530 Newton Street
Broomfield, CO 80020
Telecopier: (303) 464-9422
If to Buyer: Electric Mills Wood Preserving, LLC
Rt. Box 514 Hwwy . 45 South
Scooba, MS. 39358
Attention: President
with a copy to: Mr. Stephen W. Rosenblatt
Butler, Snow, O'Mara, Stevens
& Cannada, PLLC
Post Office Box 22567
Jackson, MS 39225-2567
Telecopier: (601) 949-4555
Any notice required or permitted to be given under this Agreement or by law
shall be deemed given on the first business day after it is hand-delivered or
sent by telecopy or on the third business day after it is mailed by certified or
registered mail. Either party may change its address for notice purposes by a
notice sent in the above manner, with such change effective for notices given
after fifteen (15) days following the effective date thereof (or such later
effective date as is therein specified). This paragraph shall supersede all of
the provisions regarding notices in the Lease from and after the assignment
thereof to the Assignee.
13. Jurisdiction and Venue. Assignor and the Assignee hereby
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irrevocably submit to the jurisdiction of any state or Federal court sitting in
or serving Kemper County, Mississippi, in any action or proceeding arising out
of or relating to this Assignment or the Lease, and each of them hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such courts. Each person comprising the Assignor or the
Assignee hereby irrevocably waives, to the fullest extent they may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding, Assignor and Assignee irrevocably consent to the service of the
summons and complaint and to any other process or notice which may be served in
any such action or proceeding (including any nonjudicial foreclosure) at its
address stated in this Assignment. Assignor and Assignee agree that a final
judgment in any such action or proceeding shall be conclusive and may be,
enforced in the State of Mississippi or any other state or foreign jurisdiction
by suit on the judgment or in any other manner provided by applicable law.
14. Arbitration. Any dispute arising out of or relating to this
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Agreement or its breach shall be settled by arbitration under and in accordance
with the rules of the American Arbitration Association. The arbitration shall
be held in Jackson, Mississippi. The arbitrator's decision in such arbitration
will be final, binding and non-appealable and judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction. This
Agreement to arbitrate shall not prevent either party from applying to the state
or federal courts of Mississippi for a temporary restraining order, preliminary
injunction, or other equitable relief to preserve the status quo or prevent
irreparable harm.
15. Entire Agreement. This Assignment constitutes the entire agreement
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and understanding of the parties hereof regarding the subject matter hereof, and
no oral understandings, written agreements or representations exist which are in
addition to or contradict or expand upon the terms herein set forth. No
amendments, variations, modifications or changes to this Assignment shall be
effective unless in writing and signed by all parties hereto subsequent to the
date hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment on the
date of first above written.
Assignor:
KEMPER PRESSURE TREATED FORREST
PRODUCTS, INC.
By:___________________________
Brian L. Sorrentino
Title: President