EXHIBIT 10.34
AGREEMENT FOR CONVEYANCE AND ASSIGNMENT
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This AGREEMENT FOR CONVEYANCE AND ASSIGNMENT (herein after referred to
as the "Agreement") is executed as of the 14th day of August, 2001 (the
"Execution Date"), and made effective and deemed delivered as of the 14th day of
August, 2001 (the "Effective Date"), by FIRST CAPITAL BANK, successor in
interest to Central Gwinnett Bank, (hereinafter referred to as the "Assignor"),
to and for the benefit of RECONDITIONED SYSTEMS, INC. (hereinafter "Assignee"),
an Arizona corporation.
WITNESSETH:
WHEREAS, Assignor has agreed to assign to Assignee all of Assignor's
interest in certain personality as described and set forth herein.
WHEREAS, in connection with the aforesaid assignment, Assignor and
Assignee have made certain agreements, covenants and representations also as
described and set forth herein.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid
to Assignor and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee, each
intending to be legally bound, agree as follows:
1. Assignment, Conveyance and Sale of Collateral.
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On the effective date of this Agreement, and upon the tender and payment of the
Purchase Price (as such term is hereinafter defined) by Assignee to Assignor on
the Execution Date, Assignor hereby assigns, sells, transfers, sets over and
conveys to Assignee all of Assignor's right, title and interest, if any, in and
to all personal property (the "Collateral") of every kind and nature of Recycled
Office Interiors, Inc. ("ROI") and Contren, Inc. ("Contren"; Contren and ROI
shall be hereinafter be collectively referred to as the "Debtors"), described,
as applicable, in (i) that certain U.S. Small Business Administration Security
Agreement dated March 29, 1993 made by Borrower in favor of Central Gwinnett
Bank ("CGB") (hereinafter collectively referred to as the "Contren Security
Agreement"), granting CGB a first priority security interest in certain
accounts, equipment, inventory, fixtures, and other property of Contren as more
particularly described therein, together with all amendments and/or
modifications to said Contren Security Agreement; and (ii) that certain Security
Agreement made by ROI in favor of Lendor (hereinafter referred to as the "ROI
Security Agreement"), granting Lendor a first priority security interest in
certain accounts, equipment, inventory, fixtures, and other property of ROI as
more particularly described therein, together with all amendments and/or
modifications to said ROI Security Agreement; excepting, however, all or any
part of the Collateral not located on or in the office of Contren and/or ROI
located at 6375 Best Friend Road, Suite 101, Norcross, Georgia 30071 (such
office located at such address being hereinafter referred to as the "Facility").
The Collateral includes, but is not limited to, the items listed on Schedule 1
attached hereto and made a part hereof. Assignor hereby agrees, represents and
warrants that it shall deliver, cause to be delivered, or make available
possession of, the Collateral to Assignee in Atlanta, Georgia on or before
August 31, 2001.
2. Purchase Price of Collateral.
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In consideration of the assignment, sale, transfer and conveyance to Assignee of
all of Assignor's right, title, interest, if any, in and to the Collateral,
Assignee shall pay to Assignor upon Assignee's execution of this Agreement an
amount equal to TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00)
(the "Purchase Price").
3. Tax Liens.
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Assignee hereby acknowledges and agrees that Assignee has been advised by
Assignor that all or part of the Collateral is, or may be, subject to federal,
state, local or other tax liens and/or assessments (collectively, the "Tax
Liens"). Assignee further acknowledges and agrees that Assignee had been advised
by Assignor that Assignor has negotiated a settlement and release of the Tax
Liens with respect to the Collateral in the form of EXHIBIT "A", attached hereto
and made a part hereof (the "Tax Lien Agreement"), by which the applicable
governmental authority referenced therein in said Tax Lien Agreement (such
governmental authority being hereinafter referred to as the "Tax Agent") has
agreed to release the Collateral from the Tax Liens in exchange for the payment
of the sum of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000.00) (the "Tax
Lien Payment"), according to the terms and provisions set forth therein in the
Tax Lien Agreement attached hereto. Assignee and Assignor hereby further
acknowledge and agree that upon the complete execution of this Agreement by all
parties hereto, Assignor shall, within a reasonable period of time thereafter,
cause a sum equal to the Tax Lien Payment to be paid to the Tax Agent in
accordance with the terms and provisions of the Tax Lien Agreement.
4. Assignor's Disclaimer of Representations and Warranties.
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ASSIGNOR HEREBY REPRESENTS AND ASIGNEE HEREBY ACKNOWLEDGES THAT THE COLLATERAL
IS SOLD "AS IS, WHERE IS WITH ALL FAULTS" AND WITHOUT ANY REPRESENTATION,
WARRANTY OR RECOURSE, EXPRESS OR IMPLIED. BY VIRTUE OF ASSIGNEE'S EXECUTION OF
THIS AGREEMENT, ASSIGNEE ACKNOWLEDGES ITS ACCEPTANCE OF THE COLLATERAL WITH ALL
DEFECTS, PATENT AND LATENT, AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY
KIND WHATSOEVER OF FITNESS, MERCHANTABILITY OR SUITABILITY FOR ANY PARTICULAR
PURPOSE. ASSIGNEE ACKNOWLEDGES THAT THE ASSIGNOR HAS MADE NO REPRESENTATION OR
WARRANTY WHATSOEVER WITH RESPECT TO THE TITLE, OR STATUS THEREOF, OF ALL OR ANY
PART OF THE COLLATERAL.
5. Assignee's Acknowledgement of Assignment, Conveyance and Sale of
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Collateral.
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Assignor and Assignee acknowledge that the Collateral has been
repossessed and is being sold to Assignee pursuant to the private sale
provisions as set forth in O.C.G.A. Sub-Section 11-9-611, and that the Assignee
shall only have such rights in the Collateral as set forth therein.
6. Acknowledgement of Location of Collateral on or at Facility.
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Assignee hereby acknowledges that the Collateral is presently located on or at
the Facility, such Facility which is or was subject to a lease agreement
(hereinafter referred to as the "Lease Agreement") by and between the Debtors,
as applicable, as lessees, and Prologis Trust, as lessor (hereinafter the
"Landlord"). Assignee acknowledges that Assignee has been advised by Assignor
that the Debtors are, or may be, or were in default of the terms of the Lease,
and as a result of any such default(s) of the Lease Agreement by Debtors,
certain rights, claims or liens of Landlord, in, to and/or against the
Collateral (collectively, the "Landlord Claims") may have arisen or may arise as
a result of same. Assignee further acknowledges and agrees that Assignee has
been advised by Assignor that Assignor has negotiated a settlement and release
of any potential or existing Landlord Claims with respect to the Collateral in
the form of EXHIBIT "B", attached hereto and made a part of hereof (the
"Landlord Claims Agreement"), by which the Landlord has agrees to release the
Collateral from any potential or existing Landlord Claims in exchange for the
payment of the initial sum of TWENTY THREE THOUSAND FIVE HUNDRED FIFTY-TWO AND
49/100 DOLLARS ($23,552.49) (the "Landlord Claim Payment"), and agreement to
other terms and provisions as more particularly set forth herein. Assignee and
Assignor hereby further acknowledge and agree that upon the complete execution
of this Agreement. Assignor will immediately pay the Landlord Claim Payment to
Landlord. Assignee (a) agrees that it shall remove the Collateral, including,
without limitation, the paint booth and the wood working room, from the Facility
on or before August 31, 2001, leaving the Facility in broom clean condition, and
(b) understands and agrees that any portion of the Collateral not removed from
the Facility by such date shall be deemed abandoned and shall become property of
the Assignor.
7. Time. Time is the essence of this Agreement.
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8. Binding Effect.
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The terms and conditions, covenants, agreements, powers, privileges and
notices of authorization contained herein shall be binding upon and shall inure
to the benefit of the Assignor and Assignee and their respective successors,
assigns, agents, and attorneys.
9. Severability.
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Wherever possible, each provision of this Agreement shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under any such law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision, or the remaining
provisions of this Agreement.
10. Notice.
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Any notice, demand, request or other communication required or permitted
hereunder shall be in writing, shall have been duly made or delivered either
personally to the persons identified below or placed in a depository of the
United States Post Office, mailed by Certified Mail, and addressed as follows:
Assignor: First Capital Bank
3320 Holcomb Bridge Road, N.W.
Suite A
Norcross, Georgia 30092
Attn: Mr. Don Tate
Tel: 770/381-9996 ext. 318; Fax: 770/242-8035
With a copy to: M. Todd Westfall, Esq.
Macey, Wilensky, Cohen, Wittner & Kessler, LLP
Suite 600 Marquis Two Tower
285 Peachtree Center Avenue, NE
Atlanta, GA 30303-1229
Tel: 404/584-1217; Fax: 404/681-4355
Assignee: Mr. Dirk Anderson
Reconditioned Systems, Inc.
444 West Fairmont
Tempe, Arizona 85282
Tel: 480-968-1772; Fax: 480-894-1907
With a copy to: Stephen R. Klorfein, Esq.
Kaufman, Chaiken, Miller & Klorfein, P.C.
400 Perimeter Center Terrace, N.E., Suite 720
Atlanta, GA 30346-1234
Tel: 770/390-9200; Fax: 770/395-6720
11. Construction of this Agreement.
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The parties acknowledge and agree that this Agreement shall be construed in
accordance with the laws of the State of Georgia. This Agreement constitutes the
entire agreement between Assignor and Assignee regarding the terms of this
Agreement. In that jurisdiction or affecting the validity or enforceability of
such provision in any other jurisdiction.
12. Counterparts.
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This Agreement may be executed in any number of counterparts, all of which
when taken together shall constitute one and the same instrument and any of
the parties or signatories hereto may execute this Agreement by signing any
such counterpart.
13. Exhibits and Schedules.
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Each and every Exhibit and Schedule referred to or otherwise mentioned in this
Agreement is attached to this Agreement and is and shall be construed to be made
a part of this Agreement by such reference or other mention at each point at
which such reference or other mention occurs, in the same manner and with the
same effect as if each Exhibit and/or Schedule were set forth in full and at
length every time it is referred to or otherwise mentioned.
14. Modification.
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This Agreement shall not be modified or amended except by an instrument in
writing executed by or on behalf of Assignor and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
as of the 14th day of August 2001.
ASSIGNOR: ASSIGNEE:
FIRST CAPITAL BANK, RECONDITIONED SYSTEMS, INC.
Successor in interest to Central Gwinnett Bank
By: /S/James Donald Tate By: /S/Dirk D. Anderson
Title: Senior Vice President Title: President & CEO
[CORPORATE SEAL]
EXHIBIT "A" TAX LIEN AGREEMENT
Form 669-B Department of the Treasury - Internal Revenue Service
Certificate of Discharge of Property from Federal Tax Lien
(Sec. 6325(b)(2)(A) of the Internal Revenue Code)
WHEREAS, Recycled Office Interiors, Inc.
of 6375 Best Friend Rd. City of Norcross
County of Gwinnett State of Georgia
is indebted to the United States for unpaid internal revenue tax in the sum of
Two Hundred Fifty-Nine Thousand Three Hundred Ninety-Eight and 38/100 Dollars
($259,398.38) as evidenced by:
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Notice of Federal Tax |Recording | Date |Taxpayer Indentification |Amount Shown |
Lein Serial Number |Information|Recorded| Number | on Lein |
(a) | (b) | (c) | (d) | (e) |
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|Book 1158 | | | |
580091373 | Page 191 |12-25-00| 58-2234612 |$236,628.85 |
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WHEREAS, to secure the collection of the tax, notice of the lien of the United
States, attaching to all the property and rights to property of the taxpayer on
account of the tax indebtedness, was filed with the Clerk of the Superior Court
of the County of Gwinnett, in accordance with the appicable provisions of law.
WHEREAS, the lien of the United States, listed above, for the tax has attached
to certain property described as:
All inventory, furniture, fixtures, equipment and accounts receivable.
WHEREAS, the Compliance Area Director, Small Business/Self-Employed, has
determined that the value of the interest of the United States in the previously
mentioned property, under and by reason of the tax lien, amounts to the sum of
Thirty-Five Thousand and 00/100 Dollars ($35,000.00). In addition, under the
provisions of section 6325(d)(2) of the Internal Revenue Code, the United States
subordinates its tax lien to all reasonable and necessary expenses incurred in
connection with the sale of the property or administration of the sale proceeds.
I have determined that subordination of any interest will increase the amount
collected and enhance collection of the tax liability. Therefore, I have
authorized the issuance under provisions of section 6325(b)(2)(A) of the
Internal Revenue Code, of a certificate discharging the above-described property
from the tax lien of te United States upon the payment of the sum of Thirty-Five
Thousand and 00/100 Dollars ($35,000.00). The payment will be applied in part
satisfaction of the liability as stated and which sum has been paid will be
applied and the receipt of which sum by me is hereby acknowledged; Bruce R.
Thomas.
NOW, THEREFORE, THIS INSTRUMENT WITNESSETH, that I, Bruce R. Thomas, Director,
Compliance Area 8, Small Business/Self-Employed, am charged by law with the duty
of collecting and enforcing the collection of internal revenue taxes due to the
United States. Im also charged with teh assessment as stated, and do, in
accordance with the provisions of section 6325(b)(2)(A) of the Internal Revenue
Code, discharge the property prevsiously described from the tax lien. I save
and reserve, however, the force and effect of the lien against and upon all
other property and rights to property to which the lien is attached, wheresoever
situated.
WITNESS my hand at Atlanta, Georgia, on this the 19th day of July, 2001.
Signature: /s/ Robert C. Manly Title
Bruce R. Thomas by: Robert C. Manly Technical Support Group Manager
EXHIBIT "B" LANDLORD CLAIMS AGREEMENT
AGREEMENT
This Agreement is entered into this 14th day of August, 2001, by and
between PROLOGIS TRUST, hereinafter referred to as "LANDLORD" and FIRST CAPITAL
BANK, hereinfater referred to as "TENANT";
NOW THEREFORE, IT IS AGREED, that in consideration of the mutal
covenants stated herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.
For and in consideration of the sum of $23,552.49, which sum is to be
paid simultaneously with the execution of this agreement or wired, immediately
upon execution and delivery of this agreement, to the account of LANDLORD
(wiring instructions ProLogis, Bank of America, Acct. #4772108991,
ABA#111000025, reference Recyled Office Interiors), TENANT is granted the right
to occupy those premises known as Suite 101, 6375 Best Friend Road, Atlanta,
Gwinnett County, Georgia 30071, for a term to expire on August 31, 2001, for
the purpose of removing all property and trade fixtures, to the extent it has a
security interest in such property, remove all personal property and trade
fixtures, which includes the paint booth and work working room, leaving the
premises in broom clean condition, time being the essence of this agrement.
PROLOGIS TRUST shall have the right to retake possession of the premises,
without process of law, on September 1, 2001, and all personal property and
trade fixtures remaining on the premises shall be deemed abandoned to PROLOGIS
TRUST to be disposed of at its discretion at the expense of the TENANT
including, to the extent it has a security interest in such property, all
personal property and trade fixtures, which includes the paint booth and word
working room.
2.
LANDLORD independently and affirmatively (i) waives and remounces any
right to notification of any sale of the personal property and trade fixtures
which constitute the collateral (the "Collateral") for a loan from TENANT to
Contren, Inc. and Recycled Office Interiors, Inc., whether such sale is public
or private, as any such right of notification may be required pursuant to the
Georgia Uniform Commercial Code, including but not limited to O.C.G.A.
Sub-Section 11-9-611; and (ii) that on or about the date of this Agreement all
of the Collateral has or will be sold by TENANT to Reconditioned Systems, Inc.
and LANDLORD waives any right to object that such sale was not conducted in a
commercially reasonable manner for fair and reasonable consideration.
3.
TENANT agrees to allow the LANDLORD to show the premises to potential
tenants upon reasonable notice.
4.
TENANT, Releasor, does hereby remise and release LANDLORD, Releasee,
from all matters of action and actions, arbitrations, suites, debts, sum or
sums of money, accounts, damages, judgments, claims and demands whatsoever, in
law or in equity, contract or tort, which Releasor ever had, may have had or
now has against Releasee, arise from the Lease Agreement, any other agreements,
expressed or implied, or any course of dealings or other relationship, between
the parties, or their contractors, agents, attorneys, or employees. Releasor
further agrees to indemnify and otherwise hold Releasee harmless, including its
attorneys fees, from claims of damages aserted by third parties arising from the
Lease Agreement, any other agreements, expressed or implied, or any course of
dealings or other relationship between parties. As used herein, the terms
"Releasor" and "Releasee" shall be construed to include, where appropriate,
their respective heirs, executors, administrators, successors, assigns,
officers, stockholders, partners, spouses, attnorneys, directors, employees,
affiliates, agents, subsidiaries and related corporations. This Agreement
shall not be deemed to release the parties from their obligations arising from
the Lease Agreement not amended or otherwise modified herein.
5.
This Settlement Agreement shall contain the sole and entire Agreement
between the parties to the subject matter contained therein. All
representations, inducements, promises or agreements, oral or otherwise,
between the parties, their agents, attorneys, or employees, not embodied herein,
shall be deemed merged into these documents, and shall hae no force or effect.
IN WITNESS MY HAND AND SEAL WHEREOF, the parties hereto have duly
executed this Agreement on the day and year first above written.
TENANT;
FIRST CAPITAL BANK
By: /s/ James Donald Tate /s/ M.Tood Westfall (Seal)
Senior Vice President Notary Public
LANDLORD:
PROLOGIS TRUST
/S/ D. M. (Illegible) /S/ Patricia T. Ferguson
Notary Public