AGREEMENT TO ACCEPT
COLLATERAL
IN FULL SATISFACTION OF OBLIGATIONS
THIS AGREEMENT TO ACCEPT COLLATERAL IN FULL
SATISFACTION OF OBLIGATIONS (“ Agreement ”) is made and
entered into, effective May 6, 2009 by and between GO SMART
MOVE, LLC, a Colorado limited liability company (hereinafter
referred to as “ Lender ” or “ Secured
Party ”), and SMART MOVE, INC., a Delaware
corporation (hereinafter referred to as “ Debtor
” or as the “ Corporation ”).
A. For good and valuable consideration,
Debtor executed and delivered the Promissory Notes listed on
Exhibit A hereto (the “ Notes” ) in favor
of the creditors listed on Exhibit A (each a “
Creditor ”). As of the date hereof, Debtor is indebted
under the Notes (and all documents delivered pursuant thereto) in
the amounts set forth on Exhibit A hereto, principal and
interest, plus costs and expenses of collection including
reasonable attorneys’ fees (the “ Debtor’s
Indebtedness ”).
B. The obligations of Debtor to the
Creditors under the Notes are secured by Security Agreements from
Debtor to Creditors set forth on Exhibit A (the “
Security Agreements ”), covering, inter alia, a
security interest in the assets, property, machinery and equipment
described in the Security Agreements and summarized on
Exhibit A hereto, together with (i) all substitutions and
replacements for and products of any of the foregoing; (ii) in
the case of all goods, all accessions; (iii) all accessories,
attachments, parts, equipment and repairs now or hereafter attached
or affixed to or used in connection with any goods; (iv) all
warehouse receipts, bills of lading and other documents of title
now or hereafter covering such goods; (v) any money, or other
assets of the Debtor that now or hereafter come into the
possession, custody, or control of the Creditors; and
(vi) proceeds of any and all of the foregoing (the “
Collateral ”).
D. The aforementioned Notes and Security
Agreements and any documents or instruments incorporated therein or
executed by and between the Creditors and the Debtor in connection
therewith are referred to herein collectively as the “
Loan Documents ”.
E. Debtor is in
default of its obligations to Creditors under the Loan
Documents.
F. As provided
and permitted by the Loan Documents, Lender accelerated
Debtor’s Indebtedness.
G. Debtor is unable to meet the demand of
Creditors for full satisfaction of its obligations to Lender under
the Loan Documents.
H. All previous interim agreements and
arrangements between Creditors or Lender and Debtor have been
entered into either to preserve the value of Collateral or to
mitigate disruption of Debtor’s services in process on behalf
of customers. Creditors and Debtor have agreed to Creditors’
acceptance of the Collateral in full satisfaction of Debtor’s
Indebtedness, in a manner which complies with the provisions of the
Uniform Commercial Code now in effect in the State of
Colorado.
I. Creditors have formed and organized
Lender as a Colorado limited liability company to act in an
administrative and representative capacity on behalf of Creditors
in respect of their rights and interests under Notes and Security
Agreements covering the Collateral. Pursuant to a Contribution
Agreement between Creditors and Lender, Creditors have assigned to
Lender as a capital contribution all of their interest in and to
the Notes, the Security Agreements and the Collateral in exchange
for notes and equity interests in Lender.
J. The Lender or Secured Party and the
Debtor acknowledge that the current market value of the Collateral
does not exceed the total monetary obligation of the Debtor that is
currently due and payable as a result of Debtor’s default of
its obligations to Creditors under the loan documents.
NOW, THEREFORE , in consideration of the above recitals, as
well as the covenants and representations contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Lender and Debtor hereby agree as
follows:
(1) RECITALS AND THIRD PARTY
BENEFICARIES. The above recitals are acknowledged by the
parties to be true and correct and are incorporated herein by
reference as substantive provisions of this Agreement. It is
acknowledged and agreed that Creditors shall be deemed express
third party beneficiaries of this Agreement.
(2) ACCEPTANCE OF COLLATERAL IN FULL
SATISFACTION OF DEBTOR’S INDEBTEDNESS . Pursuant to
Section 4-9-620(a) of the Uniform Commercial Code of the State
of Colorado (“ UCC ”), and particularly as
codified under the statutes of the State of Colorado as Colorado
Revised Statutes Section 4-9-620(a), Lender and Debtor agree
that Lender has accepted the Collateral as full satisfaction of the
Debtor’s Original Indebtedness, and obligations to Lender
under the Loan Documents, including amounts due under the
Notes.
(3) WAIVER OF RIGHT TO NOTIFICATION OF
DISPOSITION OF COLLATERAL, WAIVER OR RIGHT TO RQUIRE DISPOSITION OF
COLLATERAL, AND WAIVER OF RIGHT TO REDEEM COLLATERAL . Pursuant
to Colorado Revised Statutes Section 4-9-624(a)(b)(c), Debtor
hereby waives its right to notification of disposition of
Collateral under Section 4-9-611, waives its right to require
disposition of Collateral under Section 4-9-620(e), and waives
its right to redeem the Collateral under Section 4-9-623 of
the UCC.
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(4) AGREEMENT OF DEBTOR . Debtor
agrees to the following:
(a) On the date hereof and in connection
with Lender’s foreclosure of its security interest in the
Collateral, Debtor hereby voluntarily surrenders to Lender the
Collateral together with all of its right, title and interest
therein.
(b) On the date hereof, Debtor shall
deliver to Lender all of the Collateral and shall deliver to Lender
all documents necessary to effectuate and facilitate Debtor’s
voluntary surrender of all of the Collateral to Lender hereunder
and (all such documents to be in a form acceptable to
Lender).
(5) REPRESENTATIONS AND WARRANTIES OF
DEBTOR . To induce Lender to enter into this Agreement and to
accept Debtor’s voluntary surrender of all of Debtor’s
right, title and interest in and to the Collateral, Debtor
represents and warrants to Lender and agrees that:
(a) TITLE AND CONDITION OF CONVEYED
COLLATERAL . Debtor has good and marketable title to and owns
the Collateral, free and clear of all security interests, liens or
encumbrances. Lender has a valid, perfected, first priority
security interest in all of the Collateral. There are no
subordinated or junior liens encumbering the Collateral. The
parties, after due consideration, have concluded and estimated that
the value of the Collateral being surrendered has a fair market
value substantially less than the Debtor’s
Indebtedness.
(b) FAIR MARKET VALUE . The Debtor
represents that all of the payments made and all of the obligations
incurred pursuant to this Agreement are for fair consideration and
for reasonably equivalent value with respect to valid, existing,
secured indebtedness due to Lender.
(c) RESIDENCE OF DEBTOR AND LOCATION OF
COLLATERAL. Debtor stipulates and agrees, and hereby represents
and warrants to Lender that the address specified in Section 9(a)
hereof constitutes the “residence” of Debtor for
purposes of all state or federal laws, statutes or regulations
relating to the payments of or assessment for taxes of all types
(and the reporting of income or filing of returns relating
thereto). The Collateral is located, stored or maintained by Debtor
at locations or locations throughout the United States and some
foreign jurisdictions.
(d) NO TRANSFER OF COLLATERAL . Debtor
represents and warrants to Lender that D
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