This Security Agreement involves
Title: AGREEMENT TO ACCEPT COLLATERAL IN FULL SATISFACTION OF OBLIGATIONS
Industry: Trucking Sector: Transportation
AGREEMENT TO ACCEPT
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.
(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 Debtor has not transferred, conveyed, assigned or otherwise disposed of any material portion of (or any of Debtor’s then existing right, title or interest in) the Collateral other than in the ordinary course of Debtor’s business.
(e) CORPORATE AUTHORITY. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby nor compliance by the Corporation with any on the provisions hereof will:
(1) Conflict with or result in a breach of any provision of its Articles of Incorporation or By-Laws or similar documents of any Subsidiary;
(2) Result in a default (or give rise to any right of termination, cancellation, or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which the Corporation is a party, or by which any of its properties or asse