|
SURRENDER
AGREEMENT
THIS SURRENDER AGREEMENT (“Surrender Agreement”)
made as of the 2nd day of June, 2008 by and between TRIDENT GROWTH FUND,
L.P. ( “Trident”)
and FEQ Gas LLC
(“FEQ”, together with Trident collectively referred to
as "LENDERS" ), and COMPUSVEN, INC. , a
Florida corporation (the, "OBLIGOR”)
W I T N E
S E T H :
WHEREAS, On April 1, 2005, Trident made a loan to Stellar
Technologies, Inc., now known as GeM Solutions, Inc.
(“GeM”) in the principal amount of $1,600,000 for which
GeM issued a promissory note and entered into a loan agreement,
security agreement, a warrant to purchase shares, and other
documents related to or in furtherance of that transaction as well
as various amendments thereafter (the “GeM Loan
Documents”). GeM’s obligations under the GeM
Loan Documents were guaranteed by the Obligor pursuant to a written
guaranty agreement which guaranty was secured by a lien on all of
Obligor’s property for which Obligor executed a security
agreement. Hereinafter, the guaranty agreement, security
agreement and any other documents executed by Obligor in connection
with the GeM Loan Documents, together with the GeM Loan Documents
shall collectively be referred to as the “Trident Loan
Documents” and the obligations of Obligor thereunder shall be
referred to as the “Trident Obligations”;
WHEREAS, based on the Trident Loan Documents,
the amount of the Trident Obligations, secured by a lien on all of
the Obligor’s property and proceeds thereof as of July 31,
2007 is in the principal and interest amount of
$1,678,904.11.
WHEREAS, on July 13, 2007 FEQ made a loan to GeM in the
principal amount of $100,000 for which GeM issued a promissory note
and, together with Obligor entered into a loan and security
agreement and other documents related to or in furtherance of that
transaction as well as various amendments thereafter (the
“FEQ Loan Documents”) and the obligations of the
Obligor thereunder shall be referred to as the “FEQ
Obligations”. The FEQ Obligations are secured by a
lien on all of Obligor’s property and the proceeds
thereof. Hereinafter, the FEQ Loan Documents, together
with the Trident Loan Documents shall collectively be referred to
as the “Loan Documents” and the Trident Obligations and
FEQ Obligations shall be collectively referred to as the
“Obligations”;
WHEREAS, on July 13, 2007, Trident and FEQ entered into that
certain Intercreditor Agreement pursuant to which the parties agree
that the liens held by FEQ have priority over the liens held by
Trident to the extent provided therein;
WHEREAS , pursuant to the Loan Documents the Obligor granted
to each of the Lenders a perfected valid security interest in all
property of the Obligor to secure the prompt payment, performance
and discharge in full of all of the Obligor’s obligations
under the Loan Documents;
WHEREAS, various events of default exist under the Loan
Documents including, without limitation, the following (the
“Existing Defaults”): (i) both GeM and
Obligor defaulted in making payments required under the Trident
Loan Documents and any and all cure periods
have
expired and (ii) on September 20, 2007
GeM filed a petition under Chapter 11 of the US Bankruptcy
Code in the US Bankruptcy Court for the District of Delaware
(“Bankruptcy Proceedings”);
WHEREAS, Lenders have declared all Obligations immediately
due and owing and Obligor is unable to pay same.
WHEREAS, GeM filed a plan of reorganization in the
Bankruptcy Proceedings (the “Plan”) which was confirmed
by the Bankruptcy Court by order dated May 1, 2008.
WHEREAS, under the Plan, each of the Lenders will receive
certain consideration on account of and in satisfaction their
respective secured claims against both GeM and Obligor for upon
consummation of the Plan;
WHEREAS, the consummation of the Plan is
conditioned upon the occurrence of the “Effective Date”
(as defined in the Plan) and a condition to the occurrence of
Effective Date and Lenders’ receipt of the consideration
provided to them under the Plan on account of their claims against
GeM and the Obligor is the transfer of all of Obligor’s
property to GeM, as a reorganized debtor, free and clear of all
liens;
WHEREAS , Obligor desires to surrender to the Lenders, and
the Lenders desire to accept and take possession of, upon the terms
and subject to the conditions set forth herein, the Collateral (as
defined herein) for disposition by the Lenders as a secured parties
under the Uniform Commercial Code as presently in effect in the
States of Florida and/or Delaware, as applicable
(“UCC”);
NOW THEREFORE, in consideration of the mutual promises,
terms and provisions contained herein, the parties intending to be
legally bound, hereby agree as follows:
1.
RECITALS . The parties agree that the recitals
set forth hereinabove are incorporated by reference as if fully set
forth herein and are hereby made a part of this Surrender
Agreement.
2.
DEFINITIONS . All capitalized terms used but not
defined in the this Surrender Agreement shall have the meanings
ascribed to them in the Loan Documents.
3.
LOAN DOCUMENTS STILL IN FORCE.
(a)
Except
as expressly and specifically modified by this Surrender Agreement,
notwithstanding any other provisions of this Surrender Agreement or
any claims of the parties to the contrary, the Loan Documents shall
and do hereby remain in full force and effect, and the terms and
provisions of the Loan Documents are hereby ratified and
confirmed.
(b)
Except
as expressly and specifically modified by this Surrender Agreement,
all parties shall remain bound to, perform and continue to perform
all of their respective obligations under the Loan Documents and
shall continue to have all of their rights and remedies thereunder
and shall be bound by all of the terms and provisions of the
Loan
Documents. Without
limiting the generality of the foregoing, the parties hereby agree
that this Surrender Agreement is not a substitution, novation,
discharge or release of any or all of the Loan Documents or the
indebtedness evidenced and/or secured
thereby.
4.
PRIORITY . It is hereby expressly acknowledged,
ratified, confirmed and agreed that the Loan Documents secure the
Obligations, notwithstanding any claims of any of the parties to
the contrary. Obligor acknowledges and agrees that the
security interests in Obligor’s property granted to the
Lenders under the Loan Documents remain valid, perfected, first
priority security interests therein (subject to the Intercreditor
Agreement), and that this Surrender Agreement does not disturb,
alter, or lessen the priority of any such security interests
granted to the Lenders under the Loan Documents and Intercreditor
Agreement. The Obligor represents and warrants that, as
of the date of this Surrender Agreement, there are no claims,
setoffs or defenses to the Lenders’ exercise of any rights or
remedies available to the Lenders under the terms and provisions of
the Loan Documents.
5.
EXISTING DEFAULTS .
(a)
Acknowledgments . Obligor acknowledges, admits
and agrees that (i) the Existing Defaults have occurred under the
Loan Documents and are existing, (ii) the appropriate parties have
each been lawfully and properly notified of same and (iii) all
obligations of Obligor to the Lenders under the Loan Documents are
presently outstanding and are immediately due and payable in full,
without defense, setoff or counterclaim.
(b)
Enforcement . Obligor agrees, admits and
acknowledges that said Existing Defaults are material defaults
under the Loan Documents and that by virtue thereof, the Lender
have the absolute right to pursue its remedies and enforce
immediate payment of the Obligations and that there are no defenses
or disputes as to the existence of the Existing Defaults and
Lender’s right to pursue its remedies by virtue
thereof.
(c)
No Waiver of Existing Defaults . Notwithstanding
this Surrender Agreement, the Lenders do not waive any of the
Existing Defaults, but expressly reserves same, which remain in
full force and effect.
6.
DEBT ACKNOWLEDGMENT.
(a)
Obligor
acknowledges, admits and agrees that (i) as of July 31, 2007 the
total principal and accrued interest outstanding on the Trident
Obligations is in the sum of $1,678,904.11, plus all interest
accruing after July 31, 2007, plus all other costs, expenses,
claims and charges to which the Trident is entitled under the
Trident Loan Documents, against which obligation there are no
offsets, defenses, claims, counterclaims or objections by Obligor,
and (ii) as of July 31, 2007 the total principal outstanding on the
FEQ Obligations is in the sum of $100,000, plus all accrued and
unpaid interest which is due and owing under the FEQ Loan
Documents, plus all other costs, expenses, claims and charges to
which the FEQ is entitled under the FEQ Loan Documents, against
which obligation there are no offsets, defenses, claims,
counterclaims or objections by Obligor.
(b)
The
Obligations are the valid liabilities and obligations of
Obligor.
|
