QUITCLAIM BILL OF SALE
QUITCLAIM XXXX OF
SALE
THIS XXXX OF SALE, between
TRIDENT GROWTH FUND,
L.P. (“Trident”) and FEQ GAS, L.L.C. (“FEQ”,
and together with Trident collectively referred to as the “Sellers” or
“Lenders”) and GEM SOLUTIONS,
INC. (“Buyer”), is made with reference to the following
facts:
1. Loan
made by Trident 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 Compusven, Inc., a Florida corporation (the “Debtor”) pursuant to
a written guaranty agreement which guaranty was secured by a lien on all of
Debtor’s property for which Debtor executed a security
agreement. Hereinafter, the guaranty agreement, security agreement
and any other documents executed by Debtor 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 Debtor thereunder
shall be referred to as the “Trident Obligations”.
2. Loan
made by FEQ on July 13, 2007 to GeM in the principal amount of $100,000 for
which GeM issued a promissory note and, together with Debtor 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 Debtor thereunder shall be referred to as the “FEQ
Obligations”. The FEQ Obligations are secured by a lien on all of
Debtor’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”.
3. 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.
4. 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”) and on May 1, 2008 said Court confirmed the Plan of Reorganization
(“Plan”) filed by Gem therein.
5. Various
events of default exist under the Loan Documents including, without limitation,
the following: (i) both GeM and Debtor defaulted in making payments
required under the Trident Loan Documents and any and all cure periods have
expired and (ii) the filing of the Bankruptcy Proceedings,
and, by virtue of that certain Surrender Agreement dated June 2, 2008 by and
among the Lenders and the Debtor, the Debtor surrendered to and the Lenders took
possession of all of the property of the Debtor which is described on Schedule A
annexed hereto
(hereinafter,
the “Collateral”). Pursuant to the Surrender Agreement, the Debtor
consented to the Lenders’ exercise of their rights and remedies as a secured
creditors under the Uniform Commercial Code as enacted in the States of Delaware
and Florida, as applicable (“UCC”) and to the sale of the Collateral owned by
the Debtor.
6. On
______________ the Lenders issued notice of sale in accordance with the
UCC.
NOW THEREFORE, in
consideration of the treatment each of the Lenders will receive on account of
and in satisfaction their respective secured claims against both GeM and Debtor
upon consummation of the Plan, Sellers do hereby sell and transfer to Buyer the
Collateral pursuant to applicable provisions of the UCC. By
acceptance and delivery of said property, the Buyer affirms that it has not
relied on Sellers’ skill or judgment and Sellers have not furnished said
property for any particular purpose. The Sellers are not a
manufacturers, distributors, dealers or merchants in or with said personal
property.
The
transfer of the Collateral to Buyer hereunder shall be and is free and clear of
all liens, claims and encumbrances.
Except as
set forth hereinabove, SELLERS
MAKE NO WARRANTIES OF TITLE AND MAKE NO WARRANTY OF MERCHANTABILITY IN RESPECT
TO SAID COLLATERAL, WHICH PROPERTY IS SOLD AS IS, WHERE IS, AND WITH ALL FAULTS
INCLUDING ANY LATENT DEFECT OR NON-DISCOVERABLE DEFECT, WITHOUT ANY LIABILITY OR
OTHER OBLIGATIONS ON THE PART OF SELLERS WHATSOEVER. SELLERS MAKE NO
WARRANTY THAT SAID PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE AND MAKE NO OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. BUYER HEREBY FULLY
ASSUMES ALL RISKS IN CONNECTION WITH SUCH COLLATERAL PURCHASED
HEREUNDER.
This is a
final and exclusive expression of the agreement of the Sellers and the Buyer and
no course of dealing or usage of trade or course of performance shall be
relevant to explain or supplement any term expressed herein.
By
acceptance of delivery of said property, the Buyer acknowledges that the Buyer
has either examined said property as fully as desired or has been given the
opportunity for such examination and has refused to make such
examination.
Buyer
agrees and acknowledges that it is the Buyer’s sole and exclusive responsibility
and obligation, to take possession of or remove (at the Buyer’s option) the
Collateral from its current location within three (3) business days of the date
hereof at its sole cost, risk and expense and indemnify and to reimburse Sellers
for all costs, expenses, liabilities and claims of any kind and nature
(including legal fees incurred by Sellers) based on, or arising from, the taking
of possession or removal or failure to take possession of or remove any of the
Collateral, including claims for repairs to the premises and damages caused by
taking possession of and/or removal of any of
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the
Collateral, and, if the Buyer does not take possession of or remove said
Collateral within three (3) business days of the date hereof then, thereafter,
Buyer must arrange for Buyer’s occupation of the premises with the landlord of
the premises or, at its own cost, risk and expense.
Buyer
hereby agrees to pay any and all such sales taxes levied because of the sale of
the Collateral conveyed hereby and hereby indemnifies Sellers for all such
taxes, levies, charges and penalties; provided, such indemnification shall not
extend to any liability of the Debtor may have for any sales or other tax
liability existing prior to the date hereof.
This Xxxx
of Sale shall be governed by and construed in accordance with the laws of the
State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of law.
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IN WITNESS WHEREOF, the
parties have executed this instrument this 2nd day of June, 2008.
|
TRIDENT
GROWTH FUND, L.P.
|
| By: Trident Management, LLC, General Partner |
|
/s/
Xxxxx Xxxx
|
|
|
|
FEQ
GAS, L.L.C.
|
| /s/ Xxxxxx X. Xxxxxxxx |
| GEM SOLUTIONS, INC. |
| /s/ Xxxx X. Xxxxx |
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EXHIBIT
A
COLLATERAL TO BE
SOLD:
Accounts,
cash contract rights, property, equipment, general intangibles (including,
without limitation, all goodwill, trademarks, service marks, trade styles, trade
names, patents, patent applications, copyrights), inventory, instruments,
deposit accounts, chattle paper, leases, and all other assets and (a) all
attachments, accessions, accessories, tools, parts, supplies, increases and
additions to and all replacements of and substitutions for any of the foregoing
property described in this Exhibit A, (b) all products and proceeds of the
foregoing property described in this Exhibit A, (c) all accounts, contract
rights, general intangibles, instruments, rents, moneys, payments, and all other
rights arising out of a sale, lease, or other disposition of any of the
foregoing property , described in this Exhibit A and (d) all proceeds (including
insurance proceeds) from the sale, destruction, loss or other disposition of any
of the foregoing property described in this Exhibit A.
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