ASSIGNMENT OF LEASE
This
Assignment of Lease (this “Assignment”) is made and entered into effective on
May 16, 2008 (the “Effective Date”), by and between ProLink
Solutions, LLC, d/b/a ProLink Capital
(the
“Assignor,” or “ProLink”) and FOC Financial Limited Partnership (the
“Assignee”).
Background
Assignor
is the lessor under that certain Lease Agreement dated April 3, 2008, by and
between Assignor and PACAF, a copy of which is attached to this Agreement as
Exhibit “A” (the “Lease”).
Under
the
Terms of the Lease, the Golf Course and Assignor have entered into and Assignor
has agreed to provide installation, service, support and maintenance of the
ProLink System during the term of the Lease.
Assignor
desires to assign the Assignor’s rights under the Lease to Assignee on the terms
and conditions set forth in this Assignment.
Now,
therefore, in consideration of the sum of One Million Seven Hundred Sixty One
Thousand Dollars ($1,761,000) (Purchase Price), and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
Terms
1. Background.
The
parties agree and acknowledge that the Background section is true in all
respects and shall be incorporated into this Agreement by
reference.
2. Assignment.
Assignor hereby assigns and transfers to Assignee, Assignor’s rights under the
Lease, including, but not limited to the following: (i) to receive all of the
fees and payments due under the Lease and pay for play amount, commencing upon
the Commencement Date (as defined in the Lease); (ii) to enforce the Lease
in
the event that Prolink fails to do so on Assignees behalf; (iii) to xxxx and
collect all fees from the Golf Course in the event that Prolink fails to do
so
on Assignees behalf. (iv) to receive the proceeds of the insurance required
under the Lease or otherwise provided to cover loss of the ProLink System which
is the subject of the Lease and liability thereunder; (v) to consent to any
assignment by the Golf Course, and to recover any damages for the Golf Course’s
breach of the Lease in the event that Prolink fails to do so on Assignees
behalf; (collectively, the “Lease Rights”).
Notwithstanding
anything herein to the contrary, Assignor and/or ProLink Solutions, hereby
acknowledge and agree that Assignor and/or ProLink Solutions retains all
obligations of the manufacturer under the Lease other than those specifically
assigned to the Assignee and agrees to fulfill said obligations under the Lease,
including, but not limited to operating, maintaining, repairing and replacing
the ProLink System, including installation of the System according to the terms
of the Agreement, defending patent suits against the Golf Course, providing
software and hardware upgrades to the ProLink System in accordance with the
Service Agreement, removing the ProLink System if authorized under the Lease
and
approved by Assignee. [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2].
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3. Indemnification.
Assignor does hereby indemnify and hold Assignee harmless from any liability
claims relative to the Lease, except those arising out of Assignee’s gross
negligence or willful misconduct.
Assignor
does hereby covenant and agree that Assignor shall, upon Assignee’s request,
enforce the rights of Assignee and/or Assignor under the Lease, defend any
claims against Assignee or Assignor under the Lease, and defend any patent
suits
against the Golf Course, Assignee and/or Assignor, all at Assignor’s sole
expense; however, Assignor shall consult with Assignee and obtain Assignee’s
consent, which shall not be unreasonably withheld, prior to finalizing any
action which may affect Assignee. Assignor does hereby covenant and agree to
pay
any expenses incurred by Assignee, including attorneys’ fees, paralegals’ fees,
legal assistants’ fees and costs, in enforcing the rights of Assignee and/or
Assignor under the Lease, defending any claims against Assignee or Assignor
under the Lease, and defending any patent suits against the Golf Course,
Assignee and/or Assignor.
4. Lease
Payments.
The
parties acknowledge and agree that effective as of the date of this Assignment,
all future payments due under the Lease shall be payable for the benefit of
Assignee. On or before the 7th
day of
each month, ProLink will (i) provide Assignee a report identifying the number
of
rounds played at the Golf Course and the applicable usage fee per round (ii)
send an invoice to the Golf Course for the fees due for the preceding month
and
(iii) upon written request of Assignee cause the future payments due to be
remitted to an account designated by the Assignee.
5. Payment
Allocation. The
parties agree that the fees collected monthly will be allocated as follows:
(i)
all fees collected during the twelve month period commencing July1, 2008 through
June 30, 2009 will be paid [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2].(ii)
All
fees collected during all subsequent twelve month period commencing July 1,
2009
will be paid [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2],
any
excess will be shared equally between Assignor and Assignee. Prolink will
provide the Assignee with a monthly statement computing the Assignees
Unrecovered Investment. [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
6. Remarketing. In
the
Event that the Lease is cancelled by the Golf Course and any units are returned
by the Golf Course, [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2].
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7. Change
in Control. In
the
event there is a Change in Control of Prolink, and upon receipt of a written
request from Assignee within 90 days of the Change in Control, Assignee will
have the right to require Prolink to repurchase the its rights title and
interest in the Lease for an amount equal to the Assignees un recovered
investment. For purposes of this Agreement, a "Change in Control" shall mean
(i)
an acquisition of any voting securities of the Company (the "Voting Securities")
by any "person" (as the term "person" is used for purposes of Section
13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) immediately after which such person has "beneficial ownership"
(within the meaning of Rule 13d-3 promulgated under the 0000 Xxx) ("Beneficial
Ownership") of 51% or more of the combined voting power of the Company's then
outstanding Voting Securities or (ii) a merger or consolidation that results
in
more than 50% of the combined voting power of the Company's then outstanding
Voting Securities of the Company or its successor changing ownership (whether
or
not approved by the Board); (iii) the sale of all or substantially all of the
Company's assets; (iv) approval by the shareholders of the Company of a plan
of
complete liquidation of the Company; or (v) the individuals constituting the
Board as of the date of this Agreement (the "Incumbent Board")cease for any
reason to constitute at least 1/2 of the members of the Board; provided,
however, that if the election, or nomination for election by the Company's
stockholders, of any new director was approved by a vote of the Incumbent Board,
such new director shall be considered a member of the Incumbent Board.
8. Authorization.
The
execution and the delivery of this Assignment by Assignor has been duly
authorized by Assignor, which is duly organized and in good standing under
the
corporate laws of its jurisdiction, this Assignment has been duly and validly
executed by Assignor, and no further corporate or other action is necessary
on
its part to make this Assignment valid and binding upon Assignor and enforceable
against Assignor in accordance with the terms hereof, or to carry out the
transactions contemplated hereby.
9. No
Violations.
The
execution, delivery and performance of this Assignment by Assignor will not
(i)
constitute a breach or a violation of any of the organizational documents or
by-laws of Assignor or of any law, rule or regulation, agreement, indenture,
deed of trust, mortgage loan, agreement or other instrument to which Assignor
is
a party or by which Assignor is bound; (ii) constitute a violation of any order,
judgment or decree to which Assignor is a party or by which any of the assets
or
properties of Assignor are bound or affected; or (iii) result in the creation
of
any lien, charge or encumbrance upon any of the assets or properties of
Assignor.
10. Consents
and Approvals.
No
consent, approval or authorization is required to be obtained by Assignor in
connection with the execution or delivery of this Assignment by Assignor or
the
consummation by Assignor of the transactions contemplated hereby except as
has
been timely obtained prior to the execution of this Agreement.
11. Title
to Lease.
Assignor has a valid contractual interest in, the Lease and the Lease Rights,
subject to no liens, claims, charges, or encumbrances of any kind. In the event
liens or encumbrances arise, Assignor shall have the opportunity to defend
the
same. In addition, Assignor represents and warrants that to the best of its
knowledge Assignor has paid or will pay all taxes (including state sales and
property tax) applicable to the Lease that have accrued at any time prior to
the
closing on this sale transaction. In the event taxes are due for the period
of
time prior to the closing relating to the Lease, such amount shall be the
responsibility of Assignor.
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12. Breach.
In the
event of the breach of this Assignment by either party, the other party shall
have the right to pursue any remedy provided by applicable law, including
specific performance. Any party failing to comply with the terms of this
Assignment will pay all expenses, including reasonable attorneys’ fees,
paralegals’ fees, legal assistants’ fees and costs, including those incurred on
the appellate level and those incurred in connection with a determination of
the
amount of such fees and costs to which the other party is entitled, incurred
by
the other party to this agreement as a result of such failure.
At
any
time and from time to time, at the request of Assignee, Assignor shall execute
and deliver to Assignee any new, additional, or confirmatory instrument and
any
other document necessary to transfer in Assignee all right, title, and interest
in and to the Lease or to enable Assignee to realize upon or to otherwise enjoy
the benefits of the Lease or to carry into effect the intent and purposes of
this Assignment. Assignor warrants to Assignee that it has good and valid title
to the Lease, free and clear of any liens and claims of any person and that
it
has good right and full, power and authority to sell, assign, and transfer
the
Lease to Assignee.
(Signatures
on Following Page)
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Assignor
and Assignee have executed this Assignment as of the date and year first above
written.
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ASSIGNOR:
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PROLINK
SOLUTIONS, LLC, a Delaware limited
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liability
company
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By:
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/s/
Xxxxxxxx X. Xxxx
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Name:
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Xxxxxxxx
X. Xxxx
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| As its: Chief Executive Officer | |
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ASSIGNEE:
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FOC
Financial Limited Partnership
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By:
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*WE
HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS CONTAINED IN THIS
EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE INFORMATION SUBJECT TO THE
CONFIDENTIALITY REQUEST.*
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EXHIBIT
“A”
Lease
EXHIBIT
“B”
Service
Agreement
