Exhibit 10.20
EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Assignment and
Assumption Agreement") is made, executed and delivered as of October 2, 2006
by and among each of TUG Logistics, Inc., Glare Logistics Inc., and TUG
Logistics (Miami), Inc. (collectively, the "Assignors) and Dolphin US Logistics,
Inc. (tbr: TUG USA, Inc.) (the "Assignee"). All capitalized terms not otherwise
defined herein shall have the respective meanings ascribed to them in the
Purchase Agreement (as defined below).
WITNESSETH:
WHEREAS, the parties hereto have entered into that certain
Asset/Stock Purchase Agreement dated as of October 2, 2006 (the "Purchase
Agreement"); and
WHEREAS, in connection with the transactions contemplated by the
Purchase Agreement, the Assignors wish to assign all of their rights, title and
interest in, to and under (i) the "Contracts" as defined in the Purchase
Agreement (the "Contracts") and (ii) the "Leases" as defined in the Purchase
Agreement (the "Leases" and together with the Contracts, the "Assumed
Agreements").
NOW, THEREFORE, in consideration of the foregoing premises, the
consideration set forth in the Purchase Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
Each of the Assignors hereby assigns, transfers and conveys to the
Assignee all of such Assignor's right, title and interest in, to and under the
Assumed Agreements.
1. The Assignee hereby assumes all of each of the Assignors' right,
title and interest in, to and under the Assumed Agreements, and hereby agrees to
perform and discharge, as the same shall become due, all duties and obligations
of each of the Assignors under the Assumed Agreements, but only such duties and
obligations which arise during and are attributable to the period on and after
the date hereof.
2. The Assignors shall authorize and direct each
customer/retailer/vendor, as applicable (a "Customer"), under the Contracts to
make payment of all invoices and other moneys due or arising under the Contracts
directly to accounts maintained and/or acquired from the Assignors by the
Assignee (or any account designated by the Assignee as a successor or
replacement bank account) and the Assignors will write letters to each Customer
of the Assignors or to such agents or representatives of the Assignors in whose
hands or control exists any moneys hereby assigned, as may be required by the
Assignee, informing each such person of this Assignment and instructing such
persons to remit promptly to the Assignee all moneys hereby assigned.
3. The Assignors further covenant that they shall cause each
Customer, as required by the applicable Assumed Agreement, to execute a consent
(a "Consent") substantially in the form of EXHIBIT A hereto, upon execution and
delivery of this Assignment for each Customer listed in SCHEDULE 1 hereto.
4. To the extent that the Assignors are unable to obtain any
necessary
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consents of third parties to the consummation of the transactions contemplated
hereby under the Assumed Agreements, each of the Assignors covenants and agrees
to use its or his best efforts to obtain such consents subsequent to the date
hereof. To the extent that the assignment or the agreement to assign to the
Assignee any Assumed Agreements hereunder would constitute a breach of such
Assumed Agreement, this Assignment and Assumption Agreement shall not constitute
any such assignment or agreement to assign unless and until a Consent to such
assignment or a waiver of the requirement to obtain such Consent is obtained;
provided, however, that, prior to the receipt of such Consent, each of the
Assignors covenants and agrees (i) not to assign such Assumed Agreement to any
party other than the Assignee or the Assignee's designee, (ii) to use its best
efforts keep such Assumed Agreement in full force and effect, except as
otherwise directed by the Assignee, (iii) to operate under such Assumed
Agreement only under the direction of the Assignee, (iv) to remit or otherwise
provide to the Assignee all revenues, if any, and other benefits derived from
such Assumed Agreement and (v) in the event that such Consent cannot be
obtained, to cooperate with the Assignee and the other party to such Assumed
Agreement to enable the Assignee to enter into a contract directly with such
other party.
5. The Assignors hereby agree on demand to make, execute,
acknowledge and deliver any and all further documents, if any, reasonably
required to evidence or in any manner perfect the transfer of the Assumed
Agreements, or any right, title, interest or duty thereunder, to the Assignee.
6. This Assignment and Assumption Agreement and each Consent may be
executed by the Assignor, the Assignee and Customers on separate counterparts
without in any way adversely affecting the validity of said consent on this
Assignment.
7. This Assignment and Assumption Agreement shall be governed by the
laws of the State of New York and may not be amended or changed except by an
instrument in writing signed by Each of the Assignors and the Assignee.
This Assignment and Assumption and Agreement is executed pursuant to
the Purchase Agreement, and is therefore subject to, and is entitled to the
benefits of, the representations, warranties, covenants, terms and provisions
set forth in the Purchase Agreement.
******
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IN WITNESS WHEREOF, each of the Assignors and the Assignee have
caused this Assignment and Assumption Agreement to be executed in its name by a
duly authorized representative as of the date first above written.
ASSIGNORS:
TUG LOGISTICS, INC.
By:_______________________________
Name:
Title:
GLARE LOGISTICS INC. TUG LOGISTICS (MIAMI), INC.
By:_______________________________ By:_______________________________
Name: Name:
Title: Title:
ASSIGNEE:
DOLPHIN US LOGISTICS INC.
By:_______________________________
Name:
Title:
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EXHIBIT A
FORM OF CONSENT
________, 2006
[Company Name
Attn: [ ]
[Address]
Re: Consent to Assignment of the [ ] Agreement dated
[ ] (the "Agreement") between [TUG Entity Name]
(the "Company") and [Company Name] ("[Company]"
or "you")
Dear [ ]:
The Company is selling and transferring to an unaffiliated third-party, Dolphin
US Logistics, Inc. ("Dolphin"), substantially all of its assets and rights (the
"Sale"). On [ ], the Company signed the Agreement with you. Pursuant to section
[ ] of the Agreement, your consent may be required to assign the Agreement to
Dolphin.
The purpose of this letter is to request your consent to the assignment by the
Company of all its right, title and interest in and under the Agreement to
Dolphin. The assignment will be effective as of the closing date of the Sale
which we currently expect to occur on or about September ___, 2006 (the
"Effective Date"). Dolphin, as of the Effective Date, will pay, discharge and
perform all of the obligation and liabilities of the Company under the
Agreement. Notice of the occurrence of the Effective Date will be delivered to
you promptly thereafter.
The Company respectfully requests that you signify your approval of such
assignment by executing a copy of this letter. Please fax the executed copy to
my attention at (000) 000-0000 and also mail the original copy of this letter
to:
Xxxxx Xxxxxxx Xxxxxxx Israels LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. XxXxxxxxx
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If you have any questions, please call me at (000-000-0000). Thank you for
your cooperation.
Very truly yours,
Xxxxxx X. XxXxxxxxx
Accepted and Agreed to:
[Company Name]
By:___________________________
Name:
Date:
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SCHEDULE I
LIST OF CUSTOMERS
REAL PROPERTY LEASES
1. Bonanza Bay, LLC: Real Property Lease for 00000 Xxxxxx Xxx, Xxxx xx Xxxxxxxx,
Xxx Xxxxxxx, XX.
2. Landlord: Xxxxxx Center LLC: Real Property Lease for 00000 Xxxxx Xxxxxx Xxx.,
Xxxxxx, Xxx Xxxxxxx, XX 00000.
3. WTDC: Real Property Lease for 0000 XX 00xx Xxx., Xxxxxx Xx. 000, Xxxxx, XX
00000.
4. Business Suites Uptown: Office Lease for Office Suite, Houston, TX; 0000 Xxxx
Xxx Xxxx.
5. Regis: Office Lease for Regis Business Center office space, Georgia,
Atlanta-Xxxxxxx, Location: 00000 Xxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx, XX 00000,
Office Nos. 680, 681 and 683.
6. Bonanza Bay, LLC: Real Property Lease for 00000 Xxxxxx Xxx, Xxxx xx Xxxxxxxx,
Xxx Xxxxxxx, XX.
SERVICE/TRANSPORTATION CONTRACTS
1. United Arab Shipping Co. (UASC) (S.A.G.) Confidential Service Contract No.
2006-FE-06-08.
2. Maersk Line Service Contract No. 129550, Proposal No. 2.1.
3. Cosco Container Lines Americas Inc., Service Contract No. HON06033 Amendment
No . 3.
4. SINOLINES WESTBOUND Service Contract No. 2006-523.
5. ANL SINGAPORE PTE LTD; Amendment No. 3; Service Contract No. WB04FE022.
6. Hapag-Xxxxx Container Linie GmbH, Boiler Plate, E.T. Publication 014, Rule
121 Service Contract No. S6NWE105.
LOAN CONTRACTS
1. United Commercial Bank: Commercial Security Agreement Loan No. 000-00000-0
Acct. No. 207005180.
