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Exhibit 10.3
GENERAL ASSIGNMENT
THIS ASSIGNMENT, made this __________ day of February, 2000 between
Xxxx Xxxxxx Direct, Inc., a Delaware Corporation, with an address at 0000
Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxx Xxxxxx, XX 00000 hereinafter referred to as
ASSIGNOR, to The X.X. Xxxxx Company, Inc., dba: The Xxxxx Group of Los Angeles,
California, hereinafter referred to as ASSIGNEE.
WITNESSETH: That whereas the said Assignor is indebted to diverse
persons, and is desirous of providing for the payment of same, so far as is in
his power, by an assignment of all his property for that purpose:
NOW, THEREFORE, the undersigned Xxxx Xxxxxx Direct, Inc., a Delaware
Corporation, 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxx Xxxxxx, XX 00000 as
Assignor, for a valuable consideration, receipt of which is hereby acknowledged,
does hereby make the following General Assignment for the benefit of Assignor's
creditors to The Xxxxx Group, as Assignee, of Los Angeles, California, under the
following terms and conditions:
1. Assignor does hereby grant, bargain, sell, assign, and transfer to
Assignee, its successors and assigns, in trust for the ultimate benefit of
Assignor's creditors generally, all of the property and assets of the Assignor
of every kind and nature and whatsoever situated, whether in possession,
reversion, remainder, or expectancy, both real and personal, and any interest or
equity therein not exempt from execution; included therein are all merchandise,
furniture, fixtures, machinery, equipment, raw materials, merchandise in
process, book accounts, books, accounts receivable, cash on hand, all chose in
action (personal or otherwise), insurance policies, and all other property of
every kind and nature owned by the Assignor, and without limiting the generality
of the foregoing, including all of the assets pertaining to that certain
distribution of golf related equipment business known as Xxxx Xxxxxx Direct,
Inc., a Delaware Corporation located at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxx xx
Xxx Xxxx Xxxxxx, Xxxxxx of Santa Xxxxx, State of California.
2. Assignor agrees to deliver to Assignee all books of account and
records, to execute and deliver all additional necessary documents immediately
upon request by Assignee, and to endorse all indicia of ownership where required
by Assignee, in order to complete the transfer of all assets to Assignee as
intended by this Assignment including, but not limited to, all of Assignor's
real and personal property and/or Assignor's interest therein, including
mortgages, deeds of trust, motor vehicles and patent rights. Assignee is hereby
authorized to execute all endorsements and demands requiring Assignor's
signature, in the name of Assignor. Assignor further authorizes Assignee to
apply for any deposits, refunds (including specifically, among all others,
claims for refund of taxes paid) or claims wherever necessary, in the name of
Assignor. Assignee is authorized to direct all Assignor's United States mail to
be delivered to Assignee, and Assignee is expressly authorized and directed to
open said mail as agent of Assignor; and to do any thing or act which the
Assignee in its sole and arbitrary discretion deems necessary or advisable to
effectuate the purposes of this assignment.
3. Assignor and Assignee agree to the following:
(a) This instrument transfers legal title and
possession to Assignee of all of said herein above described assets, and,
Assignee, in its own discretion, may determine whether to continue all, or part,
of the business operations, or to
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liquidate said assets; if Assignee deems it advisable he may operate the
business.
(b) Assignee, at its discretion, may sell and
dispose of said assets upon such terms and conditions as it may see fit, at
public or private sale, provided, however, that Assignee shall use its best
efforts to maximize the proceeds from the sale and disposition of said assets;
Assignee shall not be personally liable in any manner, and Assignee's
obligations shall be in a representative capacity, only, as an Assignee for the
general benefit of Assignor's creditors. Said Assignee shall administer this
estate to the best of its ability but it is expressly understood that the
assignee, the assignee's agents, servants or employees shall be liable only for
reasonable care and diligence in said administration, and it shall not be liable
for any act or thing done by the assignee, its agents, servants, or employees in
good faith in connection herewith.
(c) From the proceeds of sale, collections,
operations or other sources, Assignee shall pay itself and retain as Assignee
all of his charges and expenses, together with his own reasonable remuneration
and fee.
i) The Assignee fee shall be fixed at $50,000.00 plus $100,000 for
administrative expenses including legal fees to Assignor's attorney.
Assignee may also pay from said administrative proceeds a remuneration to its
agents and the reasonable fees of his attorney, and may pay a reasonable fee to
Assignor's attorney. Assignee may also pay from said proceeds the costs and
expenses incurred by any creditor who may have levied an attachment or other
lien on any assets of the Assignor. Reasonable and customary administrative
expenses shall also be paid out of proceeds. All of the aforementioned amounts
are to be determined at Assignee's sole but reasonable discretion and judgment.
(d) Assignee may compromise claims, complete or
reject Assignor's executory contracts, discharge at its option any liens on said
assets and any indebtedness which under law is entitled to priority of payment;
Assignee shall have the power to borrow money, hypothecate and pledge the
assets, and to do all matters and things that said Assignor could have done
prior to this Assignment. Any act or thing done by Assignee hereunder shall bind
the assignment estate and the Assignee only in its capacity as Assignee for the
benefit of creditors. Assignee shall have the right to xxx as the successor of
the Assignor, or Assignee is hereby given the right and power to institute and
prosecute legal proceedings in the name of the Assignor, the same as if the
Assignor had itself instituted and prosecuted such proceedings or actions;
Assignee is hereby authorized and has the right to defend all actions instituted
against the Assignor, and to appear on behalf of the Assignor in all proceedings
(legal or otherwise) in which Assignor is a party. Assignor does hereby appoint
Assignee as the Assignor's attorney in fact with full power to act for and in
the place of the Assignor in such actions or proceedings or in any other
matters; including the right to verify all pleadings or other documents on
behalf of Assignor.
(e) Assignor agrees (that provided any such
claim may, by operation of law be not assignable), to make any and all claims
for refund of taxes which may be due from the Director of Internal Revenue for
tax refunds, or otherwise, and to forthwith upon receipt of any such refunds pay
them over to Assignee, and hereby empowers Assignee, as attorney in fact of
Assignor, to make all claims for refunds which may be made by an attorney in
fact.
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(f) After paying all costs and expenses of
administration and all fees and all allowed priority claims, Assignee shall
distribute to all unsecured creditors, pro rata, the remaining net proceeds of
this assignment estate; and said payments to be made until all assets are
exhausted, or these creditors are paid, or settled, in full; thereafter, the
surplus of monies and property, if any, to be transferred and conveyed to
Assignor. If any undistributed dividends to creditors or any reserve or other
funds not to exceed $3,500.00 in the aggregate shall remain unclaimed for a
period of one year after issuance of dividend checks by the Assignee, then the
same shall become the property of Assignee and used to supplement its fees for
services rendered for administering this Assignment.
(g) It is agreed and understood that this
transaction is a common law assignment for the benefit of Assignor's creditors.
(h) The Assignor understands that pursuant to
California Code of Civil Procedure Section 1802(c) the Assignor shall provide
the Assignee at the time of making of the assignment a list of creditors, equity
holders, and any other parties in interest, which shall include the names,
addresses, cities, states, and ZIP Codes for each person together with an amount
of the person's anticipated claim in the assignment proceedings. The schedule
(Exhibit A) is to be signed under penalty of perjury by the Assignor's
representative.
(i) The Assignor will provide a list of all accounts
receivable along with complete name, address, Zip Codes and full amount owed
along with all pertinent copies of invoices, shipping records and proof of
delivery. The schedule (Exhibit B) is to be signed under penalty of perjury by
the Assignor's representative.
[REMAINDER INTENTIONALLY OMITTED]
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ACCEPTED THIS ________ day of February, 2000
Xxxx Xxxxxx Direct, Inc. a
Delaware Corporation
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The Xxxxx Group, Assignee
By:
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Xxxx X. Player
Chief Executive Officer
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