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EXHIBIT 10.5
AMENDMENT OF ASSET PURCHASE AGREEMENT
This Amendment of Asset Purchase Agreement (this "Amendment") entered
into as of September 8, 2000 by and among Total Logistic Control, LLC (the
"Buyer"), a limited liability company organized under the laws of the State of
Georgia , The Pro Source Group, Inc. ("the Seller"), a corporation organized
under the laws of the State of Delaware, and FMG (Atlanta), Inc. (the
"Shareholder"), a corporation organized under the laws of the State of Delaware.
The Buyer, the Seller and the Shareholder are referred to collectively herein as
the "Parties".
Whereas the Parties have entered into an Asset Purchase Agreement dated
as of September 5, 2000 (the "Asset Purchase Agreement");
Whereas the Seller has pursuant to and in accordance with the Asset
Purchase Agreement issued to the Buyer a Xxxx of Sale dated as of September 5,
2000 (the "Xxxx of Sale"); and
Whereas the Parties mutually desire to amend the Asset Purchase
Agreement and the Xxxx of Sale, all as more fully set forth hereinbelow, in
order to correct various errors contained in each of such documents.
Now thereforee, in consideration of the premises and the mutual
promises herein made, the Parties hereby agree as follows:
1. The Parties agree that the first clause of the Asset Purchase
Agreement is and shall be deemed to be amended by adding thereto the word "of"
immediately after the phrase "will purchase certain assets" set forth in said
first clause.
2. The Parties agree that Schedule A attached to and made a part of
the Asset Purchase Agreement is and shall be deemed to be amended (a) by
deleting therefrom the word "and" at the end of item b set forth in said
Schedule A, (b) by deleting therefrom the period at the end of item c set forth
in said Schedule A and by substituting therefore the term "; and" and (c) by
adding thereto the following item d immediately after item c set forth in said
Schedule A:
"d. a security deposit in the amount of $6,542.90 delivered by the
Seller to Lakewoods Realty & Mortgage Corporation and held by
Lakewoods Realty & Mortgage Corporation pursuant to Paragraph 23
of the Office Lease, it being specifically understood and agreed
that, notwithstanding anything to the contrary set forth herein,
said security deposit is being sold, transferred, conveyed and
delivered by the Seller to the Buyer subject to the Office Lease
and to the rights of Lakewoods Realty & Mortgage Corporation to
hold and apply said security deposit pursuant to the Office
Lease."
3. The Parties agree that ss.2(c) of the Asset Purchase Agreement is
and shall be deemed to be amended by deleting therefrom the amount "Fifty-Eight
Thousand Dollars ($58,000)" and by substituting therefore the amount "fifty-six
thousand eight hundred dollars ($56,800)".
4. The Parties agree that ss.3(c) of the Asset Purchase Agreement is
and shall be deemed to be amended by adding thereto the following clause
immediately before the period at the end of said ss.3(c):
", provided however that, notwithstanding anything to the contrary set
forth herein, the right, title and interest of the Seller in and to the
security deposit mentioned in item d of Schedule A attached hereto and
made a part hereof is subject to the Office Lease and to the rights of
Lakewoods Realty & Mortgage Corporation to hold and apply said security
deposit pursuant to the Office Lease".
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5. The Parties agree that ss.3(c) of the Asset Purchase Agreement
is and shall be deemed to be amended by adding the following sentence at the end
of said ss.3(e):
"Lakewoods Realty & Mortgage Corporation has not prior to the
Closing applied, and has no right to apply based upon the use and/or
occupancy by the Seller prior to September 5, 2000 of the office
space which is the subject of the Office Lease, all or any portion
of the security deposit mentioned in item d of Schedule A attached
hereto and made a part hereof."
6. The Seller and the Buyer agree that Schedule A attached to and
made a part of the Xxxx of Sale is and shall be deemed to be amended (a) by
deleting therefrom the word "and" at the end of item b set forth in said
Schedule A, (b) by deleting therefrom the period at the end of item c set forth
in said Schedule A and by substituting therefore the term "; and" and (c) by
adding thereto the following item d immediately after item c set forth therein:
"a security deposit in the amount of $6,542.90 delivered by the
Seller to Lakewoods Realty & Mortgage Corporation and held by
Lakewoods Realty & Mortgage Corporation pursuant to Paragraph 23 of
the Office Lease, it being specifically understood and agreed that,
notwithstanding anything to the contrary set forth herein, said
security deposit is being sold, transferred, conveyed and delivered
by the Seller to the Buyer subject to the Office Lease and to the
rights of Lakewoods Realty & Mortgage Corporation to hold and apply
said security deposit pursuant to the Office Lease."
7. The Seller and the Buyer agree that the Xxxx of Sale is and
shall be deemed to be amended by deleting therefrom the amount "fifty-eight
thousand dollars ($58,000)" and by substituting therefore the amount "fifty-six
thousand eight hundred dollars ($56,800)".
8. The Parties agree that the Asset Purchase Agreement is and
shall be deemed to be amended by adding thereto and making a part thereof as
Exhibit A the document annexed hereto as Exhibit A.
9. The Seller and the Buyer agree that ss.5(d) of the Asset
Purchase Agreement is and shall be deemed to be amended by adding thereto at the
end thereof the following sentence:
"The Seller and the Buyer each agree that immediately after the
Closing the Seller and the Buyer shall execute and deliver to
Lakewoods Realty & Mortgage Corporation, and the Shareholder agrees
that immediately after the Closing the Shareholder shall cause
Facility Holdings Corp. to execute and deliver to Lakewoods Realty &
Mortgage Corporation, an Assignment of Leasehold Interest in form
and substance substantially identical to the Assignment of Leasehold
Interest attached hereto and made a part hereof as Exhibit A, it
being specifically understood and agreed (i) that the Seller and the
Shareholder shall cause Lakewoods Realty & Mortgage Corporation,
promptly upon receipt of the aforesaid Assignment of Leasehold
Interest, as executed by the Seller, the Buyer and Facility Holdings
Corp., to execute and return to the Buyer said Assignment of
Leasehold Interest and (ii) that, notwithstanding the aforesaid
Assignment of Leasehold Interest, the Buyer shall promptly after the
Closing use reasonable efforts to cause any liabilities and/or
obligations of the Seller, the Shareholder and/or the affiliates of
the Shareholder, including without limitation Facility Holdings
Corp., directly to Lakewoods Realty & Mortgage Corporation relating
to the Office Lease to be terminated insofar as and to the extent
that such liabilities and/or obligations apply to the Seller, the
Shareholder and/or any affiliates of the Shareholder, including
without limitation Facility Holdings Corp.".
10. The Parties agree that, except as specifically amended as set
forth herein, the Asset Purchase Agreement and the Xxxx of Sale are and shall
remain in full force and effect in accordance with the terms and provisions set
forth therein.
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In witness whereof, the Parties hereto have executed this Amendment as of the
date first above written.
The Pro Source Group, Inc. Total Logistic Control, LLC
By: By:
------------------------------------- --------------------------
Title: President Title:
-----------------------
FMG (Atlanta), Inc.
By:
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Title: Secretary and General Counsel
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EXHIBIT A
ASSIGNMENT OF LEASEHOLD INTEREST
KNOW ALL MEN BY THESE PRESENTS THAT The ProSource Group, Inc. (hereinafter
referred to as the "Assignor"), a corporation organized under the laws of the
State of Delaware with a principal place of business at 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx, does hereby, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the Assignor,
sell, assign, transfer and convey to Total Logistic Control, LLC (hereinafter
referred to as the "Assignee"), a limited liability company organized under the
laws of the State of Delaware with principal place of business at 0000 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx, all of the right, title and interest of the Assignor
as Tenant in and to an Office Lease dated December 15, 1999 (hereinafter
referred to as the "Office Lease") entered into between the Assignor and
Lakewoods Realty & Mortgage Corporation (hereinafter referred to as the
"Landlord"), as agent for American National Bank & Trust company of Chicago
Trust No. 56514 dated December 7, 1982, including without limitation any and all
of the right, title and interest of the Assignor in and to the security deposit
in the amount of $6,542.90 mentioned in Paragraph 23 of the Office Lease.
Notwithstanding this Assignment of Leasehold interest, the Assignor shall be and
remain primarily liable to the Landlord for any and all liabilities and/or
obligations of Tenant under the Office Lease.
By acceptance hereinbelow of the Assignment, the Assignee shall be and become
liable to the Landlord for any and all liabilities and/or obligations of Tenant
under the Office Lease and attributable to the use and/or occupancy on and after
September 5, 2000 of the office space which is the subject of the Office Lease.
This Assignment of Leasehold Interest shall be binding upon and inure to the
benefit of the Assignor, the Assignee and the respective successors and assigns
of the Assignor and the Assignee and shall inure to the benefit of the Landlord
and the successors and assigns of the Landlord.
IN WITNESS WHEREOF, the Assignor has executed this Assignment of Leasehold
Interest as of the fifth day of September, 200.
Signed, sealed and delivered The ProSource Group, Inc.
In the presence of
----------------------------- By
-----------------------------
Its President
Hereunto duly authorized
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ACCEPTANCE AND ASSUMPTION
The Assignee hereby accepts the foregoing Assignment of Leasehold Interest and
assumes any and all liabilities and/or obligations of Tenant under the Office
Lease and attributable to the use and/or occupancy on and after September 5,
2000 of the office space which is the subject of the Office Lease it being
specifically understood and agreed that the Assignee shall be and become
together with the Assignor liable to the Landlord for any and all liabilities
and/or obligations of Tenant under the Office Lease and attributable to the use
and/or occupancy on and after September 5, 2000 of the office space which is the
subject of the Office Lease.
Total Logistic Control, Inc.
By
------------------------------------
Its
Hereunto duly authorized
CONSENT AND AGREEMENT
Facility Holdings Corp. (hereinafter referred to as the "Guarantor") hereby
consents to the foregoing Assignment of Leasehold Interest and acknowledges and
agrees that, notwithstanding the foregoing Assignment of Leasehold Interest, the
foregoing Assignment of Leasehold Interest shall in no way negate, reduce or
otherwise impair any of the liabilities and/or obligations of the Guarantor
under a Guaranty of Lease dated as of January 15, 2000 issued by the Guarantor
to the Landlord and the Guarantor shall be and remain liable to the Landlord for
any and all liabilities and/or obligations of the Guarantor under the aforesaid
Guaranty of Lease.
Facility Holdings Corp.
By
-------------------------------------
Its Secretary and General Counsel
Hereunto duly authorized
CONSENT
The Landlord, as agent for American National Bank & Trust Company of Chicago
Trust No. 56514 dated December 7, 1982, hereby consents to the foregoing
Assignment of Leasehold Interest.
Lakewoods Realty & Mortgage Corporation
By
-------------------------------------
Its
Hereunto duly authorized
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