exhibit105hgssouthfieldl






23011330-v1    TERMINATION AGREEMENT   This Termination Agreement, dated as of October 12, 2021 (the "Termination  Agreement"), between GrowGeneration USA, Inc., a Delaware corporation and the successor by  merger of GrowGeneration Michigan Corp., a Delaware corporation ("Buyer"), and HGS  Southfield, LLC, a Michigan limited liability company ("Seller"), and together with Buyer, the  "Parties", and each, a "Party").   WHEREAS, the Parties have entered into an Asset Purchase Agreement, dated as of  July 27, 2021 (the "Agreement"); and   WHEREAS, the Parties hereto desire to terminate the Agreement on the terms and  subject to the conditions set forth herein; and   WHEREAS, pursuant to Section 6.1 of the Agreement, the Parties may terminate the  Agreement by mutual written consent.   NOW, THEREFORE, in consideration of the premises set forth above and other good  and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the  Parties agree as follows:  1. Definitions. Capitalized terms used and not defined in this Termination Agreement  have the respective meanings assigned to them in the Agreement.  2. Termination of the Agreement. Subject to the terms and conditions of this  Termination Agreement, the Agreement is hereby terminated as of the date first written above  (the "Termination Date"). From and after the Termination Date, the Agreement will be of no  further force or effect, and the rights and obligations of each of the Parties thereunder shall  terminate, except for (a) any rights and obligations of the Parties that are expressly designated  under Section 6.2 to survive the termination of the Agreement and (b) any other rights and  obligations of the Parties that come into being or effect upon the termination of the Agreement,  in each case under clause (a) and clause (b), subject to the terms and conditions of this  Termination Agreement.  3. Mutual Release.  (a) In consideration of the covenants, agreements, and undertakings of the Parties  under this Termination Agreement, each Party, on behalf of itself and its respective present and  former parents, subsidiaries, affiliates, officers, directors, shareholders, members, successors,  and assigns (collectively, "Releasors") hereby releases, waives, and forever discharges the other  Party and its respective present and former, direct and indirect, parents, subsidiaries, affiliates,  employees, officers, directors, shareholders, members, agents, representatives, permitted  successors, and permitted assigns (collectively, "Releasees") of and from any and all actions,  causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts,  reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts,  controversies, agreements, promises, variances, trespasses, damages, judgments, extents,  executions, claims, and demands, of every kind and nature whatsoever, whether now known or  





 






    2    unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law,  admiralty, or equity (collectively, "Claims"), which any of such Releasors ever had, now have,  or hereafter can, shall, or may have against any of such Releasees for, upon, or by reason of any  matter, cause, or thing whatsoever from the beginning of time through the date of this  Termination Agreement arising out of or relating to the Agreement, except for any Claims  relating to rights and obligations preserved by, created by, or otherwise arising out of this  Termination Agreement including any surviving indemnification obligations under the  Agreement.  (b) Each Party, on behalf of itself and each of its respective Releasors, understands  that it may later discover Claims or facts that may be different than, or in addition to, those that it  or any other Releasor now knows or believes to exist regarding the subject matter of the release  contained in this Section 3, and which, if known at the time of signing this Termination  Agreement, may have materially affected this Termination Agreement and such Party's decision  to enter into it and grant the release contained in this Section 3. Nevertheless, the Releasors  intend to fully, finally and forever settle and release all Claims that now exist, may exist or  previously existed, as set forth in the release contained in this Section 3, whether known or  unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is  and will remain in effect as a complete release, notwithstanding the discovery or existence of  such additional or different facts. The Releasors hereby waive any right or Claim that might arise  as a result of such different or additional Claims or facts.   4. Representations and Warranties. Each Party hereby represents and warrants to the  other Party that:  (a) It has the full right, corporate power, and authority to enter into this  Termination Agreement and to perform its obligations hereunder.  (b) The execution of this Termination Agreement by the individual whose  signature is set forth at the end of this Termination Agreement on behalf of such Party, and the  delivery of this Termination Agreement by such Party, have been duly authorized by all  necessary corporate action on the part of such Party.  (c) This Termination Agreement has been executed and delivered by such Party  and (assuming due authorization, execution, and delivery by the other Party hereto) constitutes  the legal, valid, and binding obligation of such Party, enforceable against such Party in  accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency,  reorganization, moratorium, or similar laws and equitable principles related to or affecting  creditors' rights generally or the effect of general principles of equity.  (d) Each Party affirms that it has not filed  with any governmental agency or court  any type of action or report against the other Party.  (e) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES  SET FORTH IN THE AGREEMENT AND IN THIS SECTION 4 OF THIS TERMINATION  AGREEMENT, (A) NEITHER PARTY HERETO NOR ANY PERSON ON SUCH PARTY'S  BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR  





 






    3    WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, WHETHER ARISING BY  LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR  OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY  HERETO ACKNOWLEDGES THAT, IN ENTERING INTO THIS TERMINATION  AGREEMENT, IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY  MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH OTHER PARTY'S  BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 4.  5. Confidentiality. Subject to the terms and conditions of Section 6(a), each Party  acknowledges the confidential nature of the terms and conditions of this Termination Agreement,  the Agreement, and any and all non-public, proprietary, and/or confidential information  concerning the Parties, their affiliates and businesses that has been furnished in connection with  the transaction contemplated by the Agreement, regardless of the form in which such information  is communicated or maintained  (collectively, the "Confidential Information").  Each Party  agrees that it shall not (a) disclose any of such Confidential Information to any person or entity,  except to such Party's affiliates, employees, advisors and other representatives who need to know  the Confidential Information to assist such Party, or act on its behalf, to exercise its rights or  perform its obligations under this Termination Agreement, or (b) use the Confidential  Information, or permit it to be accessed or used, for any purpose other than to exercise its rights  or perform its obligations under this Termination Agreement. Each Party agrees to return or  destroy any and all Confidential Information of the other Party in its possession, except to the  extent required by Law.  Each Party shall be responsible for any breach of this Section 5 caused  by any of its affiliates, employees, advisors, or other representatives. Notwithstanding the  foregoing, if any Confidential Information is permissibly disclosed pursuant to Section 6(a), such  information will no longer be deemed "Confidential Information" for the purposes of this Section  5.  6. Publicity and Announcements.  (a) Neither Party shall (orally or in writing) publicly disclose or issue any press  release or make any other public statement, or otherwise communicate with the media,  concerning the existence of this Termination Agreement or the subject matter hereof, without the  prior written approval of the other Party, except to the extent that such Party is required to make  any public disclosure or filing with respect to the subject matter of this Termination Agreement  (i) by applicable law, or (ii) pursuant to any rules or regulations of any securities exchange of  which the securities of such party or any of its affiliates are listed or traded or (iii) in connection  with enforcing its rights under this Termination Agreement.  (b) During the period beginning on the full execution of this Termination  Agreement and ending on the fifth anniversary of the Termination Date, neither Party shall  make, publish, or communicate to any person or entity or in any public forum any comments or  statements (written or oral) that intentionally seek to denigrate or disparage, or are detrimental to,  the reputation or stature of the other Party or its businesses, or any of its employees, directors  and officers, and existing and prospective customers, suppliers, investors and other associated  third parties.  





 






    4    (c) Buyer represents that it has not utilized or initiated any geofencing since its  execution of the Agreement to market/advertise its business within 15 miles of Seller's existing  locations (“Geofencing”).    7. Miscellaneous.  (a) All notices, requests, consents, claims, demands, waivers, summons, and other  legal process, and other similar types of communications hereunder (each, a "Notice") must be in  writing and addressed to the relevant Party at the address set forth on the first page of this  Termination Agreement (or to such other address that may be designated by the receiving Party  from time to time in accordance with this Section 7(a)). All Notices must be delivered by  personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or  registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective  only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied  with the requirements of this Section 7a).  (b) This Termination Agreement and all related documents and all matters arising  out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed  by, and construed in accordance with, the laws of the State of Michigan, without giving effect to  the conflict of laws provisions thereof to the extent such principles or rules would require or  permit the application of the laws of any jurisdiction other than those of the State of Michigan. In  the event of a dispute arising in any manner to this Termination Agreement, any and all actions,  whether arising in law or equity, must be brought in a Court in Oakland County, Michigan, or a  federal court in the Eastern District of Michigan, and the Parties irrevocably consent to the  jurisdiction therein.  (c) This Termination Agreement and each of the terms and provisions hereof may  only be amended, modified, waived, or supplemented by an agreement in writing signed by each  Party.  (d) Neither Party may assign, transfer, or delegate any or all of its rights or  obligations under this Termination Agreement without the prior written consent of the other  party, which consent shall not be unreasonably withheld or delayed; provided, however, that  either Party may assign this Termination Agreement to an affiliate, a successor-in-interest by  consolidation, merger, or operation of law or to a purchaser of all or substantially all of the  Party's assets. No assignment will relieve the assigning party of any of its obligations hereunder.  Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be  null and void. This Termination Agreement will inure to the benefit of and be binding upon each  of the Parties and each of their respective permitted successors and permitted assigns.  (e) The Parties drafted this Termination Agreement without regard to any  presumption or rule requiring construction or interpretation against the party drafting an  instrument or causing any instrument to be drafted.  (f) If any term or provision of this Termination Agreement is invalid, illegal, or  unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect  





 






    5    any other term or provision of this Termination Agreement or invalidate or render unenforceable  such term or provision in any other jurisdiction.   (g) Each Party acknowledges and agrees that (i) a breach or threatened breach by  such party of any of its obligations under this Termination Agreement would give rise to  irreparable harm to the other party for which monetary damages would not be an adequate  remedy and (ii) in the event of a breach or a threatened breach by such Party of any such  obligations, the other Party will, in addition to any and all other rights and remedies that may be  available to such party at law, in equity or otherwise in respect of such breach, be entitled to  equitable relief, including a temporary restraining order, an injunction, specific performance and  any other relief that may be available from a court of competent jurisdiction, without any  requirement to post a bond or other security, and without any requirement to prove actual  damages or that monetary damages will not afford an adequate remedy. Each Party agrees that it  shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a  court of competent jurisdiction of an order granting equitable relief, in either case, consistent  with the terms of this Section 7(g).  In any action to enforce any terms of this Termination  Agreement, the successful party shall be entitled to and shall receive or be ordered payment of  all costs and expenses, including attorney’s fees, incurred in enforcing the terms of this  Agreement, in addition to any damages that such party is found to be entitled to.    (h) This Termination Agreement constitutes the sole and entire agreement between  the Parties with respect to the subject matter contained herein and supersedes all prior and  contemporaneous understandings, agreements, representations, and warranties, both written and  oral, with respect to such subject matter.  (i) Each Party shall pay its own costs and expenses in connection with the  drafting, negotiation, and execution of this Termination Agreement (including the fees and  expenses of its advisors, accounts, and legal counsel).  (j) As material consideration for the covenants, agreements, and undertakings of  the Parties under this Termination Agreement, Seller acknowledges that Buyer shall, within three  (3) business days following the full execution of this Termination Agreement, pay an affiliate of  Seller (via wire transfer) reimbursement of its transaction fees on a non-accountable basis an  amount equal to $300,000 dollars.   (k) This Termination Agreement may be executed in counterparts, each of which  is deemed an original, but all of which constitutes one and the same agreement. Delivery of an  executed counterpart of this Termination Agreement electronically or by facsimile shall be  effective as delivery of an original executed counterpart of this Termination Agreement.      [Remainder of Page Intentionally Left Blank – Signature Page Follows]