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Exhibit 10.5
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT") is entered
into as of the 12th day of May, 1998, by and among ZAI*NET Software, Inc., a
Delaware corporation ("ASSIGNOR"), ZAI*NET Software, L.P., a Delaware limited
partnership ("ASSIGNEE") and Xxxxx X. Xxxxxxx, an individual and stockholder of
Assignor ("GENERAL PARTNER"). Any capitalized terms not otherwise defined herein
shall have the respective definitions as set forth in the Purchase Agreement (as
hereinafter defined).
WITNESSETH
WHEREAS, Assignor desires to contribute, transfer, convey, assign
and deliver to Assignee, and Assignee desires to receive and accept,
substantially all of Assignor's assets, including those set forth on EXHIBIT A
hereto (the "ASSIGNMENT");
WHEREAS, as consideration for the Assignment, Assignee desires to
issue, transfer and convey (i) to Assignor a ninety-nine percent (99%) limited
partnership interest in Assignee and (ii) to General Partner the one percent
(1%) general partnership interest in Assignee;
WHEREAS, as additional consideration for the Assignment, Assignee
has agreed to assume from Assignor certain Assumed Liabilities of Assignor,
consisting of those obligations and liabilities set forth on EXHIBIT B hereto
(the "ASSUMED LIABILITIES");
NOW, THEREFORE, in consideration of the premises and the
respective agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows.
1. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the following meanings:
"Assets" shall mean all of Assignor's assets and properties
(excluding (a) an amount of cash equal to $600,000 and (b) title to the
1993 Toyota Camry), including, without limitation, those set forth on
EXHIBIT A hereto.
"Purchase Agreement" shall mean that certain Purchase Agreement
dated as of the date hereof, by and among Assignor, Assignee, General
Partner and GFI Caminus LLC, a Delaware limited liability company.
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2. ASSIGNMENT. The Assignor does hereby contribute, transfer, convey,
assign, and deliver to Assignee all of the rights, title and interests of the
Assignors in and to the Assets free and clear of any and all Liens (as defined
in the Purchase Agreement) whatsoever, except for Permitted Liens (as defined in
and disclosed on Schedule 3.14 to the Purchase Agreement).
3. ACCEPTANCE AND ASSUMPTION. Assignee hereby receives, accepts and
acquires from Assignor the Assets and hereby covenants and agrees to faithfully
observe, keep, perform and fulfill all of the terms, covenants, conditions and
obligations required to be observed, kept, performed and fulfilled by the
Assignor arising from and with respect to the Assets. In addition, Assignee,
without any further responsibility or liability of or recourse to Assignor or
any of Assignor's stockholders, officers, directors, employees, agents,
successors or assigns, hereby absolutely and irrevocably assumes and covenants
and agrees with Assignor to pay, perform and be liable and responsible for, any
and all Assumed Liabilities.
4. TRANSFER OF PARTNERSHIP INTERESTS. As consideration for the
Assignment, Assignee hereby issues, conveys, assigns and transfers (i) a
ninety-nine percent (99%) limited partnership interest to Assignor, and (ii) a
one percent (1%) general partnership interest to General Partner.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties, their respective successors and permitted
assigns. None of the parties hereto may assign any of their rights or
obligations under this Agreement without the prior written consent of all
parties hereto.
6. GOVERNING LAW. All questions with respect to this Agreement and the
rights and liabilities of the parties shall be governed by the laws of the State
of New York, regardless of the choice of law provisions of that state or any
other jurisdiction.
7. FURTHER ASSURANCES. Each of Assignee, Assignor and General Partner
agrees to (a) cooperate fully with the other party, (b) execute such further
instruments, documents and agreements, and (c) give such further written
assurances as may be reasonably requested by Assignee, Assignor or General
Partner, as the case may be, to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes
of this Agreement.
8. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ZAI*NET Software, L.P., a Delaware ZAI*NET Software Inc., a Delaware
limited partnership corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
Its: General Partner Its: President
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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EXHIBIT A
The "Assets" of Assignor include all of the rights, title and interest
in the following as they exist on the date hereof:
(A) ACCOUNTS, ETC. All rights of Assignor to payment for goods sold or
leased, or to be sold or leased and for services rendered or to be rendered,
whether or not such rights to payment have been earned by performance, and all
security interests in the property of others.
(B) RIGHTS UNDER CONTRACTS. All rights of Assignor under contracts,
agreements and undertakings with third parties, including, without limitation,
the material contracts identified on Schedule 3.7 to the Purchase Agreement, the
Personal Property Leases identified on Schedule 3.17 to the Purchase Agreement
and the Real Property Leases identified on Schedule 3.18 to the Purchase
Agreement.
(C) EQUIPMENT. All machinery, electrical and electronic components,
equipment, furniture, office machinery, appliances, implements and other
tangible personal property of every kind and description used or useful in its
business, and all goods of like kind or type hereafter acquired by Assignor in
substitution or replacement thereof, and all additions and accessions thereto,
including without limitation, the tangible assets identified on Schedule 3.13 to
the Purchase Agreement.
(D) GENERAL INTANGIBLES. All personal property of Assignor (including
things in action) and general intangibles of Assignor. General intangibles
includes, without limitation, all computer software, inventions, processes,
formulae, licenses, patents, patent rights, copyrights, copyright rights,
trademarks, trademark rights, service marks, service xxxx rights, trade names,
trade name rights, and other like business property rights, including to the
extent such assignment is permitted by law all permits, licenses and entitlement
necessary for operation of equipment, and all applications to acquire any such
rights, on file or for which application may at any time have been made in the
past by Assignor, including without limitation, the Intellectual Property
identified on Schedule 3.8 to the Purchase Agreement.
(E) INSTRUMENTS. All drafts, checks, certificates of deposit, notes,
bills of exchange and other writings which evidence a right to the payment of
money.
(F) INVENTORY. All goods owned or held by or for the account of Assignor
for sale or lease, or for furnishing under a contract of service, or as raw
materials, work in process or materials incorporated in or consumed in the
production of any of the foregoing, in each case wherever the same shall be
located.
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(G) FIXTURES. All goods owned by Assignor so related to real property
owned by Assignor that Assignor shall have acquired an interest in such goods
under real estate law.
(H) BALANCE SHEET ITEMS. All other assets and properties reflected in
the balance sheet prepared in connection with the Closing Audit (as defined in
the Purchase Agreement).
(I) PROCEEDS. All proceeds, products, additions and excisions of any and
all of the foregoing Assets and, to the extent not otherwise included, all
payments under insurance, or any indemnity, warranty or guaranty, payable by
reason of loss of damage to or otherwise with respect to any of the foregoing
Assets.
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EXHIBIT B
"ASSUMED LIABILITIES" shall mean the following:
(A) All trade accounts payable, accrued expenses and accrued liabilities
for goods delivered or to be delivered to Assignor and for services performed or
to be performed by Assignor in connection with its business, in each case to the
extent (excluding any payables, expenses, liabilities or obligations in
connection with the 1993 Toyota Camry) (i) reflected as liabilities on the
balance sheet prepared in connection with the Closing Audit, (ii) of a de
minimis amount and incurred in the ordinary course of business and consistent
with past practices and (iii) incurred in connection with and for the benefit of
the business of the Assignee from and after the Closing (as defined in the
Purchase Agreement).
(B) All obligations of Assignor under contracts, agreements and
undertakings with third parties pursuant to contracts identified on Schedule 3.6
to the Purchase Agreement under the Personal Property Leases identified on
Schedule 3.17 to the Purchase Agreement under the Real Property Leases
identified on Schedule 3.18 to the Purchase Agreement, and all other nonmonetary
obligations arising from items reasonably identifiable on the schedules to the
Purchase Agreement and incurred in the ordinary course of business and
consistent with past practices, excluding, in each case, any liability or
obligation for a breach or default thereunder or other liability or obligation
accrued with respect to the period prior to the date hereof, unless such
liability or obligation is covered by the preceding paragraph (A).
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