ASSIGNMENT
This Assignment and Xxxx of Sale is made and entered into effective as of
September 1, 2001, by RateXchange Corporation, a Delaware corporation
("RateXchange") and Xxxxxxxx/XxXxxxxx Associates, Inc., an Illinois corporation
("FMA").
By this Assignment and Xxxx of Sale, FMA, in accordance with the terms and
conditions of that certain Restructure Agreement dated October 4, 2001 (the
"Restructure Agreement") by and between RateXchange and FMA, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby sell, transfer, convey, assign and deliver unto
RateXchange, its successors and assigns, all of the "Equipment" (as defined in
Schedule A attached hereto), free and clear of any and all liens, security
interests, encumbrances, mortgages, deeds of trust, liabilities, financing
statements, pledges, charges, conditions, equitable claims, covenants, title
defects, restrictions or claims of any kind, nature or description whatsoever
except any of the foregoing created by or arising through RateXchange
(collectively, "Liens"), to have and to hold said Equipment unto RateXchange,
its successors and assigns, to and for its or their use forever. To the extent
some or all of the Equipment has already have been conveyed to RateXchange
pursuant to another document or agreement, the terms of such document shall be
in addition to the terms of this Assignment and Xxxx of Sale, and in the event
that such terms conflict, shall control over such conflicting terms of this
Assignment and Xxxx of Sale.
1. FMA hereby warrants and covenants as follows:
(a) FMA has good and marketable title to the Equipment hereby sold,
assigned, transferred, conveyed and delivered to RateXchange, free and clear of
all Liens, and RateXchange will receive hereby such good and marketable title
thereto.
(b) FMA will warrant and defend the assignment, transfer and
conveyance of the Equipment hereunder with respect to any lien against each and
every person or persons claiming against any or all of the same.
2. FMA will take all reasonable steps necessary to put RateXchange or its
successors and assigns in actual possession and operating control of the
Equipment, to carry out the intent of the Restructure Agreement and this
Assignment and Xxxx of Sale, or to more effectively sell, assign, convey,
transfer, reduce to possession and record title to any of the Equipment,
including execution and delivery of such further instruments or documents of
conveyance, assignment and transfer, or by taking such other actions as may be
reasonably requested by RateXchange.
3. Nothing contained in this Assignment and Xxxx of Sale shall be deemed to
diminish any of the obligations, agreements, covenants, representations or
warranties of RateXchange and FMA contained in the Restructure Agreement.
4. Miscellaneous
(a) Amendment. No change in or amendment to this Assignment and Xxxx
of Sale shall be valid unless set forth in writing and signed by both of the
parties hereto.
(b) Attorneys' Fees. If any party shall commence any action or
proceeding against the other that arises out of the provisions hereof or to
recover damages as the result of the alleged breach of any of the provisions
hereof, the prevailing party therein shall be entitled to recover from the
RateXchange/Xxxxxxxx-XxXxxxxx Associates
Assignment and Xxxx of Sale
Page 2 of 4
non-prevailing party all reasonable costs incurred in connection therewith,
including reasonable attorneys' fees.
(c) Counterparts. This Assignment and Xxxx of Sale may be executed in
counterparts, each of which shall be deemed an original, and all of which when
affixed together shall constitute but one and the same instrument. Signatures
exchanged by facsimile shall be deemed original signatures for all purposes.
(d) Governing Law. This Assignment and Xxxx of Sale is entered into in
the State of Illinois and shall be governed in all respects by the laws of such
state (without regard to its conflicts of laws doctrines).
(e) Severability. In the event that any provision of this Assignment
and Xxxx of Sale is found by any court or other authority of competent
jurisdiction to be illegal or unenforceable, such provision will be severed or
modified to the extent necessary to make it enforceable, and as so severed or
modified, the remainder of this Assignment and Xxxx of Sale shall remain in full
force and effect.
(f) Successors and Assigns. This Assignment and Xxxx of Sale is
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Xxxx
of Sale to be duly executed, effective as of the day and year first above
written.
XXXXXXXX/XxXXXXXX RATEXCHANGE CORPORATION,
ASSOCIATES, INC. a Delaware corporation
an Illinois corporation
By: By:
-------------------------- --------------------------
Name: Name:
----------------------- ------------------------
Title: Title:
---------------------- -----------------------
STATE OF )
-----------------------------------
) ss.
[City and] County of )
-----------------------
The foregoing instrument was acknowledged before me this ____ day of
March 2002 by ________________________as____________________of Xxxxxxxx/XxXxxxxx
Associates, Inc.
My commission expires: ______________________
Witness my hand and official seal.
_______________________________
Notary Public
RateXchange/Xxxxxxxx-XxXxxxxx Associates
Assignment and Xxxx of Sale
Page 3 of 4
STATE OF )
-----------------------------------
) ss.
[City and] County of )
-----------------------
The foregoing instrument was acknowledged before me this ____ day of
March 2002 by D. Xxxxxxxx Xxxxxxxx as Chairman and Chief Executive Officer of
RateXchange Corporation, a Delaware corporation.
My commission expires: ______________________
Witness my hand and official seal.
_______________________________
Notary Public
RateXchange/Xxxxxxxx-XxXxxxxx Associates
Assignment and Xxxx of Sale
Page 4 of 4
SCHEDULE A
(Equipment)
