ASSIGNMENT OF NOTE AND LIENS
This ASSIGNMENT OF NOTE AND LIENS (the "Assignment") is made on this 30th day of
June 2003 by ELIN CORPORATION; (herein referred to as "Assignor"), in favor of
XXXXX X. XXXXXX and EXIM CORPORATION (herein collectively referred to as
"Assignees") and consented and agreed to by VISEON, INC. (herein referred to as
"Borrower")
BACKGROUND
1. Assignor is the owner and holder of the debt (the "Loan") and liens (the
"Liens") evidenced by those certain loan documents more particularly described
on Schedule 1, executed by Viseon, Inc., in favor of Silicon Valley Bank
(hereinafter collectively referred to as the "Documents"). Copies of the
Documents are attached hereto as Exhibit "A" and incorporated herein by this
reference as if fully set forth verbatim.
2. Assignor acquired the Loan, Liens and Documents from Silicon Valley Bank as a
result of an assignment of note and liens executed by and between Assignor and
Silicon Valley Bank on or about the 26th day of June 2003 (a true and correct
copy of which is attached hereto as Exhibit "B" and incorporated herein by this
reference as if fully set forth verbatim.)
3. For valuable consideration paid by Assignees to Assignor, the receipt and
sufficiency of which is hereby acknowledged, Assignor agrees to absolutely
assign the Loan, the Liens and the Documents to Assignees, on the terms and
conditions more particularly set forth below.
OPERATIVE PROVISIONS
NOW THEREFORE, for and in consideration of the mutual premises herein contained
and other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged by the parties hereto, Assignor, Assignees and Borrower
hereby agree as follows:
A. Payment of Purchase Price. Concurrently with its execution of this
Assignment, Assignees shall pay to Assignor the sum of Two Hundred Three
Thousand and No/100 Dollars ($203,000) (the "Purchase Price") by wire transfer,
cashier's check, or other readily available funds.
B. Ratification. Borrower hereby consents to the assignment of the Loan, Liens
and Documents from Assignor to Assignees, and ratifies and confirms the
Documents in favor of Assignees. Borrower hereby acknowledges that the Documents
create a valid and enforceable first priority lien on all of its assets in favor
of Assignees. Borrower represents and warrants to Assignees that the Documents
are valid and enforceable against Borrower in accordance with their terms.
E. Assignment of Loan. Effective upon receipt of the Purchase Price, subject to
the terms and conditions of this Assignment, Assignor hereby grants, assigns,
conveys, transfers, and sets over to Assignees, all of Assignor's right, title
and interest in the Documents, including all of Assignor's right to receive
payments of principal and interest under the Documents and all liens and
security interests created by the Documents. The assignment effected hereby is
made without representation, recourse or warranty, except as expressly stated
herein. Assignees hereby accept the assignment set forth herein.
F. Representations and Warranties of Assignor. Assignor represents and warrants
that Assignor is the legal and equitable owner of the Documents with full power
to sell and assign the same. Except as provided in the preceding sentence, this
Assignment is being made without recourse, and without any representation or
warranty of any kind, including, but not limited to, the enforceability or
collectibility of the Loan or the Documents or compliance with any applicable
laws or regulations. By its acceptance of this Assignment, Assignees acknowledge
and agree that neither of them is relying presently and shall not be entitled to
rely on in the future any representations or warranties by Assignor, and hereby
irrevocably releases and waives any and all rights to any claims, damages, or
causes of action against Assignor.
G. Representations and Warranties of Borrower. The Documents are valid and
enforceable against Borrower in accordance with their terms.
H. Representations, Warranties and Covenants of Assignees. Each Assignee
represents, warrants and covenants to Assignor the following:
(a) Neither Assignee has any claims, rights or recourse against
Assignor arising from or in any way related to this Agreement or the
Loan Documents and, except with respect to the obligations created by,
acknowledged, or arising out of this Assignment, to the extent either
Assignee has or may have any such claims, rights or recourse against
Assignor, each Assignee fully releases Assignor from and against any
and all liability, intends this Assignment to be a full and final
accord and satisfaction of any such claims.
(b) Each Assignee has conducted its own investigation and analysis of
the Borrower and the Loan Documents and is not relying on any
representations or warranties of Assignor, except for those
representations and warranties specifically made by Assignor in this
Aaaignment.
I. Successors and Assigns. This Assignment shall inure to the benefit of the
successors, and assigns of Assignor, Assignee and Borrower, and be binding upon
the successors and assigns of Assignor, Assignee and Borrower.
J. Indemnity and Hold Harmless. BORROWER AND ASSIGNEE WILL EACH INDEMNIFY,
DEFEND AND HOLD HARMLESS ASSIGNOR AND ITS OFFICERS, EMPLOYEES AND AGENTS
AGAINST: (A) ALL OBLIGATIONS, DEMANDS, CLAIMS, AND LIABILITIES ASSERTED BY ANY
OTHER PARTY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE DOCUMENTS
AND THIS AGREEMENT; AND (B) ALL LOSSES OR EXPENSES INCURRED, OR PAID BY ASSIGNOR
FROM, FOLLOWING, OR CONSEQUENTIAL TO TRANSACTIONS AMONG ASSIGNOR ON THE ONE HAND
AND EITHER BORROWER OR ASSIGNEES (INCLUDING REASONABLE ATTORNEYS' FEES AND
EXPENSES), EXCEPT FOR LOSSES CAUSED BY ASSIGNOR'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
K. Further Assurances. Assignor and Assignees shall at their own cost and
expense execute, acknowledge, file, and record such further documents and
instruments and shall take such other actions as may be reasonably required or
appropriate to carry out the intent and purposes of this Assignment including,
without limitation, the preparation, execution, and filing of all applicable
forms pursuant to the Uniform Commercial Code in all applicable jurisdictions.
L. Attorneys' Fees. Should any party hereto reasonably retain counsel for the
purposes of enforcing or preventing the breach of any provision hereof,
including, but not limited to, the instituting of any action or proceeding to
enforce any provision hereof, for damages for reason of any alleged breach of
any provision hereof, for declaration of such party's rights or obligations
hereunder, or for any other judicial or equitable remedy, then, if said matter
is settled by judicial determination (which term includes arbitration), the
prevailing party, whether at trial or on appeal, shall be entitled to
reimbursement by the losing party to the prevailing party for all costs and
expenses incurred thereby, including, but not limited to reasonable attorneys',
accountants' and appraisers' fees.
M. Binding on Heirs and Successors. This Assignment shall be binding on and
shall inure to the benefit of the heirs, executors, administrators, successors
and assigns of the parties hereto.
N. Entire Agreement, Modification, Waiver. This Assignment contains the entire
agreement of the parties relating to the subject matter hereof. Any oral
representations, supplements or modifications concerning this Assignment shall
be of no force or effect unless contained in a subsequent written modification
signed by the party to be charged. No waiver of any of the provisions of this
Assignment shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
O. Governing Law. This Assignment is executed and intended to be performed in
the State of Delaware, and the laws of that State shall govern its
interpretation and effect.
P. Captions. The captions and section headings used herein are for convenience
and for ease of reference only and constitute no part of this agreement or
understanding between the parties hereto, and no reference shall be made thereto
for the purpose of construing or interpreting any of the provisions hereof.
Q. Survival of Warranties. The warranties and representations, and covenants of
the parties hereunder shall survive the transactions contemplated herein.
R. Counterparts. This Assignment may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
S. Parties in Interest. Nothing in this Assignment, whether express or implied,
is intended to confer any rights or remedies under or by reason of this
agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this agreement.
T. Singular, Plural, etc. Whenever the singular number is used herein and when
required by the context, the same shall include the plural, and the masculine
gender shall include the feminine and neuter genders, and the word "person"
shall include corporation, firm, partnership, joint venture, trust, estate, or
other association.
U. Invalidity. In the event that any condition, covenant, promise, or other
provision herein contained is held to be invalid or void by any court of
competent jurisdiction, the same shall be deemed severable from the remainder of
this Assignment and shall in no way affect any other covenant, promise,
condition, or other provision herein contained. If such condition, covenant,
promise, or other provision shall be deemed invalid due to its scope or breadth,
such provision shall be deemed valid to the extent of the scope or breadth
permitted by law.
V. Exhibits and Schedules. All Exhibits and Schedules referred to herein are
hereby attached hereto and incorporated herein by this reference with the same
force and effect as if fully set forth herein.
W. Agency. Nothing contained in this Assignment shall be deemed or construed by
the parties hereto or by any third person to create the relationship of
principal and agent or of partnership or of joint venture of any other
association. Each of the parties hereto expressly disclaims any intention to
create a partnership, joint venture, or principal-agent relationship.
X. Execution. This Assignment may be executed in duplicate original
counterparts. Transmittal of fully executed signature pages to the other party
by facsimile shall be deemed to constitute execution, provided original
signature pages are simultaneously transmitted to that party by overnight mail.
IN WITNESS WHEREOF, the parties have executed this Agreement as set forth below.
ASSIGNOR:
ELIN CORP
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By:
Its:
BORROWER:
VISEON, INC.
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By:
Its:
ASSIGNEES:
XXXXX X. XXXXXX
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EXIM CORPORATION
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By:
Its:
Consent and Agreement of Subordinate Secured Party
The undersigned, as a party entitled to receive a proposal under Section 9.620
and 9.621 of the Texas Business and Commerce Code and the Uniform Commercial
Code in any applicable jurisdiction, hereby (i) consents to the acceptance of
the Accepted Accounts in partial satisfaction of the Loan under such Section
9.620 as more particularly set forth herein, (ii) waives its right to receive a
proposal under such Section 9.620 and to object to such acceptance in partial
satisfaction under such Section 9.620, (iii) agrees to be bound by the terms and
conditions of this Agreement, and (iv) acknowledges the termination of its
security interest in the Accepted Accounts under Section 9.622 of the Texas
Business and Commerce Code and the Uniform Commercial Code in any applicable
jurisdiction.
PURSUIT VENTURES, INC.
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By:
Title:
SCHEDULE 1
The Loan and the Liens are evidenced by the following loan documents:
1. Loan and Security Agreement dated December 5, 2001 2. Schedule to Loan and
Security Agreement dated December 5, 2001 3. Amendment to Loan Documents dated
December 22, 2002 4. Amendment to Schedule to Loan and Security Agreement dated
July 22, 2002 5. Subordination Agreement dated December 5, 2001 6. Limited
Waiver and Amendment to Loan Documents dated March 26, 2002
7. Collateral Assignment, Patent Mortgage and Security Document dated December
5, 2001
