EXHIBIT 10.5
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of June 17, 1999, between
VOGO NETWORKS, LLC, a Delaware limited liability company ("Buyer"), and
CONNECTSOFT COMMUNICATIONS CORPORATION, a Delaware corporation, and CONNECTSOFT
HOLDING CORP., a Washington corporation (collectively "Seller").
Buyer, Seller, American United Global, Inc., a Delaware corporation,
and Executive TeleCard Ltd., a Delaware corporation are parties to an Asset
Purchase Agreement dated as of July 10, 1998, as amended, including by Amendment
No. 3 thereto dated June __, 1999 (the "Purchase Agreement"). It is a condition
precedent to Seller's obligations under the Purchase Agreement that Buyer
execute and deliver this Assignment and Assumption Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer hereby agrees as follows:
1. Capitalized terms used herein but not defined herein shall have the
meanings assigned such terms in the Purchase Agreement.
2. Seller hereby assigns to Buyer each of the contracts, agreements and
instruments set forth on Schedule B-1 hereto (the "Seller Contracts") and the
Assumed Liabilities set forth on Schedule B-2 hereto ("Assumed Liabilities").
3. Buyer hereby assumes all liabilities arising (i) under the Seller
Contracts and (ii) under the Assumed Liabilities, in each case from and after
the Closing Date, and hereby assumes, and agrees to be bound by, pay and fully
and faithfully discharge and perform, all obligations of Seller of continued
performance under the Seller Contracts and Assumed Liabilities from and after
the date hereof in accordance with the terms of the Purchase Agreement.
4. Notwithstanding anything contained in Sections 2 or 3 hereof to the
contrary, Buyer does not assume, and shall not be responsible for any
liabilities or obligations of Seller or any affiliate of Seller, whether fixed
or contingent, known or unknown, threatened, pending or unasserted, other than
the Seller Contracts and Assumed Liabilities. Seller does retain and shall
remain responsible for in accordance with the terms and conditions of the
Purchase Agreement, all of Seller's debts, liabilities and obligations of any
nature whatsoever, other than the Assumed Liabilities and Seller Contracts,
whether accrued, absolute or contingent, whether known or unknown, whether due
or to become due and whether related to the Assets or otherwise, and regardless
of when asserted, including, without limitation, the following liabilities or
obligations of Seller (none of which will constitute Assumed Liabilities):
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(a) all liabilities and obligations of any kind existing as of
the Closing of a nature characterized as an intercompany liability, and any
similar item otherwise owed between Seller and American United Global, Inc. or
any of its affiliates;
(b) any liabilities with respect to any bonus, deferred
compensation, pension, profit sharing, retirement or other such benefit plan;
(c) all liabilities and obligations of Seller for Taxes; and
(d) any of the obligations and claims required to be set forth
in Schedule 5.13 of the Purchase Agreement.
For the avoidance of doubt, the parties acknowledge and agree that the
liabilities listed on Schedule B-1 and B-2 shall not include any obligations of
AUGI, CCC or Connectsoft to UPS or any of its affiliates ("UPS Liabilities"),
and that such obligations shall not be Assumed Liabilities for purposes of the
Purchase Agreement or this Assignment and Assumption Agreement..
5. From time to time after the date hereof, each of Buyer and Seller
will execute and deliver to the other such instruments as may be reasonably
requested by Buyer or its counsel or Seller or its counsel, as the case may be,
in order to carry out the purpose and intent of this Assignment and Assumption
Agreement and the Purchase Agreement.
6. Notwithstanding any other provision of this Assignment and
Assumption Agreement to the contrary, nothing contained in this Assignment and
Assumption Agreement shall in any way supersede, modify, replace, amend, change,
rescind, waive, exceed, expand, enlarge, or in any way affect the provisions,
including the warranties, covenants, agreements, conditions, representations or,
in general any of the rights and remedies, and any of the obligations and
indemnifications of Buyer or Seller set forth in the Purchase Agreement nor
shall this Assignment and Assumption Agreement expand or enlarge any remedies
under the Purchase Agreement including without limitation any limits on
indemnification specified therein. This Assignment and Assumption Agreement is
intended only to effect the transfer of certain liabilities assumed pursuant to
the Purchase Agreement and shall be governed entirely in accordance with the
terms and conditions of the Purchase Agreement.
7. This Assignment and Assumption Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Buyer and Seller have caused this Assignment and
Assumption Agreement to be executed and delivered on the date and year first
written above.
CONNECTSOFT COMMUNICATIONS
CORPORATION
By:__________________________________
Name:
Its:
CONNECTSOFT HOLDING CORP.
By:__________________________________
Name:
Its:
VOGO NETWORKS, LLC
By:__________________________________
Name:
Its:
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