EXHIBIT 99.20
INSTRUMENT OF ASSIGNMENT, AGREEMENT
AND CONSENT
This Instrument of Assignment, Agreement and Consent (this "Agreement") is
executed and delivered as of the 21st day of January, 2005, among VERSO
TECHNOLOGIES, INC., a Minnesota corporation ("Guarantor"), NACT ACQUISITION,
INC., a Delaware corporation ("NACT Acquisition"), XXXXXXX HOLDINGS, L.L.C., a
Utah limited liability company, as successor in interest to Xxxxxxx-Riverwoods
Company, L.L.C., a Utah limited liability company ("Landlord"), NACT
TELECOMMUNICATIONS, INC., a Delaware corporation ("NACT") and MIDLAND NATIONAL
LIFE INSURANCE COMPANY, an Iowa corporation ("Lender").
WITNESSETH:
WHEREAS, pursuant to that certain Lease Agreement dated December 30, 1999
(the "Lease"), Landlord and NACT entered into an agreement to lease to NACT an
office building located at 000 Xxxx 0000 Xxxxx Xxxxxx, Xxxxx, Xxxx (the "Demised
Premises");
WHEREAS, pursuant to that certain Instrument of Assumption and
Substitution of Guarantor of Lease dated as of July 27, 2001, among World
Access, Inc., Guarantor, Landlord and NACT (the "Instrument"), Guarantor (i)
guaranteed NACT's obligations under the Lease and (ii) assumed the obligations
of World Access, Inc. under that certain Guaranty of Lease dated December
30,1999 ((i) and (ii) together, the "Guaranty"); and
WHEREAS, NACT Acquisition, NACT and Guarantor are considering entering
into a proposed transaction pursuant to which, among other things, NACT will
assign all of its right, title and interest in and to substantially all of its
assets to NACT Acquisition as set forth in that certain Asset Purchase Agreement
of even date among NACT, NACT Limited, Guarantor and NACT Acquisition (the
"Asset Purchase Agreement");
NOW, THEREFORE, for and in consideration of these premises and the terms
and covenants contained herein, NACT, NACT Acquisition, Guarantor and Landlord
hereby agree as follows:
1. Effective as of and subject to the consummation of the transactions
contemplated by the Asset Purchase Agreement (the "Closing"), NACT assigns,
transfers and sets over all of its right, title and interest in and under the
Lease to NACT Acquisition.
2. Effective as of and subject to the Closing, NACT Acquisition assumes
all duties, obligations and liabilities of NACT under the Lease and agrees to be
bound and to perform all of the obligations, duties, covenants, stipulations and
agreements of NACT therein contained.
3. Effective as of and subject to the Closing, NACT Acquisition agrees
to pay to Landlord all payments required by the Lease promptly when due.
Effective as of and subject to the Closing, NACT Acquisition agrees to indemnify
NACT and Guarantor against all actions, claims and demands whatsoever in respect
to the obligations, liabilities, duties covenants, stipulations, agreements and
conditions assumed by NACT Acquisition hereby from the date of the Closing
through the expiration of the Lease.
4. Neither Landlord nor its agents have made any representations with
respect to the Demised Premises, except as expressly set forth in the provisions
of the Lease.
5. Landlord hereby consents to the assignment and transfer to NACT
Acquisition of all of NACT's right, title and interest in and under the Lease,
and NACT Acquisition's assumption of all obligations, duties, covenants,
stipulations and agreements of NACT under the Lease as of the date of the
Closing as contemplated hereby. Notwithstanding the foregoing, nothing in this
Agreement (i) shall relieve NACT of its obligations under the Lease for the
remainder of the term of the Lease, and Landlord specifically reserves its
rights and remedies with respect to NACT under the Lease or (ii) shall relieve
Guarantor of its obligations under the Guaranty for the remainder of the term of
the Guaranty, and Landlord specifically reserves its rights and remedies with
respect to Guarantor under the Guaranty. Further, nothing in this Agreement
shall be deemed to authorize any assignment or other transfer in whole or in
part of the interest of NACT Acquisition under the Lease in violation of any
provisions thereof.
6. As an inducement to Landlord to execute this Agreement, NACT
represents and warrants to Landlord that, (i) to the best of its knowledge, as
of the date hereof, each of NACT and Landlord are in compliance with its
respective obligations under the Lease; and (ii) the material elements of the
transaction contemplated by the Asset Purchase Agreement are accurately
described on Exhibit A attached hereto and incorporated herein by this
reference.
7. As a further inducement to Landlord to execute this Agreement, NACT
Acquisition represents and warrants to Landlord that: (i) the material elements
of the transaction contemplated by the Asset Purchase Agreement are accurately
described on Exhibit A attached hereto and incorporated herein by this
reference; (ii) NACT Acquisition is a newly formed company that is controlled by
Kinderhook Capital SBIC Fund I, L.P. ("Kinderhook"); and (iii) as of the date
hereof, NACT Acquisition will receive an indirect equity investment from
Kinderhook of no less than $6 million cash; thus, as of the completion of the
acquisition contemplated by the Asset Purchase Agreement, NACT Acquisition will
have no less than $6 million of equity.
8. As a further inducement to Landlord to execute this Agreement,
Guarantor represents and warrants to Landlord that, (i) Guarantor acknowledges
the assignment and transfer by NACT to NACT Acquisition as contemplated by this
Agreement; (ii) NACT Acquisition is not an affiliate of Guarantor; (iii)
Guarantor acknowledges and agrees that pursuant to the transactions contemplated
by this Agreement and the Asset Purchase Agreement, the Guaranty shall continue
to be enforceable and effective as against Guarantor with respect to the assumed
duties, obligations and liabilities undertaken by NACT Acquisition pursuant to
this Agreement; (iv) pursuant to the transactions contemplated by this Agreement
and the Asset Purchase Agreement, Guarantor has received consideration
supporting and sufficient to justify the continued effective nature of the
Guaranty, notwithstanding the transactions contemplated by the Asset Purchase
Agreement.
9. This Agreement will be binding upon NACT, NACT Acquisition,
Guarantor and Landlord, and their respective successors and assigns.
10. Lender has executed this Agreement for the purposes of acknowledging
its consent hereto; provided, however, that the other parties hereto recognize
and acknowledge that
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Lender's consent is made expressly subject to the terms of Sections 5, 6, 7 and
8 hereof, and Lender has relied on the provisions thereof in executing this
Agreement.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of Utah.
12. This Agreement may be executed simultaneously in counterparts, each
of which will be deemed an original, but all of which together will constitute
one and the same instrument. Executed counterparts may be delivered via
facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date and year first above
written.
VERSO TECHNOLOGIES, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
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XXXXXXX HOLDINGS, L.L.C.,
a Utah limited liability company
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx, Attorney in Fact
--------------------------------
Title: Xxxxx Xxxxxxx, Its Manager
--------------------------------
NACT TELECOMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
NACT ACQUISITION, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxx X. Michelik
--------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
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MIDLAND NATIONAL LIFE INSURANCE
COMPANY, an Iowa corporation
By: /s/ E Xxxx Xxxxxxx
--------------------------------------
Name: E Xxxx Xxxxxxx
Its: President, Midland Advisors Company
As Agent for Midland National Life
Insurance Company
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EXHIBIT A
DESCRIPTION OF THE TRANSACTION
NACT is in the business of providing software and hardware for switching,
billing, provisioning, and management solutions for the telecommunications and
related industries. NACT is (i) a wholly-owned subsidiary of Guarantor and (ii)
is the tenant pursuant to the Lease, Verso has guaranteed NACT's obligations
under the Lease. NACT Acquisition plans to purchase substantially all of the
NACT assets (including its business as described above) pursuant to an Asset
Purchase Agreement dated the date of the Instrument of Assignment, Agreement and
Consent to which this Description of Transaction is attached as Exhibit A.
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