ASSIGNMENT
----------
ASSIGNMENT (this "Assignment"), dated as of October 16, 2001, is made
----------
and entered into by and between Vita Special Purpose Corp., a Delaware
corporation ("Assignor"), and Xxxx Capital Royalty Acquisition Fund, L.P., a
--------
Delaware limited partnership ("Assignee"). All capitalized terms used herein
--------
and not defined shall have the meanings ascribed to them in the Assignment
Agreement (as defined below).
WHEREAS, Assignor, Assignee and Orthovita, Inc., a Pennsylvania
corporation, are parties to that certain Revenue Interests Assignment Agreement,
dated as of October 16, 2001 (the "Assignment Agreement"), pursuant to which,
--------------------
among other things, Assignor agrees to sell, assign, transfer and convey to
Assignee, and Assignee agrees to purchase from Assignor, all of Assignor's
rights and interests in and to the Assigned Interests, for consideration in the
amount and on the terms and conditions provided therein; and
WHEREAS, the parties now desire to carry out the purposes of the
Assignment Agreement by the execution and delivery of this instrument evidencing
Assignee's purchase and acceptance of the Assigned Interests;
NOW, THEREFORE, in consideration of the foregoing premises and of
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Sale and Assignment of Assigned Interests. Assignor hereby
-----------------------------------------
transfers, sells, conveys and assigns to Assignee free and clear of all Liens
(except those Liens created in favor of Assignee pursuant to the Security
Agreement and any other Transaction Document), all of Assignor's rights and
interests in and to all of the Assigned Interests.
2. No Assumption of Obligations. The parties hereby acknowledge that
----------------------------
Assignee is not assuming any debt, liability or obligation of Assignor, known or
unknown, fixed or contingent, in connection with the Assigned Interests,
including, without limitation, the Excluded Liabilities and Obligations.
3. Further Assurances. Each party hereto shall execute, acknowledge
------------------
and deliver to the other party any and all documents or instruments, and shall
take any and all actions, reasonably required by such other party from time to
time, to confirm or effect the matters set forth herein, or otherwise to carry
out the purposes of the Assignment Agreement and this Assignment and the
transactions contemplated thereby and hereby.
4. Assignment Agreement. This Assignment is entered into pursuant to
--------------------
and is subject in all respects to all of the terms, provisions and conditions of
the Assignment Agreement, and nothing herein shall be deemed to modify any of
the representations, warranties, covenants and obligations of the parties
thereunder.
5. Interpretation. In the event of any conflict or inconsistency
--------------
between the terms, provisions and conditions of this Assignment and the
Assignment Agreement, the terms, provisions and conditions of the Assignment
Agreement shall govern.
6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
7. Counterparts. This Assignment may be executed in counterparts,
------------
each of which shall be deemed to be an original, but all of which together shall
constitute a single agreement.
[Signature Page To Follow]
2
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be duly executed as of the date first above written.
ASSIGNOR: VITA SPECIAL PURPOSE CORP.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ASSIGNEE: XXXX CAPITAL ROYALTY ACQUISITION FUND, L.P.
By: Xxxx Capital Management, LLC,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxxxx, M.D.
Title: Managing Member
[Signature Page to Assignment]
3
