EXHIBIT 10.11
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of December 30, 1997, by and between
LogiMetrics, Inc., a Delaware corporation (the "Seller"), and Newstart Factors,
Inc., a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller is the sole owner of a $2,621,694.81 Secured
Promissory Note, dated December 1, 1997 (the "Note"), issued by CellularVision
of New York, L.P. ("CVNY" or "Borrower") in favor of the Seller; and
WHEREAS, CVNY's obligation to repay the Note is secured by certain
collateral (the "Collateral") to the extent and as specified in a General
Security Agreement, dated as of December 1, 1997 (the "Security Agreement"), by
and between CVNY and the Seller; and
WHEREAS, the Seller has received the first five principal payments on
the Note, each in the amount of $9,900 (the "Seller Payments"); and
WHEREAS, the Seller and the Purchaser desire that, as of the Closing
Date (as defined below) and subject to the terms and conditions of this
Agreement, the Seller shall sell, assign and transfer to the Purchaser, and the
Purchaser shall purchase and take from the Seller, all of the Seller's right,
title and interest in and to, or arising under or in connection with (i) the
Note, the Security Agreement, all UCC-1s filed or to be filed in favor of the
Seller related thereto and all agreements, instruments and documents executed in
connection with the foregoing (including without limitation, all exhibits,
schedules and amendments thereto and any agreements, documents or instruments
pursuant to which the Seller acquired such rights, title and interests
(collectively, the "Transaction Documents"), (ii) all rights and claims that the
Seller has had, now has or may hereafter acquire to recover or receive cash
payments, securities, interest, dividends or other property under or in respect
of the foregoing or the Related Rights or Guarantee and Collateral Rights (each
as defined below), (iii) all rights and claims (including, without limitation,
"claims" as defined in Section 101(5) of title 11, United States Code (the
"Bankruptcy Code")), choses in action or causes of action of any nature
whatsoever (including, without limitation, all bankruptcy and bankruptcy related
claims) whether or not such claims are fixed, known or unknown, contingent or
noncontingent, secured or unsecured, liquidated or unliquidated, matured or
unmatured to the extent arising under or in connection with the Transaction
Documents (collectively, the "Claims") that the Seller has had, now has or may
hereafter acquire against any party, including CVNY and all other parties
obligated under or in connection with any of the foregoing or the Guarantee and
Collateral Rights, (collectively, the "Related Rights"), (iv) all rights and
claims that the Seller has had, now has or may hereafter acquire against any
Guarantors (each a "Guarantor") or any other person or entity or against, in or
to property under or in connection with any guarantee, security interest, lien,
mortgage, pledge, deed of trust, deposit account, set-off, or other collateral
(and any substitutions therefor or additions thereto) related to or securing, as
the case may be, the obligations under the Transaction Documents (together, the
"Guarantee and Collateral Rights"), (v) any and all rights, claims and causes of
action of the Seller
against CellularVision Technology & Telecommunications, L.P. ("CT&T") with
respect to the transactions giving rise to the Note, including, without
limitation, the sale of the equipment constituting the Collateral, and (vi) any
and all cash, securities, dividends and other property or consideration,
regardless of type, which may be exchanged for, distributed or collected in
respect of the foregoing (including, without limitation, any fees,
reimbursements and all other amounts payable to the Seller from time to time
under or in respect of the Transaction Documents and the Claims) (collectively,
"Distributions"). All of the Seller's right, title and interest in and to all of
the foregoing rights and assets set forth in this fourth recital are
collectively referred to hereinafter as the "Transferred Interest".
Notwithstanding the foregoing, the Transferred Interest shall not include, and
the Purchaser is not acquiring, any of the Seller's right, title or interest in
or to or obligations under (w) the Letter Agreement, dated as of December 1,
1997 (as amended, modified or supplemented from time to time, the "Letter
Agreement"), by and between the Seller and CVNY, (x) any purchase orders from
CVNY, whether currently existing (provided the same do not relate to any of the
Collateral) or received hereafter, (y) any contract, agreement, arrangement or
understanding between the Seller and CVNY arising after the date hereof (to the
extent not related to the subject matter of this Agreement), or between the
Seller and any other person or entity whenever arising, and (z) any transaction
between the Seller, CVNY, CT&T or any of their respective affiliates occurring
after the date hereof (to the extent not related to the subject matter of this
Agreement) and the term "Transaction Documents" shall not include any of the
foregoing.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound, the parties
hereto hereby agree as follows:
1. The Seller hereby bargains, sells, assigns, transfers and conveys
to the Purchaser, without recourse or warranty of any kind or nature whatsoever,
except as expressly set forth herein, all of its right, title and interest in
the Transferred Interest. To further perfect the Purchaser's acquisition of the
Seller's rights under the Note, the Seller hereby bargains, sells, assigns and
transfers to the Purchaser any and all security interests or liens that it may
have in the collateral securing CVNY's obligations under the Note, whether
arising by operation of law or by agreement, including, without limitation, its
right, title and interest in and under the Security Agreement. Simultaneous
herewith, the Seller is delivering to the Purchaser (i) the Note, duly endorsed
to the order of the Purchaser, without recourse (except as provided for in this
Agreement), together with an original counterpart of the Security Agreement and
copies of all related UCC-1s filed in favor of the Seller; provided, however,
that the Seller shall as promptly as practicable file UCC-1s in respect of the
Collateral with the Secretary of State of New Jersey and the Recorder of Deeds
in Monmouth County, New Jersey and shall deliver to the Purchaser copies of such
UCC-1s promptly following the receipt of acknowledgment copies thereof, and (ii)
duly executed UCC-3s assigning to the Purchaser its rights under the UCC-1s
previously filed by the Seller with respect to such security interests and
liens; provided, however, that the Seller shall deliver to the Purchaser duly
executed UCC-3s in respect of the UCC-1s filed by the Seller in New Jersey
promptly following the receipt of acknowledgment copies of such UCC-1s. On the
Closing Date, the Purchaser and the Seller shall send to CVNY a joint notice
notifying CVNY of the assignment by the Seller of its rights under the Note and
the other Transaction Documents to
the Purchaser and requesting that all future payments under the Note be made to
such account or accounts as the Purchaser may specify.
2. In payment in full of the purchase price of the Note, the Purchaser
is herewith paying to the Seller $2,380,100 in cash by wire transfer of
immediately available funds to an account or accounts previously specified by
the Seller (the "Purchase Price"). The Purchase Price will be paid upon
Purchaser's receipt of (i) this Agreement duly executed by the Seller, (ii) the
documents referred to in Section 1 hereof (to the extent required to be
delivered on or prior to the Closing Date) and subject to the representations
and warranties of Seller made herein being true and correct. The date on which
the Purchase Price is paid is herein referred to as the "Closing Date."
3. The Seller hereby represents and warrants to the Purchaser on the
date hereof and as of the Closing Date as follows:
3.1. The Seller is a corporation duly organized and validly
existing under the laws of the State of Delaware and has the corporate power and
authority to own its assets and to conduct its business as presently conducted.
3.2. The Seller has the corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder, all of
which have been duly authorized by all requisite corporate action. This
Agreement has been duly authorized, executed and delivered by the Seller and
constitutes a valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms.
3.3. Neither the execution and delivery of this Agreement nor the
performance by the Seller of its obligations hereunder will (i) contravene any
provision contained in the Seller's Certificate of Incorporation, as amended or
by-laws, or (ii) violate or result in a breach (with or without the lapse of
time, the giving of notice or both) of or constitute a default under (A) any
contract, agreement, commitment, indenture, mortgage, lease, pledge, note,
license, permit or other instrument or obligation or (B) any judgment, order,
decree, law, rule or regulation or other restriction of any governmental
authority, in each case to which the Seller is a party or by which it is bound
or to which any of its assets or properties are subject.
3.4. No notice to, filing with, or authorization, registration,
consent or approval of any governmental authority or other person or entity is
necessary for the execution, delivery or performance of this Agreement by the
Seller or the consummation by the Seller of the transactions contemplated
hereby.
3.5. The Seller is the sole owner of record of the Note, is the
sole beneficial owner of the Note and has good, indefeasible and marketable
title thereto. Upon payment of the purchase price specified in Section 2 hereof,
the Purchaser will acquire good title to the Note free and clear of any lien,
encumbrance, claims or security interests, excluding those created by the
Purchaser.
3.6. The Seller has not pledged, encumbered, assigned,
transferred, participated, conveyed, disposed of, terminated or granted any
security interest in, in whole or in part, any of its right, title and interest
in and to the Transferred Interest and is not a party to any agreement (other
than this Agreement) which would result in the foregoing.
3.7. No litigation, arbitration or adversarial proceeding is
pending against the Seller or, to the Seller's actual knowledge, threatened
against it which could reasonably be expected to have a materially adverse
effect on the Transferred Interest.
3.8. The Seller is not, nor has it ever been, an "insider" of the
Borrower or any Guarantor as such term is defined in Section 101(31) of the
Bankruptcy Code.
3.9. The unpaid principal amount of the Note is $2,572,194.81.
3.10. The Transferred Interest is a valid obligation of CVNY and
is not subject to avoidance, reduction, disallowance, subordination, except as
set forth in the Letter Agreement, or offset, and the Seller knows of no fact
and has received notice of no allegation which would, if proved, result in the
avoidance, reduction, disallowance, subordination or offset of the Transferred
Interest.
3.11. Other than the Transaction Documents, the Seller is not a
party to or bound by any document, instrument or agreement that could reasonably
be expected to materially and adversely affect the Transferred Interest and the
Seller has not agreed to any waiver, amendment or modification to any of the
Transaction Documents.
3.12. The Seller has not entered into any agreement granting to
the Borrower any right of setoff or recoupment against the Transferred Interest,
nor has the Borrower set off any funds or other property in satisfaction of the
Transferred Interest.
3.13. Except for the Seller Payments, the Seller has not received
any payments or transfers from or on account of the Borrower in respect of the
Transferred Interest on or after the date which is 91 days prior to the Closing
Date.
3.14. The Seller has received, reviewed and relied upon such
information concerning the legal, business and financial condition of the
Borrower and the Transferred Interest as it considers adequate to make an
informed decision regarding the sale of the Transferred Interest.
3.15. The Seller is a sophisticated seller with respect to the
Transferred Interest; the Purchaser has not given any investment advice or
rendered any opinion to it as to whether the sale of the Transferred Interest is
prudent, and the Seller is not relying on any representation or warranty of the
Purchaser except as expressly set forth in this Agreement; the Seller
acknowledges that the Purchase Price may vary from any distributions that the
Purchaser may ultimately recover on account of the Transferred Interest and is
aware that additional information regarding the Transferred Interest may be
obtained from various court or other public files.
3.16. Without in any way implying that the Transferred Interest
is a "security" within the meaning of applicable securities laws, no offer to
sell or solicitation of any offer to buy any portion of the Transferred Interest
has been made by the Seller in a manner that would violate or require
registration under such applicable securities laws.
3.17. The Seller has not breached any of its representations,
warranties, covenants, agreements or obligations under the Transaction
Documents.
3.18. The Seller has provided the Purchaser with true and
complete copies of the Transaction Documents and any amendments, waivers or
modifications thereof.
3.19. Except as set forth in the Letter Agreement, the Seller has
not subordinated or agreed to subordinate all or any portion of the Transferred
Interest to any other obligation of the Borrower including, without limitation,
any unsecured deficiency claim asserted by a secured creditor.
3.20. The security interests and liens granted to the Seller
under the Security Agreement and the other Transaction Documents (and assigned
to the Purchaser hereunder) constitute valid and perfected first priority liens
and security interests in and upon the Collateral (as defined in the Security
Agreement).
3.21. The Seller has no obligation to make additional loans or
extensions of credit under the Transaction Documents.
3A. The Seller shall perform its obligations under the Letter
Agreement in conformity with the terms thereof as the same become due.
4. The Purchaser hereby represents and warrants to the Seller on the
date hereof and as of the Closing Date as follows:
4.1. The Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware and has the corporate power and
authority to own its assets and to conduct its business as presently conducted.
4.2. The Purchaser has the corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder, all
of which have been duly authorized by all requisite corporate action. This
Agreement has been duly authorized, executed and delivered by the Purchaser and
constitutes a valid and binding obligation of the Purchaser, enforceable against
the Purchaser in accordance with its terms.
4.3. Neither the execution and delivery of this Agreement nor the
performance by the Purchaser of its obligations hereunder will (i) contravene
any provision contained in the Purchaser's Certificate of Incorporation, as
amended or by-laws, or (ii) violate or result in a breach (with or without the
lapse of time, the giving of notice or both) of or constitute a default
under (A) any contract, agreement, commitment, indenture, mortgage, lease,
pledge, note, license, permit or other instrument or obligation or (B) any
judgment, order, decree, law, rule or regulation or other restriction of any
governmental authority, in each case to which the Purchaser is a party or by
which it is bound or to which any of its assets or properties are subject.
4.4. No notice to, filing with, or authorization, registration,
consent or approval of any governmental authority or other person or entity is
necessary for the execution, delivery or performance of this Agreement by the
Purchaser or the consummation by the Purchaser of the transactions contemplated
hereby.
4.5. The Purchaser is an Accredited Investor, as such term is
defined in Rule 501 of the rules and regulations of the Commission promulgated
under the Securities Act of 1933, as amended. Without in any way implying that
the Transferred Interest is a "security" within the meaning of applicable
securities laws, the Purchaser is not acquiring the Transferred Interest with a
view to resale or distribution in a manner that would violate applicable
securities laws. The Purchaser has substantial experience in making investment
decisions of the type contemplated hereby and is making its own investment
decision and has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of purchasing the Note as
contemplated hereby. The Purchaser has performed, and will continue to perform,
its own independent credit analysis of CVNY and has obtained from publicly
available sources (other than the Seller and its representatives) sufficient
information regarding CVNY and its business and prospects to allow it to make an
informed decision to purchase the Note as contemplated hereby. The Purchaser
understands that no representative of the Seller has been authorized to give any
information or to make any representations or warranties of any kind or nature
whatsoever in connection with the transactions contemplated hereby, except as
expressly set forth herein, and, if given or made, the Purchaser acknowledges
that such information, representations or warranties were not authorized by the
Seller and, therefore, may not be relied upon by the Purchaser and have not been
relied upon by the Purchaser in making its decision to purchase the Note.
Without limiting the generality of the foregoing, the Purchaser acknowledges
that the Seller has made no representation or warranty except as expressly set
forth herein regarding (i) the accuracy or completeness of any information
obtained by the Purchaser regarding CVNY, its business or prospects, (ii) the
validity, enforceability or legal effect of the Transaction Documents, or (iii)
the creditworthiness of CVNY or the value, adequacy or collectibility of the
Collateral securing the Note. The Purchaser acknowledges that its purchase of
the Note is highly speculative and that it might sustain a complete loss of its
investment therein. The Purchaser has the financial ability to bear the economic
risk of losing its entire investment in the Note.
5. The Seller and the Purchaser shall cooperate fully with each other
and shall (i) execute and deliver to each other such other documents, and (ii)
do such other acts and things, all as the other party may at any time reasonably
request for the purpose of carrying out the intent of this Agreement and the
sale of the Note as contemplated hereby. Should the Seller receive any
Distributions on or after the Closing Date, it will pay the same over to the
Purchaser in the currency received by it or, in the case of securities (to the
extent permissible by law and relevant documentation), without recourse or
warranty of any kind or nature whatsoever, endorse or cause to be registered in
the Purchaser's name or such name as the Purchaser may direct (at the
Purchaser's sole expense) in writing and deliver to the Purchaser or such person
as the Purchaser may direct such securities within four business days after
receipt of any such Distribution. If any such cash Distribution is not paid to
the Purchaser within such time period, the Seller will pay interest on such
Distribution for the period from the day on which such Distribution was actually
received by the Seller to (but excluding) the day such Distribution is actually
paid to the Purchaser, at a rate per annum equal to the Federal Funds Rate as
most recently reported in the Wall Street Journal (Eastern Edition) prior to the
date of payment by the Seller. Until payment is made pursuant to this Section 5,
the Seller shall hold the same in trust for the Purchaser's account. In the
event that the Seller cannot cause any non-cash Distribution to be re-registered
as set forth above, it will promptly after receipt transfer such non-cash
Distribution to the Purchaser with proper endorsements (without recourse or
warranty, express or implied) or transfer powers duly endorsed in blank, unless
the Seller is prohibited from the foregoing under any law, rule, order or
contract in which case the Seller will continue to hold the same in trust for
the Purchaser. Subject to the occurrence of the Closing Date: (i) if the Seller
receives any documents, notices or correspondence in respect of the Transferred
Interest or Transaction Documents it shall promptly forward the same to the
Purchaser; (ii) the Purchaser shall have sole authority to exercise all voting
and other rights and remedies with respect to the Transferred Interest; and
(iii) in the event that, for any reason, the Purchaser is not permitted to
exercise such voting and other rights and remedies, the Seller agrees that it
will act or refrain from acting in respect of any vote, decision or act (each
such vote, decision, act or inaction, an "Action") to be made by the Seller in
respect of the Transferred Interest strictly in accordance with the instructions
of the Purchaser.
6. (a) The Purchaser shall indemnify and hold harmless the Seller
(and the Seller's officers, directors, partners, employees and agents) from any
actual losses, costs or expenses, including reasonable legal fees and expenses,
which arise out of or are incurred as a result of (i) breaches of any of the
representations, warranties, covenants or agreements made by the Purchaser in
this Agreement, (ii) any Action taken by the Seller pursuant to the direction of
the Purchaser or any subsequent holder of the Transferred Interest pursuant to
Section 5 hereof, or (iii) any act or omission of the Purchaser or any
subsequent holder of the Transferred Interest with respect to the Transferred
Interest on or after the Closing Date.
(b) The Seller shall indemnify and hold harmless the Purchaser
(and the Purchaser's officers, directors, partners, employees and agents) from
any actual losses, costs or expenses, including reasonable legal fees and
expenses, which arise out of or are incurred as a result of (i) breaches of any
of the Seller's representations, warranties, covenants or agreements made in
this Agreement or any Transaction Document, (ii) any obligation of the Purchaser
to disgorge, or otherwise reimburse to the Borrower, or any other party for any
payments received by the Seller in respect of the Transferred Interest, (iii)
any act or omission of the Seller with respect to the Transferred Interest prior
to the Closing Date, or (iv) any act or omission of the Seller in connection
with its continuing business relationship with CVNY or CT&T. In the event that
the Seller is required to make any payment pursuant to clause (ii) above, the
Purchaser shall assign to the Seller any claim or right the Purchaser may have
against the Borrower or any other party in respect thereof.
7. Each of the Purchaser and the Seller shall pay its own expenses
incident to this Agreement and the transactions contemplated hereby. The Seller
shall be responsible for all costs and expenses reimbursable under or pursuant
to the Transferred Interest and the Transaction Documents which were incurred,
accrued or arose prior to the Closing Date (the "Pre-Closing Expenses"). From
and after the Closing Date, the Purchaser shall be responsible for the payment
of all costs and expenses reimbursable under or in connection with the
Transferred Interest and the Transaction Documents, other than the Pre-Closing
Expenses.
8. All notices, consents, requests, and other communications under
this Agreement shall be in writing and shall be effective: (a) upon delivery by
hand; (b) one day after being deposited with a recognized overnight delivery
service; (c) if sent by facsimile, upon receipt of a clear transmission
report--in each case addressed to such party as follows (or to such other
address as hereafter may be designated in writing by such party to the other
party):
If to the Purchaser:
Newstart Factors, Inc.
0 Xxxxxxxx Xxxxx
Xxxxx 0000
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Seller:
LogiMetrics, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9. This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of New York, without reference to the
choice of law principles thereof. Each of the parties hereto irrevocably submits
to the non-exclusive jurisdiction of the courts of the State of New York and the
United States District Court for the Southern District of New York for the
purpose of any suit, action, proceeding or judgment relating to or arising out
of this Agreement and the transactions contemplated hereby. Service of process
in connection with any such suit, action or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Agreement. Each of the parties hereto irrevocably
consents to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
10. The Purchaser shall have the right to sell, assign or otherwise
transfer the Transferred Interest and all of its rights and obligations
hereunder or any portion thereof without the consent of the Seller; provided
that (i) such transfer shall not violate any law, rule, regulation, order, writ,
judgment, injunction or decree, (ii) in connection with any such transfer the
Purchaser shall obtain a representation from its transferee substantially to the
effect set forth in Section 4.5 hereof, and (iii) the Purchaser shall remain
primarily liable for the performance of its obligations hereunder
notwithstanding any such sale, assignment or transfer unless the Seller consents
thereto (which consent shall not be unreasonably withheld). In the event of such
a sale, assignment or transfer, the Seller shall, at the Purchaser's sole cost
and expense, execute and deliver all documents as the Purchaser may reasonably
request to effect the consummation of such sale, assignment or transfer. The
Seller may not assign its obligations hereunder without the Purchaser's consent
(which consent shall not be unreasonably withheld).
11. This Agreement may be executed in counterparts, each of which
shall be deemed an original agreement, and all of which together shall
constitute one and the same instrument.
12. This Agreement constitutes the entire agreement among the parties
with respect to the matters covered hereby and supersedes all previous written,
oral or implied understandings among them with respect to such matters.
13. This Agreement may only be amended or modified in writing signed
by the party against whom enforcement of such amendment or modification is
sought.
14. Any of the terms or conditions of this Agreement may be waived at
any time by the party or parties entitled to the benefit thereof, but only by a
writing signed by the party or parties waiving such terms or conditions.
15. The invalidity of any portion hereof shall not affect the
validity, force or effect of the remaining portions hereof. If it is ever held
that any restriction hereunder is too broad to permit enforcement of such
restriction to its fullest extent, such restriction shall be enforced to the
maximum extent permitted by law.
16. Each of the Purchaser and the Seller acknowledge that this
Agreement has been prepared jointly by the parties hereto, and shall not be
strictly construed against either party.
17. The representations, warranties, covenants, agreements and
indemnities contained herein shall survive the execution, delivery and
performance of this Agreement and all documents to be executed in connection
herewith. This Agreement, including, without limitation, the representations,
warranties, covenants and indemnities contained herein, shall be binding upon
and inure to the benefit of the parties hereto and (subject to Section 10) their
respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
LOGIMETRICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
_________________________
Name: Xxxxxx X. Xxxxxx
Title: President
NEWSTART FACTORS, INC.
By: /s/ Xxxxx Xxxxxxx
_________________
Name: Xxxxx Xxxxxxx
Title:
