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Exhibit 15
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated
as of August 19, 1997, between XXXXXXXXXX ASSOCIATES L.P., a Delaware limited
partnership ("Assignor"), and XXXXXXXXXX ASSOCIATES II L.P., a Delaware limited
partnership (acting through its general partner, Xxxxxxxxxx Partners II LLC, a
Delaware limited liability company (the "General Partner") (together with its
successors and assigns, "Assignee").
W I T N E S S E T H:
WHEREAS, Assignor has formed the Assignee as a limited
partnership under the laws of the State of Delaware pursuant to a Certificate of
Limited Partnership filed with the Office of the Secretary of State of the State
of Delaware on August 12, 1997 and an Agreement of Limited Partnership (the
"Partnership Agreement", dated as of August 12, 1997, by and among the General
Partner and the Initial Limited Partner (as defined in the Partnership
Agreement) for the purpose of holding certain assets and investments of the
Assignor;
WHEREAS, Assignor, Xxxxxxxxxx Partners L.P., a Delaware
limited partnership and the general partner of Assignor, and Landmark Equity
Partners V, L.P. have entered into an Investment Agreement, dated August 7, 1997
(the "Landmark Agreement"), pursuant to which Assignor has agreed, subject to
the consent of its limited partners, to transfer and assign to Assignee certain
assets and liabilities as a capital contribution in exchange for all of the
limited partnership interests of the Assignee; and
WHEREAS, Assignee wishes to acquire such assets and assume
such liabilities;
WHEREAS, the requisite number of limited partners of the
Assignor have approved the transfer of assets and liabilities pursuant to the
Consent and Amendment Number 8, dated as of August 15, 1997, to the Amended and
Restated Limited Partnership Agreement of the Assignor, dated as of April 16,
1984, as further amended, by and among the General Partner and the limited
partners named on the signature pages thereto (the "XXXX Partnership
Agreement");
WHEREAS, certain assets and liabilities of Assignor relating
to IVEX Corporation, ONTOS, Inc. and Quantrad Sensor Inc. were transferred to
Assignee
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pursuant to that certain Assignment and Assumption Agreement, dated as of August
18, 1997, between Assignor and Assignee (the "IVEX Assignment Agreement");
NOW, THEREFORE, in consideration of the foregoing, the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Transfer of Assets. Subject to Section 2, Assignor hereby
assigns, transfers, sets over and conveys to Assignee all of the right, title
and interest of Assignor in and to all of the assets (in each case subject to
any security interests of Republic National Bank pursuant to the Continuing
General Security Agreement, dated December 5, 1996) of the Assignor as the same
shall exist on the date hereof, including, without limitation, the following
(collectively, the "Transferred Assets"), in exchange for 100% of the Class A
and Class B limited partnership interests of the Assignee:
(a) all Securities (as defined in the Securities Act of 1933,
as amended) of the issuers named on Schedule A attached hereto (the
"Portfolio Companies") owned by Assignor;
(b) all contracts and written agreements arising out of,
pertaining to or in connection with the Transferred Assets (other than
any agreement between Assignor and its consultants and employees) to
which Assignor is a party (the "Investment Agreements") and any and all
pledge, security or guaranty agreements with respect to the Transferred
Assets, and any and all contractual rights relating to the Portfolio
Companies or the Securities issued by the Portfolio Companies,
including any right to assert claims and take other rightful actions in
respect of breaches, defaults and other violations of such Investment
Agreements;
(c) all (i) proceeds paid to the Assignor from the sale,
assignment, transfer, conversion, exchange, redemption, exercise,
repayment, waiver, release, compromise, settlement or satisfaction of
any Transferred Assets, and (ii) distributions, dividends, interest and
payments of cash, Securities or other property declared, paid or made
with respect to or in connection with the Transferred Assets after
April 30, 1997, including all interest earned on dividends and on
distributions of Securities sold or otherwise liquidated, distributions
and other payments, in each case received by the Assignor between
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August 7, 1997 and the First Closing Date (as defined in the Landmark
Agreement);
(d) all notes, bonds and other evidence of indebtedness of and
rights to receive payment from any person or entity held by Assignor
(other than amounts payable by Xxxxxxxxxx Partners L.P. to the Assignor
pursuant to the XXXX Partnership Agreement, including, without
limitation, under Section 6.2 (Management Fees) and Article XII
(Dissolution and Winding-Up) of the XXXX Partnership Agreement), all
cash on hand and in bank accounts, certificates of deposit and cash
equivalents held by Assignor, including the bank accounts listed in
Schedule C hereto and amounts held therein;
(e) all guaranties, warranties, indemnities and similar rights
in favor of Assignor with respect to the Transferred Assets; and
(f) all other property and assets of Assignor of every kind,
nature and description, real, personal and mixed, tangible and
intangible, wherever situated, including all assets reflected on the
books of account of the Assignor as of the date hereof.
2. Third Party Consents. This Agreement shall not constitute
an assignment or transfer to Assignee of any interest in or right under any
Investment Agreement or of title to any asset or property, if an assignment or
transfer, or an attempt to make such assignment or transfer, without the consent
of any party other than Assignor would constitute a breach or violation thereof,
unless and until such consent has been obtained.
3. Assumption of Liabilities. Assignee hereby assumes and
agrees to pay, satisfy, honor, perform and discharge, as and when due, and
otherwise in accordance with the relevant governing agreements and instruments
all liabilities, obligations, debts, contracts and commitments of any kind,
character or description of Assignor, whether absolute, accrued, liquidated,
unliquidated, contingent, executory or otherwise, howsoever and whensoever
arising, that remain unpaid or unsatisfied (the "Assumed Liabilities"),
including, without limitation, the following:
(a) all duties, obligations and liabilities of Assignor under
or in respect of the Transferred Assets, and all obligations and
liabilities of Assignor under all Investment Agreements assigned by
Assignor to Assignee pursuant to Section 1 of this Agreement; and
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(b) all duties, obligations and liabilities of the Assignor
under the secured revolving credit facility from Republic National Bank
of New York ("Republic Bank"), as evidenced by the Grid Notes, dated
December 5, 1996, in the principal amount of $7,000,000 and May 20,
1997, in the principal amount of $2,500,000, issued by the Assignor to
Republic Bank, the Continuing General Security Agreement, dated
December 5, 1996, between the Assignor and Republic Bank and any and
all related security, pledge or guaranty agreements to which the
Assignor is a party; and
(c) all liabilities shown on the balance sheet of Assignor
dated June 30, 1997 (other than liabilities, if any, relating to IVEX
Corporation, ONTOS, Inc. and Quantrad Sensor Inc. and assumed by
Assignee pursuant to the IVEX Assignment Agreement).
4. Agreement to be Bound. The Assignee hereby assumes the
obligations of the Assignor assigned and transferred pursuant to this Agreement
and hereby agrees to be bound by and comply with all of the terms of the
Investment Agreements as if Assignee was initially a party thereto in the place
of the Assignor.
5. Further Assurances. Each party hereto agrees promptly to
execute and deliver any and all such instruments and to take any and all such
other actions as either party may from time to time reasonably request in order
to vest in Assignor title to the assets transferred hereby and give effect to
the foregoing provisions of this Agreement.
6. Power of Attorney. Assignor hereby constitutes and appoints
Assignee the true and lawful attorney of Assignor with full power of
substitution, in the name of Assignor or otherwise, and on behalf and for the
benefit of Assignee, to demand and receive from time to time any and all
Transferred Assets; to give receipts, releases and acquittances for or in
respect of the same or any part thereof; to collect, for the account of
Assignee, all receivables and other items transferred to Assignee as provided
herein, and to endorse with the name of Assignor any check received on account
of any such receivables or any other item; from time to time to institute and
prosecute in the name of Assignor or otherwise any and all proceedings at law,
in equity or otherwise, which Assignee may deem proper to collect, assert or
enforce any claim, right, title, debt or account hereby assigned and transferred
or intended so to be; and to take any action necessary to effect the transfer to
Assignee of full legal title in and to, and beneficial ownership of, the
Transferred Assets. Assignor hereby declares that the foregoing powers are
coupled with an interest and shall not be revocable by it in any manner or for
any reason.
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7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE DELAWARE WITHOUT
REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
8. Miscellaneous. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument. This Agreement shall not
be assigned by either party without the prior written consent of the other
party. This Agreement shall inure to the benefit of, and be binding on and
enforceable against, the successors and permitted assigns of the parties
hereto. This Agreement may not be amended, nor may any term hereof be waived,
except by an agreement in writing signed by both parties.
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IN WITNESS WHEREOF, Assignor and Assignee have duly executed
this Assignment and Assumption Agreement by their authorized representatives as
of the date first above written.
Assignor:
XXXXXXXXXX ASSOCIATES L.P.,
By: XXXXXXXXXX PARTNERS L.P.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: General Partner
Assignee:
XXXXXXXXXX ASSOCIATES II L.P.,
By: XXXXXXXXXX PARTNERS II, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Manager
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