EXHIBIT 10.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
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THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into by and between
ATCALL, Inc., a Delaware corporation located at 0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000 (the "Assignor"), EqualNet Corporation, a Delaware
corporation located at 0000 Xxxx Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx (the
"Assignee") on this 22nd day of March, 2000 and RFC Capital Corporation, a
Delaware corporation, located at 000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxx 00000 (RFC).
WITNESSETH:
WHEREAS, the Assignor and RFC have entered into a certain (i) Receivables
Sale Agreement dated July 11, 1997, as amended (together with any agreement,
instrument or document executed or delivered in connection therewith, the RSA)
and (ii) Loan and Security Agreement and Promissory Note dated June 26, 1998, as
amended (together with any agreement, instrument or document executed or
delivered in connection therewith, the LSA) (the RSA and LSA, collectively the
Transaction Documents);
WHEREAS, on or about December, 1999, Assignor filed a petition under Title
11 of the United States Code, as amended, with the Bankruptcy Court for the
Eastern District of Virginia, bankruptcy case number 99-16016 (the Proceeding);
and
WHEREAS, the Assignor desires to assign and Assignee desires to assume all
of the rights, title, interests, liabilities, duties and obligations arising
under the Transaction Documents and other assets in the manner and on the terms
set forth herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, do hereby represent, warrant, covenant and agree as follows:
1. Assignment. Assignor hereby sells, assigns, conveys, and otherwise
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transfers and delivers to Assignee all rights, title and interests in the
Transaction Documents, and all accounts receivable of Assignor which have arisen
or will arise in the future from the provision or sale of telecommunication
goods, equipment and/or services, including but not limited to any right to
payment with respect thereto or other obligations of any obligor relating
thereto and any and all proceeds relating to the foregoing (the "Assets").
Assignee acknowledges and agrees that such Assets are being assigned by Assignor
to Assignee subject to any and all liens, claims and encumbrances held or
maintained by RFC.
2. Assumption. The Assignee hereby accepts the foregoing assignment and
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expressly assumes all of the liabilities, duties and obligations of Assignor
pursuant to or arising from the Transaction Documents and with respect to the
Assets as of the date hereof, whether known or unknown, tangible or intangible,
actual or contingent, and including any and all liens, claims and encumbrances
held and/or maintained by RFC.
3. Representations Regarding Assets. The Assignor hereby covenants with
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Assignee that Assignor is the lawful owner of the Assets and the rights hereby
transferred or intended to be so transferred, and that Assignor has the right
and authority to transfer, assign and convey the Assets to Assignee, without
qualification or the consent of any third party other than as such consent may
relate to the Proceeding, and that such Assets are hereby transferred free and
clear of any lien, liability, claim or encumbrance except with respect to any
and all such liens, liabilities, claims and encumbrances held and/or maintained
by RFC.
4. Further Assurances.
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a. From and after the date hereof, Assignor shall duly perform such
further acts and duly execute, acknowledge and deliver all such
further bills of sale, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably required to convey to and
vest in Assignee all of Assignor's right, title and interest in and
the benefits of the Assets intended to be conveyed, transferred and
assigned pursuant to this Agreement. Assignor hereby constitutes and
appoints Assignee its true and lawful attorney-in-
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fact, with full power of substitution, in the name of Assignee or
Assignor, but on behalf of and for the benefit of Assignee, to demand,
collect, and receive for the account of Assignee all Assets hereby
sold, conveyed, assigned or transferred to Assignee, to institute and
prosecute, in the name of Assignor, Assignee, or otherwise, all
proceedings which Assignee may deem necessary in order to realize
upon, affirm, or obtain title to or possession of or to collect,
assert, or enforce any claim or right in, to or under the Assets, to
defend and compromise any and all actions, suits or proceedings in
respect of any of the Assets and to do all such acts and things in
relation thereto as Assignee shall deem necessary. Assignor agrees
that the foregoing powers are coupled with an interest and are and
shall be irrevocable by Assignor for any reason.
b. Assignee covenants to execute such other assignments, security
agreements,financing statements, and other documents that RFC may
reasonably deem necessary to further evidence the obligations provided
for herein or under the Transaction Documents, or to perfect, extend,
or clarify RFC's rights in the respective collateral interests
thereunder.
5. Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of the parties hereto, and their respective successors in
interest and assigns.
6. Governing Law. This Assignment and Assumption Agreement shall be
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governed by and construed in accordance with the internal laws (as opposed to
conflict of laws provisions) of the State of Ohio.
7. Notices. All notices in connection with this Assignment and Assumption
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Agreement shall be in writing and mailed or telecommunicated, or delivered as to
each party hereto, at its address set forth under its name on the signature
page(s) hereof or at such other address as shall be designated by such party in
a written notice to the other party. All notices shall be effective upon receipt
by the party to whom addressed.
8. Survival. All of the obligations of the parties set forth in this
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Assignment and Assumption Agreement shall survive the termination of the
Transaction Documents.
9. Counterparts. This Assignment and Assumption Agreement may be executed
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in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by the duly authorized representatives as of the date first above written.
ASSIGNOR - ATCALL, INC. ASSIGNEE-EQUALNET CORPORATION
/s/ Khaled Alhegelan /s/ Xxxxxxxx Xxxxxx
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By: Khaled Alhegelan By: Xxxxxxxx Xxxxxx
Title: Chief Executive Officer Title: President
Acknowledged by on this 22nd day of March, 2000:
RFC Capital Corporation
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Vice President
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