EXHIBIT 10.66
ASSIGNMENT AND COLLECTION AGREEMENT
THIS ASSIGNMENT AND COLLECTION AGREEMENT (this "Agreement") is entered
into this 5th day of December, 2002, by and between NACT TELECOMMUNICATIONS,
INC., a Delaware corporation ("NACT"), and WA TELCOM PRODUCTS CO., INC., a
Delaware corporation ("WATP").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, NACT is the holder of certain receivables arising from
equipment and services sold by NACT prior to July 27, 2001, a list of which
receivables is attached hereto as EXHIBIT A (the "Receivables");
WHEREAS, pursuant to Section 2 of that certain Settlement Agreement,
dated as of November 6, 2002, between Verso Technologies, Inc. ("Verso") and
WATP, Verso agreed to cause NACT to assign and transfer the Receivables to WATP;
and
WHEREAS, in order to effectuate such assignment and set forth the
parties' understanding with respect to certain other matters related to the
Receivables, NACT and WATP have agreed to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein and other valuable consideration, the receipt and adequacy of which the
parties hereby acknowledge, NACT and WATP hereby agree as follows:
1. Assignment.
(a) NACT hereby assigns, transfers, conveys, delivers, abandons
and sets over unto WATP, its successors and assigns, all of
NACT's right, title and interest in and to the Receivables and
any and all promissory notes, instruments and other evidences
of indebtedness related thereto, including any and all
security interests in equipment relating thereto.
(b) NACT will from time to time and at all times hereafter, upon
the request of WATP, do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged and delivered all
such further acts, deeds, assignments, transfers, conveyances,
powers of attorney, and assurances as may be required in order
to more fully effectuate the purposes and intents of Section
1(a) hereof.
2. Collection of Receivables.
(a) From and after the date hereof, NACT shall use its
commercially reasonable efforts to (i) collect on behalf of
WATP, as WATP's exclusive
agent, all of the Receivables, and (ii) exercise and enforce,
as WATP's exclusive agent, WATP's rights as an owner or as a
secured party, as the case may be, with respect to the
Receivables to the extent of such rights, which shall include
the right to repossess, refurbish and resell any equipment
securing the Receivables (the "Returned Equipment"). NACT
shall not have the right to compromise, settle or adjust the
amount of the Receivables, or any installment or periodic
payment with respect thereto, without WATP's prior consent;
provided however, that if WATP fails to consent within five
(5) business days following NACT's request for such consent,
WATP shall be deemed to have consented to any such compromise,
settlement or adjustment.
(b) Within fifteen (15) days after the end of each calendar month,
NACT shall remit to WATP a portion of the Net Collection
Amount (as defined herein) determined in accordance with the
following table:
PORTION REMITTED
TO WATP NET COLLECTION AMOUNT
50% Up to $50,000
60% In excess of $50,000 to $75,000
70% In excess of $75,000
(c) For purposes hereof, "Net Collection Amount" shall mean the
amount of any and all funds collected (measured upon receipt)
by NACT in respect of the Receivables (excluding any proceeds
from the sale of any Returned Equipment) during a calendar
month less NACT's actual out-of-pocket expenses to third
parties incurred in connection with its collection efforts
during such month. NACT shall, upon request by WATP, provide
to WATP a written accounting describing in reasonable detail
NACT's collection efforts during the applicable month or
months, including, without limitation, costs and expenses
incurred by NACT in connection therewith.
(d) Upon receipt by NACT of the Returned Equipment, NACT shall use
its commercially reasonable efforts to sell the Returned
Equipment, and within fifteen (15) days after the end of each
calendar month, NACT shall remit to WATP an amount equal to
50% of the cost of the Returned Equipment sold during such
calendar month, where the cost of such Returned Equipment will
be as set forth on a cost schedule to be agreed upon by NACT
and WATP and attached hereto as EXHIBIT B within thirty (30)
days of the date hereof.
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3. Miscellaneous.
(a) All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed
given when delivered personally, mailed by certified mail
(postage pre-paid and return receipt requested), sent by
overnight courier service or faxed (transmission confirmed),
or otherwise actually received. All such notices and other
communications shall be delivered, mailed, couriered or faxed,
(i) if to WATP, at Resurgens Plaza, Suite 2210, 000 Xxxx Xxxxx
Xxxxx Xxxx, Xxxxxxx, XX (Facsimile No.: 404-233-2280),
Attention: Xxxxxxx X. Xxxx, and (ii) if to NACT, at 000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (Facsimile No.:
678-589-3750), Attention: Xxxxxx X. Xxxx, or at such other
address as WATP or Verso may designate in writing to the other
party.
(b) This Agreement shall be governed and construed in accordance
with the laws of the State of Georgia (without giving effect
to choice of law principles thereof). Each of the parties
hereto irrevocably agrees that any legal action or proceeding
with respect to this Agreement or the transactions
contemplated hereby, or for recognition and enforcement of any
judgment in respect hereof, brought by the other party hereto
or any of its successors or assigns shall be brought and
determined in the United States Bankruptcy Court for the
Northern District of Illinois, Eastern Division (the "Court"),
and each party hereby irrevocably submits with respect to any
such action or such proceeding for itself and in respect of
its property, generally and unconditionally, to the exclusive
jurisdiction of the Court.
(c) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) This Agreement may be amended only by a written instrument
signed by all of the parties hereto. No failure to exercise
and no delay in exercising, on the part of any party, any
right, remedy, power or privilege hereunder, shall operate as
a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges
provided by law.
(e) All rights, covenants and agreements of the parties contained
in this Agreement shall be binding upon and inure to the
benefit of their respective successors and assigns (including,
without limitation, any trustees or liquidators). This
Agreement, and the rights and obligations
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hereunder, may not be assigned by either party without the
prior written consent of the other party.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first written above:
WATP:
WA TELCOM PRODUCTS CO., INC.
By: /s/ W. Xxx Xxxxx
-------------------------------------
Name: W. Xxx Xxxxx
-----------------------------------
Title: Secretary
----------------------------------
NACT:
NACT TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
RECEIVABLES
ACS Telecom, Inc.
Ariana Telecommunications, Inc.
Dime Communications, Inc.
JD Services, Inc.
JFJ Communications, Inc.
Leading Edge Broadband Services, Inc.
Los Amigos Telecom, Inc.
Money Travel Services, Inc.
Nexstar Communications, Inc.
Orion Telecommunications Corporation (two notes, #1 and #2)
Progresam S.A.
Thai American Telecommunication, Inc.
Total Call International, Inc.
U.S. Satellite Telecommunications, Corp.
Voice Vision International, Inc.
UDC Telecommunications, Inc.
Xenon Communications, Inc.
Y&B Services Corp.
EXHIBIT B
COST SCHEDULE OF RETURNED EQUIPMENT
NACT TELECOMMUNICATIONS, INC.
STX AND MCU COST SUMMARY
STX - NEG 48 SYSTEM STX - 120 VOLT SYSTEM
Bay and main assembly 13,848.11 Bay and main assembly 13,492.65
T-1 boards 933.32 per board T-1 boards 933.32 per board
DSP boards 1,044.38 per board DSP Boards 1,044.38 per board
E1/ISDN/SS7 boards E1/ISDN/SS7 boards 915.39
1 board 915.39 1 board 915.39
2 boards 1,830.78 2 boards 1,830.78
3 boards 2,746.17 3 boards 2,746.17
4 boards 3,661.56 4 boards 3,661.56
5 boards 4,576.95 5 boards 4,576.95
6 boards 5,492.34 6 boards 5,492.34
7 boards 6,407.73 7 boards 6,407.73
8 boards 7,323.12 8 boards 7,323.12
9 boards 8,238.51 9 boards 8,238.51
10 boards 9,153.90 10 boards 9,153.90
Neg 48 to 120V inverter option 2,529.18 Neg 48 to 120V inverter option N/A
18 GIG HD option 189.11 18 GIG HD option 189.11
RAID System option 13,663.00 RAID System option 13,663.00
UPS Option N/A UPS Option 1,136.00
MCU - NEG 48 SYSTEM MCU 120 VOLT SYSTEM
Bay and main assembly 6,623.88 Bay and main assembly 5,945.19
RAID option 13,663.00 RAID option 13,663.00
2nd RAID system option 11,345.00 2nd RAID system option 11,345.00
Spare Turbo CPU option 1,633.61 Spare Turbo CPU option 1,633.61
Neg 48 to 120V inverter option 2,529.18 Neg 48 to 120V inverter option N/A
UPS option N/A UPS option 1,136.00
Spare power tray option 1,012.63 Spare power tray option 368.18
Modem option 415.00 per modem Modem option 415.00 per modem
