ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION ("Agreement") is made effective the 13th
day of December, 2005, between EAGLE LAKE INCORPORATED, a Nevada corporation
(hereinafter "Assignor"), and PAMPLONA INCORPORATED, a Nevada corporation and a
wholly owned subsidiary of Assignor (hereinafter "Assignee").
Recitals:
A. On August 30, 2005, Assignor entered into a consolidation agreement
with RVision, LLC and Custom Federal, Inc., (the "Consolidation Agreement")
which provides for the consolidation of the companies' business operations (the
"Consolidation").
B. In connection with and as a condition precedent to the closing of
the Consolidation and related transactions, Assignor desires to assign certain
of its assets to Assignee in consideration of Assignee assuming certain
obligations of Assignor and Assignee desires to take assignment of the assets
and is willing to assume the obligations of Assignor.
Agreement:
FOR AND IN CONSIDERATION of the mutual promises and covenants set forth
herein and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, it is hereby agreed as follows:
1. Assignment of Assets. Assignor hereby sells, transfers, assigns,
conveys, sets over, and delivers to Assignee, and Assignee hereby acquires from
Assignor, all of the business and operations of Assignor and all of the assets
and properties of Assignor of every kind and description, wherever located,
real, personal or mixed, tangible or intangible, as the same existed on 12:00
midnight, Mountain Time, on December 13, 2005 (the "Transfer Date") (herein
collectively called the "Assigned Assets"), including all right, title, and
interest of Assignor in, to, and under the following, save, except, excluding
the Excluded Assets as described below in Section 2:
(a) all cash, bank deposits, investment accounts, securities
and cash equivalents;
(b) all of the assets reflected on the balance sheet of
Assignor, except those disposed of in the ordinary course of business
after the date of such balance sheet;
(c) all instruments (including promissory notes), documents,
accounts, notes, and accounts receivable;
(d) all personal and fixture property of every kind and
nature, including all goods (including inventory, equipment, and any
accessions thereto);
(e) all chattel paper (whether tangible or electronic);
(f) all deposit accounts, letter-of-credit rights (whether or
not the letter of credit is evidenced by a writing);
(g) all commercial tort claims, securities and all other
investment property, supporting obligations, any other contract rights
or rights to the payment of money, insurance claims and proceeds, and
all general intangibles (including all payment intangibles);
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(h) all raw materials, supplies, work-in-process, and other
materials included in the inventory of Assignor;
(i) all governmental permits;
(j) trademarks, trade names, service marks, and copyrights
(and all goodwill associated therewith), registered or unregistered,
and the applications for registration thereof and the patents and
applications therefor and the licenses relating to any of the
foregoing;
(k) all severance or employment agreements;
(l) all mailing lists, customer lists, subscriber lists,
processes, computer software, manuals or business procedures, trade
secrets, know-how, and other proprietary or confidential information
used in or relating to the activities of Assignor, including computer
software and programs including related procedures, files, and manuals
and all source and object codes and documentation related thereto;
(m) all of Assignor's rights, claims, offsets, or causes of
action against third parties relating to the assets, properties,
business, or operations of Assignor on the Transfer Date; and
(n) all books and records (including all data and other
information stored on discs, tapes, or other media) of Assignor
relating to the assets, properties, business, and operations of
Assignor.
2. Excluded Assets. Notwithstanding the provisions of Section 1, the
Assigned Assets shall not include the following (herein referred to as the
"Excluded Assets"):
(a) the aggregate $480,374.41 in principal and accrued but
unpaid interest on promissory notes payable by RVision, LLC (the
"RVision Notes"), plus $19,625.59 in cash;
(b) all accounting and operating records, vouchers, receipts,
delivery orders, service records, or other financial, accounting and
similar books, accounts, documents, or records of any nature;
(c) all corporate minute books, stock transfer books, and the
corporate seal of Assignor; and
(d) the name "Eagle Lake" or any related or similar trade
names, trademarks, service marks, or logos to the extent the same
incorporate the name "Eagle Lake" or any variation or derivation
thereof or any word deceptively similar thereto.
(e) all right and title to all shares of common stock or other
equity securities in Water Acquisition, Inc., including all options,
warrants or similar rights convertible or exchangeable into equity
securities of Water Acquisition, Inc., whether owned of record or
beneficially and all assets associated therewith.
3. Assumed Liabilities. Assignee hereby assumes and agrees to pay,
discharge, settle, pay, compromise, or otherwise satisfy each and every term,
covenant, obligation, and condition of any kind or nature required to be kept,
observed, performed, paid, or otherwise satisfied by the Assignor on the
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following obligations and liabilities of Assignor, direct or indirect, known or
unknown, absolute or contingent, in accordance with their respective terms and
subject to the respective conditions thereof, including the full and timely
payment of any and all amounts due thereunder:
(a) all liabilities of Assignor existing on and as of the
Transfer Date;
(b) all liabilities and obligations of Assignor to be paid or
performed after the Transfer Date under the assets conveyed in
accordance with Section 1; and
(c) all obligations of Assignor under the Consolidation
Agreement dated August 30, 2005 which arise after the Closing Date.
All of the foregoing liabilities and obligations to be assumed by Assignee
hereunder (excluding any Excluded Liability) are referred to herein as the
"Assumed Liabilities."
4. Irrevocable Purchase Offer. Assignee further hereby agrees to
deliver to each RVision Constituent Owner receiving more than 50,000 shares of
New XXX Stock at the Closing of the Consolidation Agreement, the irrevocable,
joint and several offer of the Spinoffs to purchase shares of New XXX Stock held
by such RVision Constituent Owners, as more particularly described in Section
6.21 of the Consolidation Agreement.
5. Indemnification; Hold Harmless. Assignee, its successors and
assigns, agree to and shall indemnify Assignor and the creditors of any excluded
liabilities and hold them harmless from and against any and all payments,
actions, claims, and demands whatsoever, including the legal and other costs of
investigating or defending the same, arising out of or by reason of any failure,
refusal or delay in timely and fully performing any term, covenant or condition
of this Agreement or respecting the obligations hereby assumed by it. Assignor
shall notify Assignee of any such liability, asserted liability, or claim
thereto with reasonable promptness, and Assignee or its legal representatives
shall have, at its election, the right to compromise or defend any such matter
involving asserted liability of Assignee through counsel of its own choosing, at
Assignee's expense. Such notice and opportunity to compromise or defend, if
applicable, shall not be a condition precedent to any liability of Assignee
under this indemnity. In the event that Assignee undertakes to compromise or
defend any such liability, it shall notify Assignor, in writing, promptly of
Assignee's intention to do so, and Assignor agrees to cooperate with Assignee
and its counsel in order to effectuate such compromise or defense against such
liability.
6. Governing Law. This Agreement shall be governed by and construed
under and in accordance with the laws of the state of Nevada without giving
effect to any choice or conflict of law provision or rule (whether the state of
Nevada or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the state of Nevada.
7. Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof, and no other course
of dealing, understanding, agreement, covenant, representation, or warranty,
written or oral, except as set forth herein or in the documents to be delivered
in connection with the transactions contemplated hereby shall be of any force or
effect. Any previous agreement, arrangement, understanding, or course of dealing
is expressly merged into this Agreement. No amendment or modification hereof
shall be effective until and unless the same shall have been set forth in
writing and signed by the parties hereto.
8. Notices. Any notice, demand, request, or other communication
permitted or required under this Agreement shall be in writing and shall be
deemed to have been given as of the date so delivered, if personally served; as
of the date so sent, if transmitted by facsimile and receipt is confirmed by the
facsimile operator of the recipient; as of the date so sent, if sent by
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electronic mail and receipt is acknowledged by the recipient; one day after the
date so sent, if delivered by overnight courier service; or three days after the
date so mailed, if mailed by certified mail, return receipt requested, addressed
as follows:
If to Assignor: Eagle Lake Incorporated
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
If to Assignee, to: Pamplona Incorporated
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Each party, by notice duly given in accordance herewith, may specify a different
address for the giving of any notice hereunder.
9. Costs of Suit. In the event a party commences a legal proceeding to
enforce any of the terms of this Agreement, the prevailing party in such action
shall have the right to recover reasonable attorneys' fees and costs from the
other party to be fixed by the court in the same action. The term "legal
proceedings" as used above shall be deemed to include appeals from a lower court
judgment and it shall include proceedings in the Federal Bankruptcy Court,
whether or not they are adversary proceedings or contested matters. The term
"prevailing party" as used above in reference to proceedings in the Federal
Bankruptcy Court shall be deemed to mean the prevailing party in any adversary
proceeding or contested matter, or any other actions taken by the nonbankrupt
party, that are reasonably necessary to protect its rights under the terms of
this Agreement.
10. Additional Documents. Each party shall cooperate in good faith and
with diligence and dispatch in preparing any additional or confirmatory
documents requested by the other in order to effectuate the terms and conditions
of this Agreement.
11. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of each party, its successors and assigns.
12. Counterpart Signatures. This Agreement may be executed in multiple
counterparts of like tenor, each of which shall be deemed an original but all of
which taken together will constitute one and the same instrument.
13. Construction. Any reference to any federal, state, or local statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall be
deemed illustrative and not a limitation. This Agreement shall be construed as
though all parties drafted it.
14. No Assignment. The rights and responsibilities of either party
under this Agreement may not be assigned without the prior written consent of
the other party.
15. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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16. General. Whenever the context or circumstance so requires, the
singular shall include the plural, the plural shall include the singular, the
whole shall include any part thereof, and any gender shall include other
genders. The parties agree to use their best efforts to provide all information
required hereunder to satisfy the obligations set forth herein and to otherwise
consummate the transactions contemplated hereby. Each right or remedy accorded
by the provisions of this Agreement shall be in addition to, and not in
substitution of, any rights or remedies available under now existing or
hereafter arising applicable law. All rights and remedies provided for in this
Agreement or afforded by law or equity are distinct and cumulative and may be
exercised concurrently, independently, or successively.
17. Severability. The provisions of this Agreement are severable and
should any provision hereof be void, voidable, or unenforceable under any
applicable law, such void, voidable, or unenforceable provision shall not affect
or invalidate any other provision of this Agreement, which shall continue to
govern the relative rights and duties of the parties as though the void,
voidable, or unenforceable provision was not a part hereof. In addition, it is
the intention and agreement of the parties that all of the terms and conditions
hereof be enforced to the fullest extent permitted by law.
18. Nonwaiver. The rights and remedies of the parties under this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
will operate as a waiver of such right, power, or privilege, and no single or
partial exercise of any such right, power, or privilege will preclude any other
or further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement can be discharged by
one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement.
19. Capitalized Terms. All capitalized terms used but not otherwise
defined herein, shall have the meaning given to them in the Consolidation
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed, effective as
of the day first written above.
Assignor:
EAGLE LAKE INCORPORATED
(a Nevada corporation)
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Its duly authorized officer
Assignee:
PAMPLONA INCORPORATED
(a Nevada corporation)
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Its duly authorized officer
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