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Exhibit 10.6
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT") is
entered into as of the 12th day of May, 1998, by and among ZAI*NET Software,
Inc., a Delaware corporation ("ASSIGNOR") and Rooney Software, L.L.C., a
Delaware limited liability company ("ASSIGNEE").
W I T N E S S E T H
WHEREAS, Assignor desires to contribute, transfer, convey, assign
and deliver to Assignee, and Assignee desires to receive and accept, Assignor's
entire partnership interest, which consists of an aggregate twenty-nine percent
(29%) limited partnership interest (the "Partnership Interest"), in Zai*Net
Software, L.P., a Delaware limited partnership (the "Partnership") (the
"ASSIGNMENT");
WHEREAS, as consideration for the Assignment, Assignee desires to
issue, transfer and convey to Assignor a limited liability company interest in
Assignee.
WHEREAS, as additional consideration for the Assignment, Assignee
has agreed to assume from Assignor all of those obligations and liabilities of
Assignor arising solely with respect to the Partnership Interest (the "ASSUMED
LIABILITIES");
NOW, THEREFORE, in consideration of the premises and the
respective agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows.
1. ASSIGNMENT. The Assignor does hereby contribute, transfer, convey,
assign, and deliver to Assignee all of the rights, title and interests of the
Assignor in and to the Partnership Interest.
2. ACCEPTANCE AND ASSUMPTION. Assignee hereby receives, accepts and
acquires from Assignor the Partnership Interest and hereby covenants and agrees
to faithfully observe, keep, perform and fulfill all of the terms, covenants,
conditions and obligations required to be observed, kept, performed and
fulfilled by the Assignor arising from and with respect to the Partnership
Interest. In addition, Assignee, without any further responsibility or liability
of or recourse to Assignor or any of Assignor's stockholders, officers,
directors, employees, agents, successors or assigns, hereby absolutely and
irrevocably assumes and covenants and agrees with Assignor to pay, perform and
be liable and responsible for, any and all Assumed Liabilities.
3. TRANSFER OF LIMITED LIABILITY COMPANY INTERESTS. As consideration for
the Assignment, Assignee hereby issues, conveys, assigns and transfers a limited
liability company interest in Assignee to Assignor.
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4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties, their respective successors and permitted
assigns. None of the parties hereto may assign any of their rights or
obligations under this Agreement without the prior written consent of all
parties hereto and in accordance with the provisions of the Amended and Restated
Limited Partnership Agreement, dated the date hereof, of the Partnership.
5. GOVERNING LAW. All questions with respect to this Agreement and the
rights and liabilities of the parties shall be governed by the laws of the State
of New York, regardless of the choice of law provisions of that state or any
other jurisdiction.
6. FURTHER ASSURANCES. Each of Assignee and Assignor agrees to (a)
cooperate fully with the other party, (b) execute such further instruments,
documents and agreements, and (c) give such further written assurances as may be
reasonably requested by Assignee or Assignor, as the case may be, to evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement.
7. COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Rooney Software, L.L.C., a Delaware ZAI*NET Software, Inc., a
limited liability company Delaware corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: President Its: President
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EXHIBIT A
The "Assets" of Assignor include all of the rights, title and interest
in the following as they exist on the date hereof:
(A) ACCOUNTS, ETC. All rights of Assignor to payment for goods sold or
leased, or to be sold or leased and for services rendered or to be rendered,
whether or not such rights to payment have been earned by performance, and all
security interests in the property of others.
(B) RIGHTS UNDER CONTRACTS. All rights of Assignor under contracts,
agreements and undertakings with third parties, including, without limitation,
the material contracts identified on Schedule 3.7 to the Purchase Agreement, the
Personal Property Leases identified on Schedule to 3.17 to the Purchase
Agreement and the Real Property Leases identified on Section 3.18 to the
Purchase Agreement.
(C) EQUIPMENT. All machinery, electrical and electronic components,
equipment, furniture, office machinery, appliances, implements and other
tangible personal property of every kind and description used or useful in its
business, and all goods of like kind or type hereafter acquired by Assignor in
substitution or replacement thereof, and all additions and accessions thereto,
including without limitation, the tangible assets identified on Schedule 3.13 to
the Purchase Agreement.
(D) GENERAL INTANGIBLES. All personal property of Assignor (including
things in action ) and general intangibles of Assignor. General intangibles
includes, without limitation, all computer software, inventions, processes,
formulae, licenses, patents, patent rights, copyrights, copyright rights,
trademarks, trademark rights, service marks, service xxxx rights, trade names,
trade name rights, and other like business property rights, including to the
extent such assignment is permitted by law all permits, licenses and
entitlements necessary for operation of equipment and all applications to
acquire any such rights, on file or for which application may at any time have
been made in the past by Assignor, including without limitation, the
Intellectual Property identified on Schedule 3.8 to the Purchase Agreement.
(E) INSTRUMENTS. All drafts, checks, certificates of deposit, notes
bills of exchange and other writings which evidence a right to the payment of
money.
(F) INVENTORY. All goods owned or held by or for the account of Assignor
for sale or lease, or for furnishing under a contract of service, or as raw
materials, work in process or materials incorporated in or consumed in the
production of any of the foregoing, in each case wherever the same shall be
located.
(G) FIXTURES. All goods owned by Assignor so related to real property
owned by Assignor that Assignor shall have acquired an interest in such goods
under real estate law.
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(H) BALANCE SHEET ITEMS. All other assets and properties reflected in
the balance sheet prepared in connection with the Closing Audit (as defined in
the Purchase Agreement).
(I) PROCEEDS. All proceeds, products, additions and excisions of any and
all of the foregoing Assets and, to the extent not otherwise included, all
payments under insurance, or any indemnity, warranty or guaranty, payable by
reason of loss of damage to or otherwise with respect to any of the foregoing
Assets.
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EXHIBIT B
"ASSUMED LIABILITIES" shall mean the following:
(A) All trade accounts payable, accrued expenses and accrued liabilities
for goods delivered or to be delivered to Assignor and for services performed or
to be performed by Assignor in connection with its business, in each case to the
extent (i) reflected as liabilities on the balance sheet prepared in connection
with the Closing Audit, and (ii) incurred in connection with and for the benefit
of the business of the Assignee from and after the Closing (as defined in the
Purchase Agreement).
(B) All obligations of Assignor under contracts, agreements and
undertakings with third parties pursuant to contracts identified on Schedule 3.6
to the Purchase Agreement, under the Personal Property Leases identified on
Schedule 3.17 to the Purchase Agreement and under the Real Property Leases
identified on Schedule 3.18 to the Purchase Agreement, excluding, in each case,
any liability or obligation for a breach or default thereunder or other
liability or obligation accrued with respect to the period prior to the date
hereof, unless such liability or obligation is covered by the preceding
paragraph (A).
