Exhibit 10.32
SILICON VALLEY BANK
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT dated as of April 14, 2005 is entered into
between SILICON VALLEY BANK ("Silicon"), on the one side, and VERSO
TECHNOLOGIES, INC., PROVO PREPAID (DELAWARE) CORP., XXXXXXXX.XXX SOFTWARE, INC.
and XXXXXXX (DELAWARE) CORP., on the other side. XXXXXXX (DELAWARE) CORP. is
hereinafter referred to as the "New Borrower". Capitalized terms used but not
defined in this Agreement shall have the meanings set forth in the Loan and
Security Agreement (Exim Program) between Silicon, on the one side, and Verso
Technologies, Inc., Provo Prepaid (Delaware) Corp. (fka NACT Telecommunications,
Inc.) and Xxxxxxxx.xxx Software, Inc. (jointly and severally, the "Existing
Borrower"), on the other side, dated February 12, 2003 (as amended from time to
time, including, without limitation, that certain Amendment to Loan Documents
(Exim Program) dated March 18, 2005, the "Loan Agreement").
The parties agree as follows:
1. ASSUMPTION. New Borrower hereby assumes and agrees to pay and perform
when due all present and future indebtedness, liabilities and obligations of
Existing Borrower under, based upon, or arising out of the Loan Agreement and
any and all documents, instruments and agreements relating thereto, including
without limitation all of the "Obligations" as defined in the Loan Agreement.
Existing Borrower shall remain as an obligor with respect to all of the
Obligations, and Existing Borrower and New Borrower shall be jointly and
severally liable for all of the Obligations. All references in the Loan
Agreement, and in all related documents, to "Borrower" shall be deemed to refer,
jointly and severally, to Existing Borrower and New Borrower.
2. GRANT OF SECURITY INTEREST. Without limiting the generality of the
provisions of Section 1 above, as security for all Obligations, New Borrower
hereby grants Silicon a continuing security interest in all of New Borrower's
interest in the "Collateral" (as defined in the Loan Agreement) including,
without limitation, the types of property described below, whether now owned or
hereafter acquired and wherever located: (a) All accounts, contract rights,
chattel paper, letters of credit, documents, securities, money, and instruments,
and all other obligations now or in the future owing to New Borrower; (b) All
inventory, goods, merchandise, materials, raw materials, work in process,
finished goods, farm products, advertising, packaging and shipping materials,
supplies, and all other tangible personal property which is held for sale or
lease or furnished under contracts of service or consumed in the New Borrower's
business, and all warehouse receipts and other documents; and (c) All equipment,
including without limitation all machinery, fixtures, trade fixtures, vehicles,
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SILICON VALLEY BANK ASSUMPTION AGREEMENT
furnishings, furniture, materials, tools, machine tools, office equipment,
computers and peripheral devices, appliances, apparatus, parts, dies, and jigs;
(d) All general intangibles including, but not limited to, deposit accounts,
goodwill, names, trade names, trademarks and the goodwill of the business
symbolized thereby, trade secrets, drawings, blueprints, customer lists,
patents, patent applications, copyrights, security deposits, loan commitment
fees, federal, state and local tax refunds and claims, all rights in all
litigation presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise), and all judgments now or hereafter arising
therefrom, all claims of New Borrower against Silicon, all rights to purchase or
sell real or personal property, all rights as a licensor or licensee of any
kind, all royalties, licenses, processes, telephone numbers, proprietary
information, purchase orders, and all insurance policies and claims (including
without limitation credit, liability, property and other insurance), and all
other rights, privileges and franchises of every kind; (e) All books and
records, whether stored on computers or otherwise maintained; and (f) All
substitutions, additions and accessions to any of the foregoing, and all
products, proceeds and insurance proceeds of the foregoing, and all guaranties
of and security for the foregoing; and all books and records relating to any of
the foregoing. By the execution hereof, New Borrower hereby authorizes Silicon
to prepare and file UCC-1 Financing Statements listing New Borrower as the
debtor therein and in such form as Silicon shall specify.
3. LOANS. Borrower hereby understands, acknowledges and agrees that Loans,
if any, will be made to each Borrower based on the Eligible Receivables of each
Borrower, subject to the Maximum Credit Limit and the Overall Credit Limit set
forth in the Loan Agreement for all Loans to all Borrowers combined.
4. NEW BORROWER ADDED AS GUARANTOR TO VERSO GUARANTY. Reference is made to
that certain Continuing Guaranty dated December 14, 2001, executed by each of
Verso Technologies, Inc., Provo Prepaid (Delaware) Corp. and Xxxxxxxx.xxx
Software, Inc. in favor of Silicon (the "Verso Guaranty"). To the extent not
already having been done, New Borrower hereby acknowledges and agrees to be
added as a named "Guarantor" under the Verso Guaranty and that New Borrower
hereby unconditionally guarantees and promises to pay on demand to Silicon in
lawful money of the United States, and to perform for the benefit of Silicon,
all of the Borrower's present and future Indebtedness (as defined in the Verso
Guaranty) to Silicon, subject in all respects to the terms, conditions, waivers
and all other provisions of the Verso Guaranty.
5. EXIM BORROWER AGREEMENT. The Borrower and Silicon agree that upon
execution by all parties thereto, the Borrower Agreement of approximate even
date herewith in favor of the Export-Import Bank of the United States will
supersede that certain Borrower Agreement between the parties dated March 18,
2005.
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SILICON VALLEY BANK ASSUMPTION AGREEMENT
6. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon that
all representations and warranties set forth in the Loan Agreement, as amended
hereby, are true and correct.
7. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. This Agreement and the
other Loan Documents shall be governed by, and construed in accordance with, the
internal laws of the State of California, without regard to principles of
conflicts of law. Each of Borrower and Silicon hereby submits to the exclusive
jurisdiction of the state and Federal courts located in the County of Santa
Xxxxx, State of California. BORROWER AND SILICON EACH HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
8. INTEGRATION. This will confirm that this Agreement, the Loan Agreement
and the other Loan Documents represent the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the parties. There are no unwritten oral agreements between
the parties.
9. GENERAL PROVISIONS. This Agreement, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
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SILICON VALLEY BANK ASSUMPTION AGREEMENT
NEW BORROWER: SILICON:
XXXXXXX (DELAWARE) CORP. SILICON VALLEY BANK
BY /s/ Xxxxxx X. Xxxxxxx BY /s/ Xxxxx Xxxxxxxx
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PRESIDENT OR VICE PRESIDENT TITLE Relationship Manager
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BY /s/ Xxxxx Xxxx
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SECRETARY OR ASS'T SECRETARY
BORROWER: BORROWER:
VERSO TECHNOLOGIES, INC. PROVO PREPAID (DELAWARE) CORP.
BY /s/ Xxxxxx X. Xxxxxxx BY /s/ Xxxxxx X. Xxxxxxx
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PRESIDENT OR VICE PRESIDENT PRESIDENT OR VICE PRESIDENT
BY /s/ Xxxxx Xxxx BY /s/ Xxxxx Xxxx
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SECRETARY OR ASS'T SECRETARY SECRETARY OR ASS'T SECRETARY
BORROWER:
XXXXXXXX.XXX SOFTWARE, INC.
BY /s/ Xxxxxx X. Xxxxxxx
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PRESIDENT OR VICE PRESIDENT
BY /s/ Xxxxx Xxxx
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SECRETARY OR ASS'T SECRETARY
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SILICON VALLEY BANK ASSUMPTION AGREEMENT
CONSENT
The undersigned acknowledges that this consent to the foregoing Agreement
is not required, but the undersigned nevertheless does hereby consent to the
foregoing Agreement and to the documents and agreements referred to therein and
to all future modifications and amendments thereto, and any termination thereof,
and to any and all other present and future documents and agreements between or
among the foregoing parties. Nothing herein shall in any way limit any of the
terms or provisions of the Continuing Guaranty of the undersigned, all of which
are hereby ratified and affirmed.
GUARANTOR: GUARANTOR:
VERSO TECHNOLOGIES, INC. PROVO PREPAID (DELAWARE) CORP.
BY /s/ Xxxxxx X. Xxxxxxx BY /s/ Xxxxxx X. Xxxxxxx
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PRESIDENT OR VICE PRESIDENT PRESIDENT OR VICE PRESIDENT
BY /s/ Xxxxx Xxxx BY /s/ Xxxxx Xxxx
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SECRETARY OR ASS'T SECRETARY SECRETARY OR ASS'T SECRETARY
GUARANTOR: GUARANTOR:
XXXXXXXX.XXX SOFTWARE, INC. CLARENT CANADA LTD.
BY /s/ Xxxxxx X. Xxxxxxx BY /s/ Xxxxxx X. Xxxxxxx
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PRESIDENT OR VICE PRESIDENT PRESIDENT OR VICE PRESIDENT
BY /s/ Xxxxx Xxxx BY /s/ Xxxxx Xxxx
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SECRETARY OR ASS'T SECRETARY SECRETARY OR ASS'T SECRETARY
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