PURCHASE AND ASSIGNMENT OF CLAIM
This PURCHASE AND ASSIGNMENT AGREEMENT (the "Agreement") is made and
entered into as of this 28th day of April, 2000 by FOOTHILL CAPITAL CORPORATION,
acalifornia corporation, its successors and assigns, with offices located at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Assignor"), TRANCHE B, INC., a Delaware corporation, its
successors and assigns, with offices at c/o Meridian Capital Group, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Assignee"), and USCI, INC., a Delaware
corporation, with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("Issuer").
1. Assignor, for good and valuable consideration (as more fully set forth
below), the sufficiency of which is hereby acknowledged, does hereby absolutely
and unconditionally sell, transfer and assign, without recourse (except as
otherwise set forth herein), unto Assignee all rights, title and interest in and
to the claim(s) of Assignor, including any and all security interests, (the
"Claim") against AMERITEL COMMUNICATIONS, INC. and each of its affiliates and
guarantors, all of which are listed on Schedule I hereto (together with its
affiliates and guarantors, as the context requires, "Ameritel"), together with
Assignor's right to receive all cash, instruments or other property issued or
issuable to Assignor in connection with the proceedings in the United States
Bankruptcy Court for the Southern District of New York ("Bankruptcy Court"),
Case No. 99-11081-JHG ("Bankruptcy Proceedings") (including without limitation
accrued unpaid interest and any fees) or other distributions and to exercise and
enforce all rights and remedies in respect of the Claim from and after the date
hereof. The Claim assigned hereunder shall consist without limitation of all
right, title and interest related to the following:
a. all rights, privileges, powers, causes of action and claims
(including "claims" as that term is defined in Section 101(5) of the
Bankruptcy Code) held by Assignor arising under or in connection with that
certain Amended and Restated Loan and Security Agreement by and between
Assignor, as Lender, and Ameritel, as Borrower, dated as of April 14, 1999
(as amended, the "Amended Loan Agreement") and all other documents executed
in connection therewith and as set forth on Schedule 2 hereto (together
with the Loan Agreement, collectively, the "Loan Documents");
b. all, rights, privileges, powers, causes of action and claims
relating to that certain Participation Agreement by and among Assignor and
the Participant (as defined therein);
c. any and all Claims held by Assignor with respect to the Loan
Documents and the transactions contemplated thereby against any agent,
attorney, including without limitation any claims under any law governing
the sale or purchase of securities, but exclusive of Assignor's rights and
claims pursuant to paragraph 9 of this Agreement;
d. all right, title and interest to funds held in any lockbox or other
account established by Assignor related to the Loan Documents, including
without limitation funds restricted from borrowing and funds received for
the period beginning on April 21,2000 through the date April 28, 2000,
which based on the knowledge of the parties hereto, is in the aggregate
amount of $104,724.72 plus any amounts received or cleared after April 28,
2000;
e. all right, title and interest related to and arising out of Assignor's
foreclosure against U.S. Communications, Inc.; and
f. all cash, securities or other property distributed or received on
account of, or exchanged in return for, any of the foregoing.
2. Assignor represents and warrants that the amount of the Claim is, in
its entirety, in the amount of approximately $8,765,422.27 (the
"Indebtedness"); that this Agreement has been duly authorized,
executed and delivered by Assignor and Assignor has the requisite
power and authority to execute and deliver this Agreement; that this
Agreement constitutes the valid, legal and binding agreement
ofAssigno'r, enforceable against Assignor in accordance with its
terms; that no payment has been received by Assignor, or by any third
party on behalf of Assignor, in full or partial satisfaction of the
Claim; that Assignor has not previously sold, assigned or pledged the
Claim to any third party in whole or in part; that Assignor owns and
has sole title to, and the beneficial ownership of, the Claim free and
clear of any and all liens, security interests or encumbrances of any
kind or nature whatsoever; that Assignor is not aware of any
legitimate claim or right ofsetoff, reduction, impairment, avoidance,
disallowance, subordination or preference actions, whether on
contractual or equitable grounds, and that there are no counterclaims,
legal or equitable defenses or rights of recoupment or offsets that
have been asserted by or on behalf of Ameritel or any other party to
reduce the amount of the Claim or affect its validity or
enforceability; Schedule 2 contains a list of all material documents
known to Assignor that evidence the Claim; Assignor has delivered to
Assignee true, correct and complete copies of each such document;
except for that certain First Amendment to Amended and Restated Loan
Agreement dated as of May 12, 1999 and those certain Waiver Agreements
dated as of July 20, 1999 and September 9, 1999, Assignor has not
executed or consented to any document that amends, alters, modifies or
otherwise changes the Loan Documents or the Claim and is, to the best
of its knowledge, not in possession of or aware of any other documents
that would materially or adversely affect the Claim or change or
modify the terms thereof except for documents listed on Schedule 2
without limiting the generality of the foregoing, to Assignor's best
knowledge there is no document, consent, agreement, waiver or other
act by Assignor, that would cause the Loan Documents not to be
enforceable by Assignee in accordance with their respective terms; the
credit information contained in Schedule 3 accurately states and
represents (i) the current outstanding principal amount included in
the Indebtedness on the date hereof, (ii) accrued but unpaid interest
included in the Indebtedness up to but excluding the date hereof,
(iii) the principal amount of the unfunded letter of credit commitment
as of the date hereof, (iv) the amount of the Carve-Out as defined
below, (v) the amount of fees and other charges payable under the
Amended Loan Agreement, and (vi) the amount of attorneys fees and
expenses of Assignor payable by Ameritel under the terms of the
Amended Loan Agreement; to the best of Assignor's knowledge, the
execution, delivery and performance of this Agreement and all other
instruments and documents executed and delivered by Assignor in
connection herewith are not in contravention of any law; the
execution, delivery and performance of this Agreement and all other
instruments and documents executed and delivered by Assignor in
connection herewith are not in contravention of any order or agreement
(including without limitation the Loan Documents) by which Assignor is
bound or to which it or its assets (including the transferred rights
constituting the Claim) is subject; Assignor has not breached any of
its obligations under the Loan Documents and no amounts are due or
owing, nor are there any obligations remaining to be performed
thereunder by Assignor, other than as reflected in Schedule 3 hereto;
no bar date has been set in the Bankruptcy Proceedings and Assignor
has not filed a Proof of Claim with respect to the Claim; and no
warrants have been issued'to Assignor in accordance with the terms and
provisions of the Amended Loan Agreement.
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3. Assignee represents and warrants it has been duly authorized and has the
requisite power to execute and accept delivery of this Agreement; that this
Agreement constitutes the valid, legal and binding agreement of Assignee,
enforceable against Assignee in accordance with its terms; and the execution,
delivery and performance of this Agreement and all other instruments and
documents executed and delivered by Assignee in connection herewith are not in
contravention of any law, order or agreement by which Assignee is bound or to
which it or its assets (including the transferred rights constituting the Claim)
is subject.
4. Assignee agrees that it shall assume all liabilities ofAssignor in
connection with the Claim and the Bankruptcy Proceedings, arising from facts and
circumstances relating to the period following the date hereof, including,
without limitation, (i) the payment of any court-ordered fees (the "Carve-Out")
to professionals of Ameritel in excess of $25,000, or to the professionals of
the Official Committee of Unsecured Creditors (the "Committee") in excess of
$85,000, provided, however, that in each case Assignee has consented to any
excess of such fees, and (ii) all of Assignor's Obligations under the Amended
Loan Agreement, (except as otherwise set forth herein) (collectively, the
"Assumed Obligations"). Notwithstanding the foregoing. Assignee shall not assume
or accept responsibility and liability for Obligations ofAssignor arising out of
or in connection with:
a. any action by any Person (excluding Assignee, Issuer, or any of
their affiliates, subsidiaries, officers, directors or other related
personnel, or any of their respective successors or assigns) for a breach
by Assignor of its representations, warranties and covenants contained the
Loan Documents or any other lender liability or other similar action
arising from acts and omissions occurring prior to the date hereof;
b. a breach by Assignor of its representations, warranties and
covenants contained in this Agreement;
c. the Carve-Out, up to $25,000 for professionals for Ameritel and up
to $85,000 for professionals of the Committee;
d. any liability ofAssignor to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Capital;
e. any liability for the unfunded commitment on the letter of credit
issued in favor of AT&T Wireless Services or any other letter of credit
issued under the Loan Documents, which letters of credit are issued and
outstanding prior to the date hereof; and
f. Assignor's bad faith, gross negligence or willful misconduct prior
to the date hereof (collectively, the "Retained Obligations").
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5. a. (1) As consideration for the assignment of the Claim, Issuer, on
behalf of Assignee, hereby agrees to irrevocably transfer to Assignor, as of the
date hereof, four million (4,000,000) shares of common stock of Issuer (the
"Initial Share Holding"), evidenced by a stock certificate (with appropriate
restrictions and restrictive legends affixed thereto) issued by Issuer and
delivered to Assignor by Issuer's duly appointed stock transfer agent, not later
than ten (10) business days from the date hereof. Issuer and Assignee represent
and warrant that the Initial Share Holding and any shares issued thereafter to
Assignor shall be validly issued, fully paid and nonassessable. On the
eighteenth month anniversary of the date hereof (the "Subsequent Transfer
Date"), Issuer, on behalf of Assignee, will transfer to Assignor such additional
number of shares of common stock of Assignee (the "Subsequent Share
Distribution") necessary to make the aggregate fair market value of shares in
the Initial Share Holding equal four million dollars ($4,000,000) (the "Target
Share Value"), based on the weighted average formula set forth herein. In
determining the number of shares in the Subsequent Share Distribution, if any,
on the Subsequent Transfer Date Issuer shall average the fifteen (15) highest,
daily, ending values of the common stock for the trading period between the
Effective Date (as defined below) and the Subsequent Transfer Date to obtain the
"Weighted Average Value." In the event the Weighted Average Value (A) is less
than $ 1.00 per share, regardless of the value of the shares of common stock on
the Subsequent Transfer Date, the Subsequent Share Distribution (B) shall be
computed as follows:
B = $4.000.000 - (4.000.000 shares x A)
A
(2) If the Weighted Average Value is less than $.50 per share.
Issuer shall use the value of $.50 for the Weighted Average Value in
determining the number of shares in the Subsequent Share Distribution.
(3) If the Weighted Average Value exceeds $ 1.00 per share.
Issuer shall not be required to transfer any additional shares to
Assignor, regardless of the fair market value of the shares of common
stock on the Subsequent Transfer Date.
(4) If Assignor sells a portion of the Initial Share Holdings
prior to the Subsequent Transfer Date, the Target Share Value shall be
reduced by the same percentage as such sold shares comprise of the
Initial Share Holdings. By way of example only, if Assignor sells
1,000,000 shares, or twenty-five percent (25%) of the Initial Share
Holdings prior to the Subsequent Transfer Date, then, on the
Subsequent Transfer Date, the Target Share Value shall also be reduced
by 25% and Issuer shall transfer to Assignor that number of additional
shares of common stock of Issuer that is necessary to give the
aggregate number shares of then held by Assignor a fair market value
of $3,000,000. In such an event, the formula for determining the
Subsequent Share Distribution (B), if any, using the same Weighted
Average Value (A) discussed above and regardless of the fair market
value of the shares on the Subsequent Transfer Date, shall be:
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B = $3.000.000 - (3.000.000 shares x A)
A
b. Issuer shall prepare and file a registration statement on Form
S-1 (or such other form as Assignee is eligible to use) registering
the resale of all of the shares in the Initial Share Holdings from
time to time pursuant to Rule 415 under the Securities Act of 1933 (as
amended, the "Securities Act") in a timely manner such that such
registration statement shall become effective in accordance with the
terms hereof. Following the filing of such registration statement.
Issuer shall use its best efforts to cause such registration statement
to become effective no later than the latter of(i) one hundred eighty
(180) days from the date hereof, or (ii) November 1,2000 (the
"Effective Date"). In addition, within ten (10) business days after
the Effective Date, Issuer shall issue, and shall cause its duly
appointed stock transfer agent to deliver to Assignor, in exchange for
any existing certificates, a stock certificate for the Initial Share
Holding with all transfer restrictions and restrictive legends
removed. Issuer shall thereafter take all actions necessary, including
the filing of amendments thereto or the filing of a Form 8-K to report
material events for incorporation by reference therein, to maintain
effectiveness of such registration statement so long as any shares are
held by Assignor. Such registration statement shall list Assignor as
"selling shareholder" therein and shall be amended as necessary from
time-to-time to reflect transfers of the shares in the Initial Share
Holdings (or such other shares subsequently transferred to Assignor
pursuant to this Agreement) by Assignor.
c. The registration requirements set forth in paragraph 5(b)
hereof shall also apply to the shares, if any, issued by Issuer as
part of the Subsequent Share Distribution, except that the Effective
Date for such shares shall be one-hundred eighty (180) days after the
Subsequent Transfer Date.
d. In the event Issuer, at any time, (1) fails to issue or cause
to be delivered stock certificates in accordance with paragraph 5 (a)
hereof, (2) fails to issue or cause to be delivered stock certificates
in accordance with paragraph 5(b) hereof, or (3) violates any other
provision of this paragraph 5. Issuer shall be deemed to be in default
of this Agreement. Upon such default, that certain General Continuing
Guaranty dated as of June 5, 1998, and that certain Guarantor's
Security Agreement dated as of June 5, 1998, and that certain First
Amendment and Reaffirmation of General Continuing Guaranty dated as of
April 14, 1999, and that certain First Amendment to Guarantor's
Security Agreement dated as of April 14, 1999 (collectively, the
"Guaranty Documents"), all in favor of Assignor, shall be reinstated
in their entirety, with all benefits and obligations thereof vesting
in Assignor.
Notwithstanding the foregoing, in the event Issuer cures any default
hereunder within three (3) business days from the date of such default. Issuer's
obligations under the Guaranty Documents shall be terminated, so long as no
other defaults have occurred and are continuing.
e. As to the registration of the shares in the Initial Share Holdings
and the registration of the shares in the Subsequent Share Distribution, if
any, pursuant to paragraph 5(b) and (c). Issuer shall pay all costs, fees
and expenses incident to the performance and compliance by Issuer with
paragraph 5(b) and (c). including, without limitation, (1) all registration
and filing fees; (2) all printing expenses; (3) all fees and disbursements
of counsel and independent public accountants for Issuer; (4) all blue sky
fees and expenses (including fees and expenses of counsel in connection
with blue sky surveys); (5) all transfer taxes; (6) the entire expense of
any audits incident to such registration required by the rules and
regulations of the Securities and Exchange Commission; (7) the cost of
distributing prospectuses in preliminary and final form as well as any
supplements thereto; and (8) the fees and expenses of one counsel for the
Assignor in connection with the shares being registered pursuant to
paragraph 5(b) and (c) hereof. Assignor shall bear its proportionate cost
of all underwriting fees and commissions, if any, relating to such
registration, such proportionate amount to be equal to a fraction, the
numerator of which is the amount of shares being registered by Assignor and
the denominator of which is the aggregate number of shares being registered
by any and all other holders of Issuer's shares participating in such
registration.
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f. Indemnification.
(1) Issuer hereby agrees to indemnify and hold harmless Assignor
and each of such Assignor's partners, employees, affiliates, officers
and directors and each person who controls Assignor within the meaning
of the Securities Act-and any underwriter (as defined in the
Securities Act) for Assignor, and any person who controls such
underwriter within the meaning of the Securities Act, from and
against, arid agrees to reimburse promptly Assignor, its partners,
employees, affiliates, officers, directors and controlling persons and
each such underwriter and controlling person of such underwriter with
respect to, any and all claims, actions (actual or threatened),
demands, losses, damages, liabilities, costs and expenses to which
Assignor, its partners, employees, affiliates, officers, directors or
controlling persons, or any such underwriter or controlling person of
such underwriter may become subject under the Securities Act or
otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained
therein, or any amendment or supplement thereto, or arising out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that Issuer will not be
liable in any such case to the extent that any such claim, action,
demand, loss, damage, liability, cost or expense is caused by an
untrue statement or alleged untrue statement or omission or alleged
omission so made in strict conformity with written information
furnished by Assignor, such underwriter or such controlling person (as
the case may be) specifically for use in the preparation thereof.
(2) Assignor hereby agrees to indemnify and hold harmless Issuer,
its partners, employees, affiliates, officers and directors and each
person who controls Issuer within the meaning of the Securities Act
and any underwriter (as defined in the Securities Act) for Issuer and
any person who controls such underwriter, with in the meaning of the
Securities Act, from and against, and agrees to reimburse Issuer, its
partners, employees, affiliates, officers, directors and controlling
persons and each such underwriter and controlling person of such
underwriter with respect to, any and all claims, actions (actual or
threatened), demands, losses, damages, liabilities, costs and expenses
to which Issuer, its officers, directors, or such controlling persons
and each such underwritermay become subject under the Securities Act
or otherwise, insofar as such claims, actions, demands, losses,
damages, liabilities, costs or expenses arise out of or are based upon
any untrue or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein, or
any amendment or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was so made in reliance upon and in strict conformity
with written information furnished by Assignor specifically for use in
the preparation thereof. Notwithstanding any provision to the contrary
contained herein, the aggregate liability of Assignor pursuant to this
paragraph 5(f)(2) shall be limited to an amount equal to the gross
proceeds received by Assignor from the offering of shares registered
pursuant to this paragraph 5.
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(3) Promptly after receipt by a party indemnified pursuant to the
provisions of subparagraph (1) or (2) of this paragraph 5(f) of notice
of the commencement of any action involving the subject matter of the
foregoing indemnity provisions, such indemnified party will, if a
claim therefor is to be made against the indemnifying party in writing
pursuant to the provisions of subparagraph (Dor (2). notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to an indemnified party otherwise than under this
paragraph 5 and shall not relieve the indemnifying party from
liability under this paragraph 5. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, jointly
with any other indemnifying parties similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the
right to select separate counsel (in which case the indemnifying party
shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties). Upon the permitted
assumption by the indemnifying party of the defense of such action,
and approval by the indemnified party of counsel, which approval will
not be unreasonably withheld, the indemnifying party shall not be
liable to such indemnified party under subparagraph ( I ) or (2) for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof (other than reasonable
costs of investigation) unless (A) the indemnified party shall have
employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding
sentence, (B) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time, (C) the indemnifying party and its
counsel do not actively and vigorously pursue the defense of such
action, or (D) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party. No indemnifying party shall be liable to an indemnified party
for any settlement of any action or claim without the consent of the
indemnifying party and no indemnifying party may unreasonably withhold
its consent to any such settlement. No indemnifying party will consent
to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability
with respect to such claim or litigation.
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(4) If the indemnification provided for in subparagraph (1) or
(2) of this paragraph 5(f) is held by a court of competent
jurisdiction to be unavailable to a party to be indemnified with
respect to any claims, actions, demands, losses, damages, liabilities,
costs or expenses referred to therein, then each indemnifying party
under any such subsection, in lieu of indemnifying such indemnified
party thereunder, hereby agrees to contribute to the amount paid or
payable by such indemnified party as a result of such claims, actions,
demands, losses, damages, liabilities, costs or expenses in such
proportion as is appropriate to reflect the relative benefits received
by such indemnifying party on the one hand and the indemnified party
on the other from the related offering. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such
amount payable by such indemnified person in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions which resulted in such claims, actions, demands, losses,
damages, liabilities, costs or expenses, as well as any other relevant
equitable considerations. The relative benefits received by an
indemnifying party on the one hand and an indemnified party on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
each party bear to the total net proceeds from the offering received
by each other party and, with respect to an underwriter, the total
underwriting discounts and commissions received by such underwriter,
and in each case as set forth in the table on the cover page of the
related prospectus. The relative fault of the indemnifying party and
of the indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
(5) No person guilty of fraudulent misrepresentation (within the
meaning of Section I l(f) of the Securities Act) shall be entitled to
contribution hereunder from any person who was not guilty of such
fraudulent misrepresentation.
(6) In addition to its other obligations under this paragraph
5(f). Issuer further agrees to reimburse promptly Assignor (and
Assignor's controlling persons, officers, directors, and underwriters
(and controlling persons of such underwriters)) on a monthly basis for
all reasonable legal fees, expenses and other fees and expenses
incurred by Assignor in connection with investigating or defending any
claim, action, investigation, inquiry or other proceeding arising out
of or based upon any statement or omission, or any alleged statement
or admission, described in subparagraph (1) of this paragraph 5(f).
notwithstanding the possibility that such payments might later be held
to be improper. To the extent that any payment is ultimately held to
be improper, each person receiving such payment shall promptly refund
such payment.
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(7) In addition to its other obligations under this paragraph
5(f). Assignor further agrees to reimburse promptly Issuer (and
Issuer's controlling persons, officers, directors and underwriters
(and controlling persons of such underwriters)) on a monthly basis for
all reasonable legal fees, expenses and other fees and expenses
incurred by Issuer in connection with investigating or defending any
claim, action, investigation, inquiry or other proceeding arising out
of or based upon any statement or omission, or any alleged statement
or admission, described in subparagraph (2) of this paragraph 5(f).
notwithstanding the possibility that such payments might later be held
to be improper. To the extent that any payment is ultimately held to
be improper, each person receiving such payment shall promptly refund
such payment.
6. Assignee agrees to indemnify Assignor and hold Assignor harmless from
any liability, cost, penalties or expenses (including reasonable attorneys' fees
and disbursements) for any amounts owed by Ameritel to any taxing authority, to
extent such amounts are chargeable to Ameritel's secured lender.
7. Assignor acknowledges that Assignee currently may possess and hereafter
may come into possession of certain information that may be material to its
decision to sell, hold or purchase the Claim (the "Assignee Excluded
Information"); Assignor, independently and without reliance upon Assignee and
based on such documents and information as Assignor has deemed appropriate, has
made its own credit analysis and decision to enter into this Agreement and to
sell the Claim; and Assignor hereby waives and releases any claims that Assignor
might now or hereafter have against Assignee or any of its affiliates and their
respective directors, officers, employees, agents, representatives, partners,
controlling persons, successors and assigns, whether pursuant to applicable
bankruptcy law, securities law or otherwise, with respect to the non-disclosure
of Assignee Excluded Information Assignor further represents that it is not and
never has been an "insider" of Ameritel.
8. Assignee acknowledges that Assignor currently may possess and hereafter
may come into possession of certain information that may be material to its
decision to sell, hold or purchase the Claim (the "Assignor Excluded
Information"); Assignee, independently and without reliance upon Assignor and
based on such documents and information as Assignee has deemed appropriate, has
made its own credit analysis and decision to enter into this Agreement and to
purchase the Claim; and Assignee hereby waives and releases any claims that
Assignee might now or hereafter have against Assignor or any of its affiliates
and their respective directors, officers, employees, agents, representatives,
partners, controlling persons, successors and assigns, whether pursuant to
applicable bankruptcy law, securities law or otherwise, with respect to the
non-disclosure of Assignor Excluded Information.
9. Notwithstandinganything otherwise contained herein, the undersigned
parties hereby agree that Assignor shall retain, and Assignee shall not take an
assignment of, any and all claims that Assignor may have against any and all
public accountants or other independent financial advisors of Ameritel,
including without limitation claims for accountant liability and other related
or similar claims related to work performed prior to the date hereof.
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10. In the event the Claim is ultimately allowed in the Bankruptcy
Proceedings in an amount greater than the amount set forth herein. Assignee is
hereby deemed to have purchased, and Assignor is hereby deemed to have sold,
such additional amount for the same consideration paid herein.
11. In the event all or any part of the Claim is disallowed, subordinated,
objected to or otherwise impaired, in whole or in part, in the Bankruptcy
Proceedings for any reason whatsoever, Assignor agrees to cooperate or assist in
the defense of such claim and that Assignee shall have the right to defend the
allowability of the Claim on Assignor's behalf; provided, however, that all
costs and expenses incurred in such defense shall be paid by Assignee, unless
such claim is related to a misrepresentation made by Assignor hereunder.
12. Assignor agrees that in the event Assignor shall receive any payments
or distributions and any notices with respect to the Claim after the date
hereof, Assignor agrees to accept the same as Assignee's agent and to hold same
in trust on behalf of and for the benefit of Assignee, and shall promptly remit
the same forthwith to Assignee in the same form received, within two (2)
business days in the case of cash and within five (5) business days in the case
of securities, which are in good and deliverable form, with the endorsement of
Assignor when necessary or appropriate.
13. Assignor hereby irrevocably appoints Assignee as its true and lawful
attorney-in-fact and authorizes Assignee to act in Assignor's name, place and
stead, to file a Proof of Claim or to demand, ▇▇▇ for, compromise and recover
all such sums of money which now are, or may hereafter become due and payable
for, or on account of the Claim herein assigned. Assignor grants unto Assignee
full authority to take all actions necessary to enforce the Claim and Assignor's
rights thereunder pursuant to this Agreement. Assignor agrees that the powers
granted by this paragraph 13 are discretionary in nature and exercisable at the
sole option of Assignee. Assignor shall have no obligation to take any
affirmative action to prove or defend the Claim's validity or amount in the
Bankruptcy Proceedings. Assignor agrees to execute, acknowledge and deliver all
such further certificates, instruments and other documents, and to take all such
further action as may be necessary or appropriate to effect assignment of the
Claim and all interests therein to Assignee, to cooperate with and assist
Assignee in enforcing the Claim and to otherwise effectuate the intent of this
Agreement Assignor agrees that Assignee may sell, transfer or assign the Claim
together with all right, title and interest of Assignee in and to this
Agreement.
14. Assignor shall be solely responsible for professional fees and similar
costs or expenses payable by or reimbursable to Assignor relating to the Loan
Documents or the Bankruptcy Proceedings that are incurred for services rendered
by professionals retained by Assignor on or before the date hereof. Assignee
shall be responsible for all professional fees and similar costs or expenses
payable by or reimbursable to Assignee relating to the Loan Documents or the
Bankruptcy Proceedings that are incurred for services rendered by professionals
retained by Assignee after the date hereof. Each party shall bear its own fees,
costs and expenses related to the transaction hereunder. Notwithstanding the
foregoing, Assignor and Assignee shall also be responsible for all professional
fees and similar costs or expenses payable as part of the Carve-Out, in
accordance with the terms hereof.
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15. Assignor agrees to indemnify Assignee against and hold Assignee
harmless from any liability, cost, loss, damage or expense (including reasonable
attorneys' fees and disbursements) incurred by Assignee and owed to any Person
other than Ameritel, Issuer, any of their affiliates, subsidiaries, officers,
directors or other related personnel, or any of their respective successor or
assigns, resulting from or arising out of (i) the breach of any of Assignor's
representations, warranties, agreements or covenants contained herein or in the
Loan Documents, (ii) the Retained Obligations, or (iii) Assignor's gross
negligence or wilful misconduct.
16. In the event any claim or cause of action is asserted or brought
against Assignor pursuant to paragraphs 4.5.6 or 15 of this Agreement, Assignor
reserves the right to initiate its own defense, prosecute applicable
counterclaims or cross-claims, appoint counsel, negotiate a settlement or
compromise or otherwise defend against such claim or cause of action in any
manner that Assignor, in the exercise of its own business judgment, deems
appropriate, and will not be bound by any settlement or other resolution of such
claim or cause of action entered into or ordered upon Assignee or Issuer without
Assignor's prior written consent.
17. Assignee agrees to indemnify Assignor against and hold Assignor
harmless from any Expense incurred by Assignor resulting from or arising out of
(i) the breach of any of Assignee's representations, warranties, agreements or
covenants contained herein, (ii) the Assumed Obligations, or (iii) Assignee's
gross negligence or wilful misconduct.
18. All representationsand warranties contained herein shall survive the
execution and delivery of this Agreement and the purchase and sale of the Claim.
19. This Agreement shall be construed and the obligations ofthe parties
hereunder shall be determined in accordance with the laws ofthe State of
California without reference to any conflicts of laws provisions thereof.
Notwithstanding the foregoing. Assignee and Assignor agree that any legal action
or proceeding arising out of or relating to this Agreement may be brought in the
courts ofthe State of New York, the courts ofthe United States of America
located in the City of New York, Borough of Manhattan, or in any other court
having jurisdiction with respect thereto, and Assignee and Assignor irrevocably
consent to service of process in any said action or proceeding in any of such
courts by the mailing of copies thereof, postage prepaid, to Assignee or
Assignor, as the case may be, at Assignee's or Assignor's address set forth
herein, as the case may be, such service to become effective ten (10) days after
such mailing.
20. The documents attached hereto as Exhibit "A" and incorporated herein by
this reference shall be filed by Assignee with the Banlo-uptcy Court as evidence
of this transfer. The undersigned stipulate that an order may be entered
recognizing this assignment of claim as an unconditional assignment and Assignee
herein as the valid owner of the Claim, although such an order is not required
either by the United States Bankruptcy Code or by the Federal Rules of
Bankruptcy Procedure.
21. This Agreement may be executed in several counterparts, each of which
shall constitute an original and all of which together shall constitute one and
the same instrument and agreement.
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22. This Agreement, together with the Schedules and attachments, sets forth
the entire agreement between Assignee, Assignor and Issuer relating to the
Claim, supersedes all prior communications and understandings of any nature and
may not be supplemented or altered orally. Any amendments hereto shall be in
writing and signed by each party.
23. Each notice or other communication hereunder shall be in writing, shall
be sent by messenger, by telecopy or facsimile transmission or by express mail,
shall be deemed given when sent to the designated address set forth in Schedule
4 hereto (or such other address as Assignee or Assignor may designate from time
to time to the other party hereto).
24. Each party shall execute and deliver all further documents or
instruments reasonably requested by the other party in order to effect the
intent of this Agreement and obtain the full benefit of this Agreement,
including without limitation with respect to the filing of any documentation
necessary to convey the security interests related to the Claims, such as any
necessary UCC-3 assignments.
25. This Agreement shall be binding on, and inure to the benefit of, the
parties hereto and their successors and assigns. With due notice to Assignor,
all rights hereunder may be freely transferred, in whole or in part, by Assignee
without the consent of Assignor; provided, however, that Assignee covenants and
agrees with Assignor not to transfer the Claims in violation of the Loan
Documents.
26. If any provision of this Agreement shall for any reason be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision hereof, but this Agreement shall be construed as if such
invalid or unenforceable provision had never been contained herein.
27. The parties hereto agree that they shall not disclose to any person the
terms or conditions of this Agreement or any document executed or delivered in
connection herewith, except that (i) each party may disclose the same if
compelled by legal process, by an order, judgment or decree of a court or other
governmental authority of competent jurisdiction, (ii) each party may disclose
the same to its own employees, representatives, attorneys, accountants or
investors on the condition that each party remains responsible for the
recipients of such disclosure keeping the same confidential, and (iii) Assignee
may disclose the same to any prospective purchaser or transferee of the claim.
28. The parties hereto acknowledge and agree that in no event shall any of
their respective partners, officers, directors, shareholders, employees, agents
or investment managers of each of them have any obligation or liability to the
other for any action taken or omitted by or on behalf of any party hereunder or
in connection herewith (such obligation and liability being the sole
responsibility of such party).
29. No provision of this Agreement shall become effective until the
Agreement is approved by the Board of Directors of Issuer. In the event no such
approval is obtained by Issuer, this Agreement shall be null and void and the
Guaranty Documents shall be reinstated in their entirety.
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30. Assignor (individually and for its affiliates, subsidiaries, successors
and assigns) hereby releases, remises and forever discharges Assignee, Issuer,
their respective subsidiaries (exclusive ofAmeritel), affiliates, predecessors,
successors, assigns, directors, officers, shareholders, agents, servants,
employees, representatives, administrators, accountants and attorneys
(collectively, the "Released Assignee Parties"; and each individually a
"Released Assignee Party") from any and all claims, demands, causes of action,
obligations, damages and liabilities arising from facts and circumstances
relating to the period prior to the date hereof and in any way arising out of,
connected with, or incidental to the Loan Documents and/or any dealings with or
between any of the Released Assignee Parties related to all actions,
negotiations, discussions and events resulting in the finalization and execution
of the Loan Documents arising through the date hereof. This release and waiver
shall be and remain in fall force and effect notwithstanding the discovery by
the Released Assignor Parties (as defined below) after the date hereof (i) of
any new or additional claim against any Released Assignee in any way relating to
the subject matter of the Loan Documents, (ii) that any fact relied upon by any
Released Assignee Party in connection with the Loan Documents was incorrect, and
(iii) that any representation made by any Released Assignee Party in connection
with the Loan Documents was untrue or that any Released Assignee Party
unintentionally concealed any fact, circumstance or claim relevant to the
execution by the Released Assignor Parties of the Loan Documents, as applicable.
The Released Assignor Parties acknowledge and agree that this release is
intended to, and does, fully, finally and forever release all matters between
the Released Assignor Parties and the Released Assignee Parties arising out of
the documents contained in Schedule 1. notwithstanding the existence or
discovery of any such new or additional claims or facts, incorrect facts,
misunderstanding of law, misrepresentation or unintentional concealment, in any
way relating to the subject matter of this release.
31. Issuer and Assignee (individually and for their respective affiliates,
subsidiaries (exclusive of Ameritel), successors and assigns) hereby release,
remise and forever discharge Assignor and its subsidiaries, affiliates,
predecessors, successors, assigns, directors, officers, shareholders, agents,
servants, employees, representatives, administrators, accountants and attorneys
(collectively, the "Released Assignor Parties"; and each individually a
"Released Assignor Party") from any and all claims, demands, causes of action,
obligations, damages and liabilities arising from facts and circumstances
relating to the period prior to the date hereof and in any way arising out of,
connected with, or incidental to the Loan Documents and/or any dealings with or
between any of the Released Assignor Parties related to all actions,
negotiations, discussions and events resulting in the finalization and execution
of the Loan Documents arising through the date hereof. This release and waiver
shall be and remain in full force and effect notwithstanding the discovery by
the Released Assignee Party after the date hereof (i) of any new or additional
claim against any Released Assignor Party in any way relating to the subject
matter of the Loan Documents, (ii) that any fact relied upon by any Released
Assignee Party in connection with the Loan Documents was incorrect, and (iii)
that any representation made by any Released Assignor Party in connection with
the Loan Documents was untrue or that any Released Assignor Party
unintentionally concealed any fact, circumstance or claim relevant to the
execution by the Released Assignee Parties of the Loan Documents, as applicable.
The Released Assignee Parties acknowledge and agree that this release is
intended to, and does, fully, finally and forever release all matters between
the Released Assignor Parties and the Released Assignee Parties arising out of
the documents contained in Schedule 1. notwithstanding the existence or
discovery of any such new or additional claims or facts, incorrect facts,
misunderstanding of law, misrepresentation or unintentional concealment, in &ny
way relating to the subject matter of this release. Nothing in this Paragraph 31
is intended to prevent the enforcement of any right or remedy of any party under
this Assignment Agreement, including without limitation with respect to any
misrepresentation.
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32. Any schedules referenced herein and to be attached hereto may be
provided by the responsible party within two (2) business dates from the date
hereof.
33. Capitalized terms not otherwise defined herein shall have the meanings
ascribed those terms in the Amended Loan Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Assignment of
Claim by their duly authorized representatives dated as of the date and year
first above written.
ASSIGNOR:
FOOTHILL CAPITAL CORPORATION, a
California corporation
By:
Its:
ASSIGNEE:
TRANCHE B, INC., a Delaware corporation
By:
Its:
ISSUER:
USCI, INC.
By:
Its:
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