ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
THIS INDENTURE dated for reference the 1st day of October, 2000.
BETWEEN:
GOLDPAINT INTERNET SERVICES, INC., a California Company
(herein called the "Assignor")
AND:
VIRTUALSELLERS.COM, INC., a corporation existing under the Canada Business
Corporations Act
(herein called the "Assignee")
WITNESSES THAT WHEREAS:
A. By Letter Agreement (the "Asset Purchase Agreement"), dated for
reference the August 31, 2000, the Assignor agreed to sell to the Assignee the
Assignee's software and internet services development business (the "Business")
and, except as expressly excluded therein, all property and assets of the
Business including in particular all right, title, benefit and interest which
the Assignor is entitled to or possessed of under all contracts, engagements and
commitments respecting the Business;
B. The parties wish to enter into this instrument to effect the
conveyance to the Assignee of said right, title, benefit and interest of the
Vendor under said contracts, engagements and commitments; and
C. Various representations and warranties were made by the Assignor to
the Assignee in the Asset Purchase Agreement respecting the said contracts,
engagements and commitments;
NOW THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, and the sum of ONE DOLLAR ($1.00) and other good
and valuable consideration now paid by the Assignee to the Assignor, the receipt
whereof is hereby acknowledged by the Assignor:
1. The Assignor hereby bargains, sells, assigns, transfers and sets over
unto the Assignee all right, title, benefit and interest which the Assignor is
entitled to or possessed of, in, to or under all contracts, engagements and
commitments respecting the Business or the Business Assets including without
limitation the Assignor's right, title, benefit and interest in respect of the
contracts, engagements and commitments described in the Schedule attached
hereto (which
<PAGE>
contracts, engagements and commitments described in said Schedule are herein
called the "Material Contracts") TO HAVE AND TO HOLD UNTO THE ASSIGNEE FOREVER.
2. The Assignor hereby represents and warrants to the Assignee that:
(a) each of the Material Contracts is in good standing and in full force and
effect as of the date hereof;
(b) the Assignor has the right to convey said right, title, benefit and
interest in the Material Contracts to the Assignee in the manner herein
provided; and
(c) the Assignor has not previously assigned said right, title, benefit and
interest, and no other person whomsoever is entitled to any claim or demand in
respect of the Material Contracts.
3. Subject to the terms of the Asset Purchase Agreement, the Assignee agrees
that the Assignee assumes, and will perform, and discharge all of the
obligations and liabilities of the Assignor in respect of the Material
Contracts, and agrees to indemnify and save harmless the Assignor from and
against all claims, actions, suits, proceedings, demands, assessments,
judgments, charges, penalties, costs and expenses (including the full amount of
any legal expenses invoiced to the Assignor) made or claimed against or suffered
or incurred by the Assignor resulting from or arising out of or in connection
with the failure by the Assignee to assume, perform and discharge as aforesaid.
4. The Assignor and the Assignee agree that in respect of any of the
Material Contracts which are not assignable by the terms thereof or in respect
of which any consent or approval is required, the right, title, benefit and
interest of the Assignor therein will be held by the Assignor in trust for the
Assignee and will be performed by the Assignee in the name of the Assignor (and,
as the case may be, the within assignment will not take effect until such
consent or approval is obtained) but the provisions of Clause 3 hereof will
apply notwithstanding.
5. The Assignor hereby constitutes and appoints the person from time to time
holding the office of President of the Assignee as the true and lawful attorney
of the Assignor for and in the name or otherwise on behalf of the Assignor with
full power of substitution to do and execute all acts, deeds, matters and things
whatsoever necessary or desirable to give effect to the conveyance and assurance
to the Assignee of the Material Contracts as herein contemplated, for the
performance by the Assignee of the obligations of the Assignor under the
Material Contracts, and for the assurance to the Assignee of the full enjoyment
of all of the right, title, benefit and interest of the Assignor under the
Material Contracts in accordance with the intent and meaning of this Indenture.
Said Power of Attorney, being coupled with the Assignee's interest, will not be
extinguished by the dissolution of the Assignor or any other reason or revocable
by the Assignor.
6. The Assignor agrees that from time to time and at all times hereafter the
Assignor will, upon the reasonable request of the Assignee, but at the expense
of the Assignee, make, do and execute, or cause to be made, done and executed
all such further acts, deeds, matters and things to give effect to the
conveyance and assurance unto the Assignee of the Material Contracts as
aforesaid, for the performance by the Assignee as aforesaid, and for the
assurance to the
<PAGE>
Assignee of the full enjoyment as aforesaid, and will make its best efforts to
procure any consents and approvals required therefore.
7. This Indenture will be read and construed together with the Asset
Purchase Agreement, and the rights and obligations of the parties hereto will be
determined in accordance with the covenants, agreements, conditions,
representations and warranties made herein and in the Asset Purchase Agreement.
8. All grants, covenants, provisos, agreements, rights, powers, privileges
and liabilities contained in this Indenture will be read and held as made by and
with, granted to and imposed upon, the respective parties hereto, and their
respective successors and assigns.
9. This Indenture may be executed in several counterparts, each of which
will be deemed to be an original and all of which will together constitute one
and the same instrument.
IN WITNESS WHEREOF the parties have executed these presents as of the day and
year first above written.
GOLDPAINT INTERNET SERVICES, INC.
Per: /s/ Mark Stubbins
Authorized Signatory
VIRTUALSELLERS.COM, INC.
Per: /s/ Dennis Sinclair
Authorized Signatory
<PAGE>
List of Schedules
Material Contracts
