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EXHIBIT 10.16
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ASSIGNMENT AND
ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT made as of January 16, 1996,
between BANK LEUMI TRUST COMPANY OF NEW YORK, a New York banking corporation
("Assignor"), and RUCON SERVICES CORP. (formerly known as ▇▇▇▇▇ Holdings Corp.
and, prior to that, as ▇▇▇▇▇ Automotive, Inc.), a Delaware corporation
("Assignee").
WHEREAS, pursuant to certain promissory notes listed on Exhibit A
annexed hereto (collectively, the "Loan Documents"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Borrower") is indebted to Assignor in the aggregate principal amount of
$12,000,000.00 (the "Indebtedness"); and
WHEREAS, the Indebtedness is secured by certain collateral consisting
of various promissory notes, shares of stock and contract rights (the
"Collateral") pursuant to certain agreements, instruments and related documents
(the "Collateral Documents"), all as listed on Exhibit B annexed hereto; and
WHEREAS, Assignee wishes to purchase from Assignor, and Assignor is
willing to sell and assign to Assignee, all of Assignor's right, title and
interest in and to and all of Assignor's obligations under the Indebtedness, the
Loan Documents, the Collateral and the Collateral Documents, in each case on an
"as is" basis without any representation or warranty of any nature (except as
set forth in Section 2.1 hereof), all upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, Assignor and Assignee agree as follows:
1. Assignment and Assumption.
1.1. Assignor hereby sells and assigns to Assignee, and
Assignee hereby purchases from Assignor, all of Assignor's right, title and
interest in and to the Indebtedness, the Loan Documents, the Collateral and the
Collateral Documents, in each case on an "as is" basis without any
representation or warranty of any nature whatsoever, except as specifically set
forth in Section 2.1 hereof. Assignor also hereby assigns to Assignee (in each
case on an "as is" basis without any representation or
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warranty whatsoever, except as provided herein) all other documents evidencing
or securing any or all of the Indebtedness, and all collateral held by Assignor
securing any part of the Indebtedness (collectively, the "Other Assigned
Documents and Collateral").
1.2. Assignee hereby agrees to assume, and to duly perform
as and when due, each and every obligation and liability of Assignor under the
Loan Documents and the Collateral Documents.
1.3. As consideration for the assignment hereunder of the
Indebtedness, the Loan Documents, the Collateral and the Collateral Documents,
concurrently with the execution and delivery of this Assignment Agreement, (i)
Assignee shall pay Assignor by wire transfer to Assignor's account at the
Assignor, ABA #026 002 794, Credit Items in Suspense, Account No. 2090 104 3302,
the sum of Five Million Five Hundred Thousand Dollars ($5,500,000) (the
"Assignment Price"), and (ii) Assignee shall pledge to the Bank such number of
shares of common stock and class B stock of ▇▇▇▇▇▇ Holding Corporation, a New
Jersey corporation ("▇▇▇▇▇▇ Holding"), as is set forth in the Stock Pledge
Agreement (▇▇▇▇▇▇ Holding) dated the date hereof between Assignee and Assignor,
and shall cause ▇▇▇▇▇▇ Holding to pledge to the Bank such number of shares of
common stock of ▇▇▇▇▇▇ Partition Corporation, a New Jersey corporation, as is
set forth in the Stock Pledge Agreement (▇▇▇▇▇▇ Partition) dated the date hereof
between ▇▇▇▇▇▇ Holding and Assignor.
2. Assignment "As Is".
2.1. Assignor is making the assignment pursuant to this
Assignment Agreement on an "as is" basis without any representation or warranty
whatsoever, except that Assignor hereby represents and warrants to Assignee that
Assignor or BLN Corporation, a New York corporation ("BLN Corporation"), an
affiliate of the Bank, is the sole owner and holder of the Loan Documents, free
and clear of all security interests, liens or other encumbrances, except for the
claims asserted as referred to in Section 2.3 hereof. Without limitation to the
foregoing, Assignor makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the execution, legality, validity, enforceability,
perfection, genuineness, sufficiency or value of the Loan Documents, the
Collateral Documents or any Collateral with respect thereto or any other
instrument or document furnished pursuant thereto, and
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(ii) the financial condition of or any other matter relating to the Borrower or
any guarantor guaranteeing any portion of the Indebtedness (a "Guarantor"), or
the performance or observance by the Borrower or any Guarantor of his or its
obligations under the Loan Documents, the Collateral Documents or any other
instrument or document furnished pursuant thereto.
2.2. Assignee recognizes that Assignor is selling and
assigning, and Assignee is purchasing and assuming, the Indebtedness, the Loan
Documents, the Collateral and the Collateral Documents "as is" without any
representation or warranty, except as specifically provided in Section 2.1
hereof. Assignee agrees that the sale, assignment, purchase and assumption of
the Indebtedness, the Loan Documents, the Collateral and the Collateral
Documents is subject to all of the provisions of (i) that certain Agreement
dated as of April 16, 1993, as amended, between Assignor and the Borrower (the
"Forbearance Agreement"), (ii) that certain Agency and Intercreditor Agreement
dated March 29, 1993 by and among the Borrower, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Agent, ▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Intercreditor Agreement") and (iii) all
agreements, documents and instruments executed in connection with the foregoing.
Assignee acknowledges that it has been offered a reasonable opportunity to
investigate the Loan Documents, the Indebtedness, the Collateral and the
Collateral Documents and the Borrower's financial condition, and Assignee has
been offered access to Assignor's books and records relating to the Loan
Documents, the Indebtedness, the Collateral and the Collateral Documents.
Assignee agrees to be bound by the terms and conditions of the Loan Documents,
including without limitation the Forbearance Agreement and the Intercreditor
Agreement, and of the Collateral Documents. Assignee has made its own
investigation and is familiar with the Borrower's assets and financial
condition. Assignee is entering into the transactions described in this
Assignment Agreement on the basis of its independent evaluation and
investigation, and does not rely on any statement or representation made by
Assignor or Assignor's directors, officers, employees or legal or financial
advisers with respect to the Indebtedness, the Loan Documents, the Collateral or
the Collateral Documents (except as set forth in Section 2.1 hereof), or the
value of the Borrower's assets or the Borrower's financial condition. Assignee
hereby agrees that it shall have no recourse against Assignor or Assignor's
directors, officers, employees or legal or financial advisers with respect to
the Indebtedness, the Loan
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Documents, the Collateral, the Collateral Documents or any of the transactions
referred to in this Assignment Agreement or with respect to any other documents
delivered in connection herewith (except with respect to a breach of a
representation or warranty set forth in Section 2.1 hereof).
2.3. Without limiting the generality of the provisions of
Section 2.2, Assignor has advised Assignee of claims made by each of European
American Bank ("EAB") and ▇▇▇▇▇ ▇. ▇▇▇▇ ("Rose") of an interest in the
Collateral or a portion thereof and Assignee hereby agrees that such claims
shall not form the basis of any claims by Assignee against Assignor.
2.4. Assignee covenants and agrees that it will not take any
action that will result in, or may be deemed to result in, a waiver or amendment
or modification of any rights of Assignor against any person or entity other
than ▇▇▇▇▇ pursuant to any agreement, instrument or document related to the
Indebtedness, including without limitation any co-guarantor or co-obligor under
the Indebtedness, or be construed as limiting or prohibiting Assignor from
enforcing any right or remedy Assignor may have against any such other person or
entity. Notwithstanding the foregoing, nothing in this Assignment Agreement is
intended to prohibit or prejudice Assignee's right to (i) assign this Assignment
Agreement, the Indebtedness, the Loan Documents, the Collateral or the
Collateral Documents, provided that any assignee of such assignment shall take
such assignment subject to this Assignment Agreement (and acknowledge such in
writing), or (ii) enforce any of its rights or remedies with respect to the
Indebtedness or the Collateral, including without limitation any right it may
have to foreclose on or otherwise proceed against the Collateral.
3. Representations and Warranties of Assignee. Assignee hereby
represents and warrants to Assignor that:
3.1. Assignee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the power and authority to own its properties and to transact the business in
which it is engaged.
3.2. Assignee has full power and authority to enter into and
perform this Assignment Agreement. This Assignment Agreement has been duly
authorized by all necessary corporate action. No consent or approval
(governmental or otherwise) or the giving of notice or the
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taking of any other action is required as a condition to the validity or
enforceability of this Assignment Agreement.
3.3. This Assignment Agreement has been duly executed and
delivered and constitutes the valid and legally binding obligation of Assignee,
enforceable in accordance with its terms, except that such enforcement may be
subject to or limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally, and the
application of general principles of equity.
3.4. The execution, delivery and performance by Assignee of this
Assignment Agreement does not and will not (i) violate any provision of its
Certificate of Incorporation or By-laws or any other constituent documents of
Assignee; (ii) violate any order, decree or judgment, or any provisions of any
law, statute, rule or regulation, domestic or foreign, to which Assignee or any
of its properties or assets are subject; (iii) violate or conflict with or
result in a breach of or constitute (with notice or lapse of time or both) a
default under any agreement, mortgage, indenture or contract to which Assignee
is a party, or by which Assignee or any of its properties or assets is bound or
affected; or (iv) except as contemplated hereby, result in the creation or
imposition of any lien of any nature whatsoever upon any property or assets of
Assignee.
3.5. Assignee is not now, nor will the consummation of the
transactions contemplated hereby render it, (i) "insolvent" as that term is
defined in Section 101(32) of the United States Bankruptcy Code (the "Bankruptcy
Code"), or Section 271 of the New York Debtor and Creditor Law ("NYDCL"), (ii)
unable to pay its debts as they mature, within the meaning of Section
548(a)(2)(B)(iii) of the Bankruptcy Code or Section 275 of the NYDCL, or (iii)
left with an unreasonably small capital. The execution and delivery of this
Assignment Agreement by Assignee does not constitute a "fraudulent transfer"
within the meaning of the Bankruptcy Code as now constituted or under any other
applicable statute. No bankruptcy or insolvency proceedings are pending against
Assignee, contemplated by Assignee or, to the knowledge of Assignee, threatened
against Assignee.
4. Assignor's Conditions to Close. The obligations of Assignor to
consummate the transactions under this Assignment Agreement are subject to the
satisfaction on or prior to the date hereof of the following conditions:
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4.1. Representations and Warranties True at Closing. The
representations and warranties of Assignee contained in this Assignment
Agreement (including the Exhibits and Schedules hereto) or any certificate or
document delivered to Assignor in connection herewith shall be true in all
material respects.
4.2. No Action/Proceeding. No action or proceeding before a
court or any other governmental agency or body shall have been instituted or
threatened to restrain or prohibit the transaction herein contemplated, and no
governmental agency or body or other entity shall have taken any other action or
made any request of Assignor or Assignee as a result of which Assignor
reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ that to pursue the transactions hereunder may
constitute a violation of law.
4.3. Payment by Assignee. Assignee shall have paid the
Assignment Price to Assignor on or prior to the date hereof by wire transfer in
accordance with Section 1.2 hereof.
4.4. Board and Stockholder Approval. Assignee shall have
delivered to Assignor resolutions of the Board of Directors and of the sole
stockholder of Assignee, certified by the Assistant Secretary of Assignee as
being true and in full force and effect, approving the execution and delivery of
this Assignment Agreement and the transactions contemplated hereby.
4.5. Opinion of Counsel. Assignee shall have delivered to
Assignor an opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLP, special counsel to Assignee
and ▇▇▇▇▇▇ Holding and (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., counsel to Assignee and
▇▇▇▇▇▇ Holding, in each case in forms satisfactory to the Bank.
4.6. Good Standing. Assignee shall have delivered to
Assignor a Certificate of Good Standing for Assignee, certified by the Secretary
of State of Delaware.
4.7. ▇▇▇▇▇▇ Settlement. Each of ▇▇▇▇▇ and The ▇▇▇▇▇
Corporation ("▇▇▇▇▇") shall have obtained satisfactions of all claims against
them (or any of Arlen's subsidiaries) relating to that certain action entitled
▇▇▇▇▇▇ Guaranty Trust Company of New York v. The ▇▇▇▇▇ Corporation, et al.,
Index No. 122525/95, and all other actions commenced by ▇▇▇▇▇▇ Guaranty Trust
Company of New York ("▇▇▇▇▇▇ Guaranty") in connection therewith, and ▇▇▇▇▇
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and ▇▇▇▇▇ shall have delivered to Assignor copies of all documentation
evidencing such satisfactions, including without limitation any and all releases
and/or discharges signed by ▇▇▇▇▇▇ Guaranty in favor of ▇▇▇▇▇ and ▇▇▇▇▇.
4.8. Restructuring Agreement. The Restructuring Agreement
dated the date hereof between Assignor and the Borrower shall have been fully
executed and delivered.
5. Indemnification.
5.1. Indemnification. Assignee hereby indemnifies and agrees
to fully defend, save and hold Assignor harmless from and against all demands,
claims, actions or causes of action, assessments, losses, damages, liabilities,
costs and expenses, including, without limitation, interest, penalties,
disbursements and expenses (collectively, the "Damages"), asserted against, or
imposed upon or incurred by Assignor, or any of its affiliates, directly or
indirectly, arising out of or resulting from:
(a) any material untruth or inaccuracy in any
representation made by Assignee or the material breach of any warranty made by
Assignee set forth in this Assignment Agreement or in any agreement or
instrument executed in connection herewith;
(b) any claim that is brought or asserted by any third
party against Assignor arising out of the assignment of the Indebtedness, the
Loan Documents, the Collateral or the Collateral Documents by Assignor to
Assignee, or any actions taken with ▇▇▇▇▇ or Rucon or any of their affiliates in
connection with, in contemplation of, or pursuant to said assignment; and
(c) any action taken by Assignee or any other person in the
future relating to the Indebtedness, the Loan Documents, the Collateral, or the
Collateral Documents.
5.2. Defense of Actions. Assignor shall give written notice
(the "Claim Notice") within a reasonably prompt period of time to Assignee of
any written claim by a third party which is likely to give rise to a claim by
Assignor against Assignee based on the indemnity agreements contained in this
Section 5, stating the nature and basis of said claim and the amount thereof, to
the extent known. If within thirty (30) days after delivery of the Claim Notice
Assignee advises Assignor that it will assume the defense at
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Assignee's expense, then so long as such defense is being conducted diligently
and in good faith, Assignor shall not settle or admit liability with respect to
the claim and shall afford to Assignee and defense counsel all reasonable
assistance in defending against the claim. If Assignee assumes the defense,
counsel shall be selected by Assignee at its expense and if Assignor then
retains its own counsel, it shall do so at its own expense; provided, however,
that if Assignor determines reasonably and in good faith that a conflict of
interest exists or may exist between itself and Assignee in connection with any
third party claim (other than a conflict arising out of the wish of one of the
parties to settle the claim), Assignor shall be entitled to select its own
counsel at Assignee's expense, regardless of whether Assignee has elected to
defend such action and is doing so diligently and in good faith. If Assignee
fails to advise Assignor that it will assume the defense at its expense within
thirty (30) days after delivery by Assignor to Assignee of a Claim Notice, the
claim for indemnity shall be conclusively presumed to have been assented to and
approved, and in such case Assignor may control the defense of the matter or
case with counsel selected by Assignor at Assignee's expense and, at Assignor's
sole discretion, settle or admit liability at Assignee's expense.
5.3. Expiration. The provisions of Sections 5.1 and 5.2
shall expire on the sixth anniversary of the date hereof and shall thereafter be
of no further force or effect, except with respect to an action commenced prior
to the date of such expiration.
6. Covenant by Assignee Not to ▇▇▇. Assignee, for itself,
its successors, assigns, stockholders, directors, representatives and agents
hereby covenants and represents that it will not institute any complaints,
claims, charges, lawsuits, or proceedings of any kind with any governmental
agency or any court, against Assignor or any of Assignor's parent companies,
subsidiaries, affiliates, divisions, or any otherwise related entity by reason
of any claim, present or future, known or unknown, arising from or related in
any way to the terms and provisions of this Assignment Agreement or any other
agreement between Assignee and Assignor executed prior to the date hereof or
contemporaneously herewith, whether oral or written, express or implied, except
with respect to (i) a breach of any representation or warranty made by Assignor
in Section 2.1 hereof, (ii) a material breach of the Assignor's obligations
pursuant to Section 7.3, or (iii) the unenforceability of any assignment made in
accordance with
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this Assignment Agreement (a) by reason of a lack of authority on the part of
Assignor or any person executing this Assignment Agreement on behalf of Assignor
or (b) because this Assignment Agreement or any assignment made hereby is in
violation or contravention of any applicable law, statute, order, regulation or
other governmental or quasi-governmental authority or any contract or agreement
to which Assignor is a party.
7. Miscellaneous.
7.1. ASSIGNEE HEREBY WAIVES TRIAL BY JURY IN ANY COURT AND
ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN
ANY WAY RELATED TO THIS ASSIGNMENT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY AND/OR THE ENFORCEMENT OF ANY OF ASSIGNOR'S RIGHTS AND REMEDIES
HEREUNDER.
7.2. Neither the failure nor any delay on the part of
Assignor to exercise any right, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
7.3. Each of Assignee and Assignor shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as the other party hereto may reasonably request in order to carry out
the intent and accomplish the purposes of this Assignment Agreement and the
consummation of the transactions contemplated hereby, including without
limitation performing such further acts required to be performed under any of
the Loan Documents.
7.4. Any notice, consent, approval, request, demand or other
communication required or permitted hereunder must be in writing to be effective
and shall be deemed delivered and received (i) if personally delivered or if
delivered by telex or telecopy with electronic confirmation when actually
received by the party to whom sent, or (ii) if delivered by mail (whether
actually received or not), at the close of business on the third day next
following the day when placed in the federal mail, postage prepaid, certified or
registered mail, return receipt requested, or (iii) if delivered by a recognized
overnight mail service at the close of business on the next
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day following the day when placed in the custody of such service, addressed as
follows:
If to Assignee:
Rucon Services Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Suite 300
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
If to Assignor:
Bank Leumi Trust Company of New York
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
First Vice President
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ & Kuh, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
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7.5. This Assignment Agreement shall inure to the benefit of
and shall be binding upon the parties and their respective heirs, successors and
permitted assigns. Nothing in this Assignment Agreement, expressed or implied,
is intended to or shall (a) confer on any person other than the parties, and
their respective heirs, successors or assigns, any rights, remedies, obligations
or liabilities under or by reason of this Assignment Agreement, or (b)
constitute the parties partners or participants in a joint venture.
7.6. No person shall be deemed to be a third party
beneficiary of this Assignment Agreement, and nothing contained herein shall be
construed as a waiver or amendment or modification of any rights of Assignor
against any other person or entity pursuant to any agreement, instrument or
document or be construed as limiting or prohibiting Assignor from enforcing any
right or remedy Assignor may have against any other person or entity or from
amending, modifying, limiting, waiving, releasing any such right or remedy that
it may have against any other person or entity, including, without limitation,
any other obligor or guarantor of the Indebtedness, or any part thereof, or from
amending, modifying or extending the terms of the Indebtedness with respect to
such other persons or entities, all of which rights and remedies of the Bank are
expressly reserved, and all of which agreements, instruments and documents
remain in full force and effect.
7.7. Nothing contained herein shall be construed as a waiver
or amendment or modification of any rights of Assignor against the Borrower or
any other person or entity under any agreement, instrument or document (other
than those comprising the Loan Documents) pursuant to which the Borrower or such
other person or entity is indebted or obligated to Assignor, whether as
principal obligor, guarantor or otherwise, or be construed as limiting or
prohibiting Assignor from enforcing any right or remedy Assignor may have
against the Borrower (or any other such person or entity) pursuant thereto
(except to the extent assigned to Assignee herein), including, without
limitation, the right to enforce Assignor's rights to any collateral therefor,
all of which rights and remedies of Assignor are expressly reserved, and all of
which agreements, instruments and documents and agreements remain in full force
and effect.
7.8. This Assignment Agreement may not be modified or
amended except by an agreement or instrument in
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writing signed by the party against whom enforcement of any such modification or
amendment is sought. Any party may waive performance or compliance by any other
party with respect to any term or provision of this Assignment Agreement on the
part of such other party to be performed or complied with; provided, however,
that such waiver shall be effective only if evidenced by an instrument in
writing signed by the party waiving such compliance or performance. The waiver
by any party of a breach of any term or provision of this Assignment Agreement
shall not be construed as a waiver of any subsequent breach. No failure or delay
by Assignor in exercising any right or remedy it may have shall operate as a
waiver thereof.
7.9. This Assignment Agreement and any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by Assignee without the prior written consent of Assignor; provided,
however, that no such assignment by Assignee shall relieve Assignee of any
liability or obligation hereunder, including without limitation Assignee's
obligations under Section 5 hereof, and provided further that any assignee
pursuant to this Section 7.9 acknowledges in writing that it takes such
assignment subject to this Agreement.
7.10. This Assignment Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
7.11. Any term or provision of this Assignment Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Assignment Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction.
7.12. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of law provisions thereof. Assignee hereby consents and
submits to the jurisdiction of the courts of the State of New York located
within the City of New York and of the courts of the United States located
within the City of New York for all purposes of this Agreement, including,
without limitation, any action for the enforcement of any right,
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remedy, obligation or liability arising under or by reason of this Assignment
Agreement.
7.13. All prior or contemporaneous agreements, contracts,
promises, representations and statements, if any, among the parties hereto, or
their representatives, as to the subject matter hereof, including without
limitation that certain letter dated October 17, 1995 from Assignor to the
Borrower, are merged into this Assignment Agreement, and this Assignment
Agreement shall constitute the entire agreement between Assignor and Assignee
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the date first set forth above.
BANK LEUMI TRUST COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
RUCON SERVICES CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
President
The undersigned is executing this Assignment Agreement only with
respect to the provisions of Section 2.1 hereof and joins in the assignment of
the Indebtedness, the Loan Documents, the Collateral, the Collateral Documents
and the Other Assigned Documents and Collateral to the extent of its ownership
therein.
BLN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A TO ASSIGNMENT AGREEMENT(*)
The following list of documents is not intended to be a complete
representation of the documents and instruments relating to the Indebtedness or
the collateral securing the Indebtedness:
1. Installment Promissory Note dated May 1, 1991 in the original principal
amount of $500,000, as amended, executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
2. Installment Promissory Note dated May 8, 1991 in the original principal
amount of $2,000,000, as amended, executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
3. Floating Rate Promissory Note dated November 1, 1991 in the original
principal amount of 366,666.67, as amended, executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
4. Promissory Note dated April 1, 1992 in the original principal amount of
$4,000,000, executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
5. Severance Secured Note dated January 16, 1996, in the original principal
amount of $5,133,334.00, executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
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(*) The notes listed in Nos. 1 through 4 of this Exhibit A are modified by the
provisions of (i) that certain Forbearance Agreement dated as of April 16, 1993,
as amended, between Bank Leumi Trust Company of New York and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
and (ii) that certain Agency and Intercreditor Agreement dated March 29, 1993 by
and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Agent, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and (iii) all agreements, documents and instruments executed in
connection with the foregoing.
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EXHIBIT B TO ASSIGNMENT AGREEMENT
1. 5-1/4% Subordinated Note of The ▇▇▇▇▇ Corporation, a New York Corporation
("▇▇▇▇▇"), dated September 29, 1979, issued to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") in
the principal amount of $15,500,000.00.
2. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $7,833,333.00.
3. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $666,667.00.
4. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $333,333.00.
5. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated July 5, 1979 issued to ▇▇▇▇▇ in the
principal amount of $386,667.00.
6. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $2,000,000.00 (current holder ▇▇▇▇▇▇ ▇▇▇▇▇▇
Flattau & Klimpl, as escrow holder for ▇▇▇▇▇).*
7. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $666,667.00 (current holder ▇▇▇▇▇▇ ▇▇▇▇▇▇
Flattau & Klimpl, as escrow holder for ▇▇▇▇▇).*
8. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $1,000,000.00 (current holder ▇▇▇▇▇▇ ▇▇▇▇▇▇
Flattau & Klimpl, as escrow holder for ▇▇▇▇▇).*
9. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $1,333,333.00 (current holder ▇▇▇▇▇▇ ▇▇▇▇▇▇
Flattau & Klimpl, as escrow holder for ▇▇▇▇▇).*
-------------------
* Neither the Bank nor ▇▇▇▇▇ has possession of this Note.
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10. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated September 29, 1978 issued to ▇▇▇▇▇
in the principal amount of $62,000.00 (current holder ▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau
& Klimpl, as escrow holder for ▇▇▇▇▇).*
11. 5-1/4% Subordinated Note of ▇▇▇▇▇ dated July 5, 1979 issued to Andlan
Realty Corp. in the principal amount of $333,333.33 (this is a $500,000.00
note in which ▇▇▇▇▇ has a 66-2/3% interest).
12. Extension Agreement dated March 29, 1993 between ▇▇▇▇▇ and ▇▇▇▇▇.
13. Collateral Assignment of Proceeds (▇▇▇▇▇) dated March 29, 1993 between
▇▇▇▇▇ and ▇▇▇▇▇.
14. Collateral Assignment of Proceeds (Rucon (formerly Automotive)) dated March
29, 1993 between ▇▇▇▇▇ and Rucon.
15. Stock Pledge Agreement (Rucon (formerly Automotive)) dated March 29, 1993
between ▇▇▇▇▇ and ▇▇▇▇▇ relating to the shares of Rucon.
16. Stock Pledge Agreement (Grant) dated March 29, 1993 between ▇▇▇▇▇ and Rucon
(formerly Automotive) relating to the shares of Grant Products, Inc., a
Delaware corporation ("Grant").
17. Current Obligations Agreement dated March 29, 1993 between ▇▇▇▇▇ and Rucon
(formerly Automotive).
18. Agency and Intercreditor Agreement dated March 29, 1993 between ▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇.
19. Agreement among ▇▇▇▇▇, ▇▇▇▇▇ and Bank Leumi Trust Company of New York dated
as of April 6, 1993, relating to transfer of common stock of ▇▇▇▇▇ by
▇▇▇▇▇.
20. Letter of Direction from ▇▇▇▇▇ to ▇▇▇▇▇, Rucon and New Automotive.
21. Security Agreement dated April 16, 1993 made by ▇▇▇▇▇ to Bank Leumi Trust
Company of New York ("Assignor") (the "Security Agreement").
-----------------------
* Neither the Bank nor ▇▇▇▇▇ has possession of this Note.
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22. Amendment dated January 16, 1996 to the Security Agreement.
23. Note in the original principal amount of $5,000,000 dated June 25, 1988
made by BIA-COR Holdings, Inc. to ▇▇▇▇▇.
24. 100 shares of the Common Stock of the Assignee pledged by The ▇▇▇▇▇
Corporation to ▇▇▇▇▇.
25. 100 shares of the Common Stock of Grant Products, Inc. pledged by the
Assignee to ▇▇▇▇▇.
26. Any and all other collateral granted or posted by ▇▇▇▇▇ or any third party
to the Assignor solely to secure any or all obligations of ▇▇▇▇▇ described
on the Schedule entitled "▇▇▇▇▇▇ ▇▇▇▇▇ Sale - Revised," a copy of which is
annexed hereto, but this item 24 does not include either: (i) collateral
securing obligations of any party other than ▇▇▇▇▇, or (ii) deposits of
▇▇▇▇▇ with the Assignor.
The 5-1/4% Subordinated Notes of ▇▇▇▇▇ (the "Subordinated Notes")
were originally issued in 1969 by Spartans Industries, Inc., which was merged
into ▇▇▇▇▇, then known as ▇▇▇▇▇ Realty & Development Corp., on February 26,
1971. The aggregate original principal amount of the Subordinated Notes is
$30,115,333.33 (which amount includes only the amount of ▇▇▇▇▇'▇ beneficial
interest in the case of the Subordinated Note issued to Andlan Realty Corp.).
The documents listed above are to be modified by certain
restatements, amendments and supplemental documents to reflect the May 15, 1995
corporate reorganization of certain subsidiaries of ▇▇▇▇▇.
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