PARTIAL ASSIGNMENT AGREEMENT
This Partial Assignment Agreement (this "Agreement") is made as of August
27, 1997, by and between STERLING NATIONAL BANK, a national banking association
formerly known as Sterling National Bank & Trust Company of New York ("Assignor
Lender"), and TRANSAMERICA BUSINESS CREDIT CORPORATION, a Delaware corporation
("Assignee Lender"). All capitalized terms used in this Agreement and not
otherwise defined herein will have the respective meanings set forth in the
Credit Agreement (as hereinafter defined).
RECITALS:
A. Business Loan Center, Inc., a Delaware corporation ("BLC"), BLC
Financial Services, Inc., a Delaware corporation ("Parent"), and Business Loan
Center, a New York general partnership ("Partnership," and collectively with BLC
and Parent, the "Borrowers"), and Assignor Lender have entered into that certain
Revolving Credit Agreement dated as of December 19, 1994 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
pursuant to which Assignor Lender has agreed to make certain Advances to
Borrowers.
B. Assignor Lender desires to assign to Assignee Lender a portion of its
interest in the Revolving Credit Loan, the Obligations, the Loan Documents and
the Collateral, and to delegate to Assignee Lender a portion of its Commitment
and all of its other duties and obligations with respect to the Revolving Credit
Loan, the Obligations, the Loan Documents and the Collateral, all to the extent
and on the terms set forth below. Assignee Lender desires to accept such partial
assignment and delegation from Assignor Lender.
C. Contemporaneously with the execution and delivery of this Agreement,
Assignor Lender and Assignee Lender are entering into that certain Intercreditor
Agreement of even date herewith to determine their relative rights and
priorities with respect to the Collateral and the Revolving Credit Loan (the
"Intercreditor Agreement").
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions, and covenants herein contained, Assignor Lender and Assignee Lender
agree as follows:
1. ASSIGNMENT, DELEGATION, AND ACCEPTANCE
1.1 Assignment. Assignor Lender hereby transfers and assigns to Assignee
Lender, without recourse and without representations or warranties of any kind
(except as set forth in Section 3.2 hereof), a portion of Assignor Lender's
right, title, and interest in and obligations under the Revolving Credit Loan,
the Obligations, the Multi-Party Agreement, the Loan Documents and the
Collateral consisting of: (a) the portion of the aggregate outstanding Revolving
Credit Loan, as of the Effective Date (as defined below), advanced by Assignor
Lender against the Unguaranteed Portion of Eligible SBA Loans (as hereinafter
defined), including, but not limited to, the amount of all Junior Participation
Amounts as such term is defined in the Amended and Restated Junior Participation
Agreement dated February 7, 1996 (the "Junior Participation Agreement") between
Assignor Lender and Xxxxxx Xxxxxxxxx (the "Assigned Portion of the Revolving
Credit Loan"); (b) a Pro Rata Percentage (as defined below) of the Obligations;
(c) an undivided interest in the rights and remedies under Multi-Party Agreement
and the Loan Documents with respect to the Assigned Portion of the Revolving
Credit Loan; and (d) an undivided interest in the Collateral, subject to the
terms of the Intercreditor Agreement. A list of the Loan Documents is attached
as Schedule 1.1 hereto. As used herein "Unguaranteed Portion of Eligible SBA
Loans" means that portion of the Outstanding Balance which was used to fund the
Unguaranteed Amount. As used herein, "Pro Rata Percentage" means the percentage
obtained by dividing the Assigned Portion of the Revolving Credit Loan by the
aggregate outstanding amount of the Revolving Credit Loan as of the Effective
Date. The calculation of the Pro Rata Percentage is set forth on Schedule 2.1
attached hereto.
1.2 Delegation. Assignor Lender hereby irrevocably assigns and delegates
to Assignee Lender, without recourse, representations or warranties of any kind
(except as set forth in Section 3.2 hereof), the portion of its Commitment with
respect to Advances against the Unguaranteed Portion of Eligible SBA Loans.
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1.3 Acceptance by Assignee Lender. By its execution of this Agreement,
Assignee Lender irrevocably purchases, assumes and accepts the transfer,
assignment and delegation from Assignor Lender with respect to the Revolving
Credit Loans, the Obligations, the Multi-Party Agreement, the Loan Documents,
the Collateral and the Commitment on the terms and conditions provided in this
Agreement (the "Assignment and Delegation"), and agrees to be bound by the terms
and conditions thereof. Assignee Lender hereby unconditionally and absolutely
releases and discharges Assignor Lender and agrees to indemnify and hold
harmless Assignor Lender, from and against any and all duties, liabilities and
other obligations of any kind whatsoever arising from, under or in connection
with the Revolving Credit Loans, the Obligations, the Multi-Party Agreement, the
Loan Documents, the Collateral and the Commitment assigned to, and/or assumed by
Assignee Lender hereunder, to the extent that such duties, liabilities or other
obligations relate to actions taken or omitted to be taken by or on behalf of
Assignee Lender after the effectiveness of the Assignment and Delegation;
provided, that such release and indemnification shall not apply to any duties,
liabilities or other obligations arising from a breach of Assignor Lender's
representations, warranties and covenants under Section 3.2 hereof. By its
execution of this Agreement, Assignor Lender agrees, to the extent provided
herein, to relinquish its rights and be released from those obligations and
duties under the Multi-Party Agreement, the Loan Documents and the Commitment
that have been assigned and delegated to Assignee Lender hereunder.
1.4 Effective Date. The Assignment and Delegation by Assignor Lender and
acceptance by Assignee Lender will be effective as of the date of this Agreement
("Effective Date") and upon payment by Assignee Lender of the Assigned Amount
(as defined below).
2. PAYMENT BY ASSIGNEE LENDER; DELIVERIES BY ASSIGNOR LENDER AND ASSIGNEE
LENDER
2.1 Payment of the Assigned Amount. Assignee Lender will pay to Assignor
Lender, in immediately available funds, not later than 3:00 p.m. (New York time)
on the Effective Date, an amount equal to the Pro Rata Percentage of (a) the
then outstanding principal amount of the Revolving Credit Loan, and (b) accrued
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interest, fees and other amounts, all as set forth on Schedule 2.1 (the
"Assigned Amount").
2.2 Amendment and Restatement of Loan Documents; Further Assurances. Each
of Assignor Lender and Assignee Lender confirms that (a) upon payment of the
Assigned Amount, it will execute and deliver amendments or amendments and
restatements of the Credit Agreement and other relevant Loan Documents amending
or restating its respective rights and obligations with respect to the
Borrowers, after giving effect to this Agreement, and (b) it has provided to the
other full and complete copies of each such amendment or amendment and
restatement. Each of Assignor Lender and Assignee Lender agrees to execute and
deliver such certificates, documents of assignment, and other documents, and
take such other steps, as the other may reasonably request to evidence or
effectuate the terms of this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Assignee Lender's Representations, Warranties and Covenants. Assignee
Lender hereby represents, warrants, and covenants the following to Assignor
Lender:
(a) This Agreement is a legal, valid, and binding agreement of
Assignee Lender, enforceable according to its terms;
(b The execution and performance by Assignee Lender of its duties
and obligations under this Agreement and the Loan Documents will not require any
registration with, notice to, or consent or approval by any Federal, state or
local governmental authority, agency or court, or any other person or entity;
(c) Assignee Lender is familiar with transactions of the kind and
scope reflected in the Loan Documents and in this Agreement;
(d) Assignee Lender has made its own independent investigation and
appraisal of the financial condition and affairs of each of Borrowers, has
conducted its own evaluation of the Revolving Credit Loans and the Obligations,
the Collateral, the Loan Documents and each Borrower's creditworthiness, has
made its decision to become a lender to Borrowers independently and
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without reliance upon Assignor Lender, and will continue to do so; and
(e) Assignee Lender has full power and authority, and has taken all
action necessary to execute and deliver this Agreement and to fulfill the
obligations hereunder and to consummate the transactions contemplated hereby.
3.2 Assignor Lender's Representations, Warranties and Covenants. Assignor
Lender hereby represents, warrants and covenants the following to Assignee
Lender:
(a) The Assigned Amount is the total amount of the Obligations owed
to Assignor Lender as of the Effective Date with respect to Advances against the
Unguaranteed Portion of Eligible SBA Loans;
(b) This Agreement is a legal, valid and binding agreement of
Assignor Lender, enforceable according to its terms;
(c) The execution and performance by Assignor Lender of its duties
and obligations under this Agreement and the Loan Documents will not require any
registration with, notice to or consent or approval by any Federal, state or
local governmental authority, agency or court, or any other person or entity;
(d) Assignor Lender has full power and authority, and has taken all
action necessary to execute and deliver this Agreement and to fulfill the
obligations hereunder and to consummate the transactions contemplated hereby;
(e) Subject to the payment in full by Assignor Lender of the amounts
owing under the Junior Participation Agreement with respect to the Junior
Participation Amount, which amounts are included in and will be paid by Assignor
Lender from the Assigned Amount, Assignor Lender is the legal and beneficial
owner of the interests in the Revolving Credit Loan, the Obligations, the
Multi-Party Agreement, the Loan Documents, and the security interest in the
Collateral being assigned hereby, free and clear of any adverse claim, lien,
encumbrance, security interest, restriction on transfer, purchase option, call
or similar right of a third party; and
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(f) This Assignment by Assignor Lender to Assignee Lender complies,
in all material respects, with the terms of the Loan Documents.
4. LIMITATIONS OF LIABILITY
Except as provided in Section 3.2 hereof, Assignor Lender makes no
representations or warranties of any kind, and assumes no responsibility or
liability whatsoever, with regard to (a) the Multi-Party Agreement, the Loan
Documents or any other document or instrument furnished pursuant thereto or the
Revolving Credit Loan or other Obligations, (b) the creation, validity,
genuineness, enforceability, sufficiency, value or collectibility of any of
them, (c) the amount, value or existence of the Collateral, (d) the perfection
or priority of any security interest or lien upon the Collateral, or (e) the
financial condition of any of Borrowers or other obligor or the performance or
observance by any of Borrowers of its obligations under the Multi-Party
Agreement or any of the Loan Documents. Assignor Lender does not and will not
have any duty, either initially or on a continuing basis, to make any
investigation, evaluation, appraisal of, or any responsibility or liability with
respect to, the accuracy or completeness of any information provided to Assignee
Lender that has been provided to Assignor Lender by any of Borrowers. Nothing in
this Agreement, the Multi-Party Agreement or the Loan Documents shall impose
upon Assignor Lender any fiduciary relationship in respect of Assignee Lender.
5. FAILURE TO ENFORCE
No failure or delay on the part of either party in the exercise of any
power, right, or privilege under this Agreement will impair such power, right,
or privilege or be construed to be a waiver of any default or acquiescence
therein. No single or partial exercise of any such power, right, or privilege
will preclude further exercise thereof or of any other right, power, or
privilege. All rights and remedies existing under this Agreement are cumulative
with, and not exclusive of, any rights or remedies otherwise available.
6. NOTICES
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Unless otherwise specifically provided herein, any notice or other
communication required or permitted to be given will be in writing and addressed
to the respective party as set forth below its signature hereunder, or to such
other address as the party may designate in writing to the other.
7. AMENDMENTS AND WAIVERS
No amendment, modification, termination, or waiver of any provision of
this Agreement will be effective without the written concurrence of Assignor
Lender and Assignee Lender.
8. SEVERABILITY
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law. In the event any
provision of this Agreement is or is held to be invalid, illegal, or
unenforceable under applicable law, such provision will be ineffective only to
the extent of such invalidity, illegality, or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of the
Agreement. In addition, in the event any provision of or obligation under this
Agreement is or is held to be invalid, illegality, or unenforceable in any
jurisdiction, the validity, legality, and enforceability of the remaining
provisions or obligations in any other jurisdictions will not in any way be
affected or impaired thereby.
9. SECTION TITLES
Section and Subsection titles in this Agreement are included for
convenience of reference only, do not constitute a part of this Agreement for
any other purpose, and have no substantive effect.
10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
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11. Entire Agreement
This Agreement and the Intercreditor Agreement of even date herewith
between Assignor Lender and Assignee Lender represent the final agreement
between the parties with respect to the subject matter hereof 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.
12. APPLICABLE LAW; CONSENT TO JURISDICTION AND VENUE
THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. The
parties hereto irrevocably agree that any suit, action or other proceeding
arising out of this Agreement shall be brought only in the courts of the State
of New York or the courts of the United States located within the State of New
York, in each case in the county of New York, consent and submit to the
exclusive jurisdiction of each such court in any such suit, action or proceeding
and waive any objection which they, or any of them, may have to personal
jurisdiction or the laying of venue of any such suit, action or proceeding in
any such courts and agree not to seek to change venue.
13. WAIVER OF JURY TRIAL
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN
ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, ASSIGNOR LENDER AND
ASSIGNEE LENDER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS
WAIVER IS
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INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. ASSIGNOR LENDER AND ASSIGNEE LENDER EACH ACKNOWLEDGE THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS.
ASSIGNOR LENDER AND ASSIGNEE LENDER FURTHER WARRANT AND REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
14. COUNTERPARTS
This Agreement and any amendments, waivers, consents, or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which, when so executed and delivered, will be
deemed an original and all of which shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
"Assignee Lender" "Assignor Lender"
TRANSAMERICA BUSINESS CREDIT STERLING NATIONAL BANK
CORPORATION
By: /s/ Xxx X.XxXxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------- ----------------------
Xxx X. XxXxxxx Xxxxxxx Xxxxxxx
Vice President - Credit Executive Vice President
Notice Address Notice Address
0000 X. Xxxx Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxxxx 000 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn.: Account Executive - BLC Attn.: Xxxxxxx Xxxxxxx
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ACKNOWLEDGEMENT AND WAIVER AND RELEASE
Each of the undersigned Borrowers hereby acknowledges and consents to the
terms of the foregoing Partial Assignment Agreement and confirms that it will
execute any and all amendments, amendments and restatements, and other
instruments and documents necessary or appropriate to evidence or effectuate the
terms of such Partial Assignment Agreement and will take no actions contrary to
the terms of such Partial Assignment Agreement.
Each of the undersigned Borrowers further hereby waives, and releases both
Assignee Lender and Assignor Lender from, any and all claims, causes of actions,
demands, debts, obligations, liabilities, and any and all other claims which any
of Borrowers may now or hereafter have against Assignee Lender or Assignor
Lender arising from any actions taken or omitted to be taken prior to the date
of such Partial Assignment Agreement in connection with the Revolving Credit
Loans, Obligations, Loan Documents, Collateral and Commitments assigned to,
and/or assumed by Assignee Lender under such Partial Assignment Agreement. Each
of the undersigned Borrowers hereby further agrees and acknowledges that
Assignor Lender no longer has any rights, obligations or liabilities regarding
loans to Borrowers with respect to the Unguaranteed Portion of Eligible SBA
Loans and that only Assignee Lender shall have any rights, obligations or
liabilities with respect thereto as more fully set forth in its documents with
Borrowers. Each of the undersigned Borrowers acknowledges and agrees that such
waiver and release extends to
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and includes even those claims which it does not know or suspect to exist in its
favor at the time of executing this waiver and release.
Dated:August 27, 1997 BUSINESS LOAN CENTER, INC.
By: /s/ Xxxxxxxx Xxxxxx
--------------------------
Xxxxxxxx Xxxxxx
Chief Financial Officer
BLC FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxxxxx
President
BUSINESS LOAN CENTER
By: Business Loan Center, Inc.,
a general partner
By: /s/ Xxxxxxxx Xxxxxx
--------------------------
Xxxxxxxx Xxxxxx
Chief Financial Officer
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ACKNOWLEDGMENT OF INSTRUMENTS
STATE OF ___________________ )
) SS.
COUNTY OF __________________ )
On __________________________ before me, the undersigned notary public in
and for said state, personally appeared ________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
ACKNOWLEDGMENT OF INSTRUMENTS
STATE OF ___________________ )
) SS.
COUNTY OF __________________ )
On __________________________ before me, the undersigned notary public in
and for said state, personally appeared ________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their
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signature(s) on the instrument, the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
SCHEDULE 1.1
List of Loan Documents
SEE ATTACHED.
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SCHEDULE 2.1
Calculation of Pro Rata Percentage
A. Aggregate Outstanding
Revolving Credit Loan $______________
B. Aggregate Outstanding
Revolving Credit Loan
Against Unguaranteed
Portion of Eligible
SBA Loans (includes all
Junior Participation Amounts) $_______________
C. Quotient of A divided by B ____%
(the "Pro Rata Percentage")
Calculation of Assigned Amount
Pro Rata Percentage of
Revolving Credit Loan $________________
Pro Rata Percentage of
Accrued Interest ________________
Pro Rata Percentage of
Reimbursable Expenses ________________
Pro Rata Percentage of
Other + or - ________________
================
TOTAL $________________
All of the foregoing amounts have been determined as of the Effective Date.
Payment of the Assigned Amount is to made to:
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Sterling National Bank
ABA No. ________________
Account No. ____________
For Account of Sterling National Bank
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