ASSIGNMENT AGREEMENT
This Assignment Agreement ("Agreement") is made by and between (fill in
the blank)("Seller") and BOCCC, Inc. ("Buyer") as of April 9, 1999
("Agreement Date").
1. Definitions
1.1 In this Agreement:
"Affiliate" means "affiliate" as defined in either (a) Bankruptcy Code
section 101(2) or (b) Rule 144 of the Securities Act.
"Assigned Rights" means all right, title, and interest of Seller in, to,
and under all of the following:
(a) the Loan and all other amounts funded by or payable to Seller
under the Credit Documents, and all obligations owed to Seller arising in
connection therewith;
(b) the Credit Documents;
(c) all claims (including "claims" as defined in Bankruptcy Code
section 101(5)), suits, causes of action, and any other right of Seller,
whether known or unknown, against Borrower or any of its agents,
representatives, contractors, advisors, or any other Entity that in any way
is based upon, arises out of, or is related to, any of the foregoing,
including, to the extent permitted under applicable law, all claims
(including contract claims, tort claims, malpractice claims, and claims under
any law governing the purchase and sale of, or indentures for, securities),
suits, causes of action, and any other right of Seller against any attorney,
accountant, financial advisor, or other Entity arising under or in connection
with the Credit Documents;
(d) all cash, securities, or other property, and all setoffs and
recoupments, received, applied, or effected by or for the account of Seller
under the Loan and other extensions of credit under the Credit Documents
(whether for principal, interest, fees, reimbursement obligations, or
otherwise) after the Agreement Date, including all distributions obtained by
or through redemption, consummation of a plan of reorganization,
restructuring, liquidation, or otherwise of Borrower, Guarantor, or the
Credit Documents, and all cash, securities, interest, dividends, and other
property that may be exchanged for, or distributed or collected with respect
to, any of the foregoing;
(e) all Guarantees and all Collateral and security of any kind for
or in respect of the foregoing;
(f) the economic benefit of permanent repayments of principal
received by Seller from and after the Agreement Date; and
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(g) all proceeds of the foregoing.
"Assumed Obligations" means Seller's obligations and liabilities
(excluding, for the avoidance of doubt, the Retained Obligations) with
respect to, or in connection with, the Assigned Rights relating to facts,
events, or circumstances arising or occurring on and after the Closing Date.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, 11 U.S.C.
section 101 et seq.
"Borrower" means The CenterCore Group, Inc., a Delaware corporation.
"Business Day" means any day that is not a Saturday, Sunday, or other
day on which commercial banks are not authorized or required by law to be
closed in the City of New York.
"Closing Date" means the later of the date on which (a) the Parties
execute and deliver this Agreement and (b) Seller receives the Purchase
Price.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means any property, whether real or personal, tangible or
intangible, of whatever kind and wherever located, whether now owned or
hereafter acquired or created, in or over which an Encumbrance has been, or
is purported to have been, granted to or for the benefit of the Seller under
the Credit Documents.
"Credit Documents" means the Subordinated Note and all Guarantees,
security agreements, mortgages, deeds of trust, letters of credit,
reimbursement agreements, and all other documents and agreements to which the
Seller is a party in its or his individual capacity, executed and delivered
in connection with the Subordinated Note.
"Distribution" means any payment or other distribution of cash
(including interest), notes, securities, or other property (including
Collateral) or proceeds under or in respect of the Assigned Rights.
"Encumbrance" means any: (a) mortgage, pledge, lien, security interest,
charge, hypothecation, right of setoff, right of counterclaim, right of
recoupment, or other encumbrance, security agreement, security arrangement,
or adverse claim of any kind; (b) purchase or option agreement or put
arrangement; (c) subordination agreement or arrangement; or (d) agreement to
create or effect any of the foregoing.
"Entity" includes individual, partnership, corporation, limited
liability company, association, estate, trust, business trust, and
Governmental Authority.
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"Federal Funds Rate" means, for any date, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates set by the
Federal Reserve Bank of New York on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by The Wall Street Journal
(Eastern Edition), or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by the
Parties from three Federal funds brokers of recognized standing selected by
the Parties. For a day that is not a Business Day, the Federal Funds Rate
shall be the rate applicable to federal funds transactions on the immediately
preceding day for which such rate is reported.
"Governmental Authority" means any federal, state, or other governmental
department, agency, institution, authority, regulatory body, court, or
tribunal, foreign or domestic, and includes arbitration bodies, whether
governmental, private, or otherwise.
"Guarantor" means an entity providing a Guaranty.
"Guaranty" means a guaranty of any of Borrower's obligations under the
Subordinated Note, including Borrower's obligations in connection with the
Loan.
"Impairment" means any claim, counterclaim, setoff, defense, action,
demand, litigation (including administrative proceedings or derivative
actions), Encumbrance, right (including expungement, avoidance, reduction,
contractual or equitable subordination, or otherwise) or defect, the effect
of which is, or would be, materially and prejudicially to affect the Assigned
Rights in whole or in part.
"Loan" means the loan made under the Subordinated Note.
"Operative Documents" means this Agreement, and any agreement,
instrument, or other document executed and delivered by either Party in
connection with this Agreement.
"Party" means Buyer or Seller, as applicable.
"Pre-Closing-Date Accruals" means all interest and commitment, facility,
and letter of credit and other similar fees payable to Seller under the
Subordinated Note that accrue during the period before (but excluding) the
Closing Date.
"Purchase Price" means $(fill in the blank).
"Retained Obligations" means all obligations and liabilities of Seller
to the Borrower with respect to the Loan or arising out of or related to the
Credit Documents, other than the Assumed Obligations, and includes, without
limitation, Seller's obligations and liabilities that relate to facts,
events, or circumstances arising or occurring before the Closing Date.
"Securities Act" means the Securities Act of 1933, 15 U.S.C. section 77a
et seq., and the rules and regulations promulgated under it.
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"Set-Off" means the set-off against the Subordinated Note by the
Borrower of $(fill in the blank), which represents amounts owed by the Seller
to the Borrower pursuant to promissory notes of the Seller held by the
Borrower.
"Subordinated Note" means, collectively, the Promissory Note of The
CenterCore Group, Inc. dated January 20, 1998, in the original principal
amount of $(fill in the blank), and the Promissory Note of The CenterCore
Group, Inc. executed December 17, 1997, in the original principal amount of
$(fill in the blank), and all amendments, modifications, supplements, or
additions to such notes.
"Transaction Documents" means the Credit Documents and the Operative
Documents.
1.2 Terms that are defined in other provisions of this Agreement have
the meanings given to them in those provisions.
1.3 Terms defined in the Subordinated Note and not otherwise defined in
this Agreement have the same meaning in this Agreement.
2. Assignment and Assumption
In consideration of the mutual covenants and agreements in, and subject
to the terms and conditions of, this Agreement:
(a) subject to Buyer complying with the conditions in Section 3.2,
Seller irrevocably sells, transfers, assigns, grants, and conveys the
Assigned Rights (subject to the Set-Off) to Buyer with effect on and after
the Closing Date;
(b) subject to Seller complying with the conditions in Section 3.1,
Buyer acquires the Assigned Rights (subject to the Set-Off), and assumes and
agrees to perform and comply with the Assumed Obligations, with effect on and
after the Closing Date; and
(c) notwithstanding the foregoing, Buyer assumes no obligations other
than the Assumed Obligations.
This Agreement is intended to, and upon execution hereof and satisfaction of
the conditions precedent set forth in Section 3 shall, effect a true sale of
the Assigned Rights.
3. Conditions Precedent
3.1 Buyer's obligations to pay the Purchase Price to Seller, to acquire
the Assigned Rights, and to assume the Assumed Obligations shall be subject
to the conditions that (a) Seller's representations and warranties in this
Agreement shall have been true and correct in all material respects on the
Agreement Date and the Closing Date, (b) Seller shall have complied in all
material respects with all covenants required by this Agreement to be
complied with by it on or before the Closing Date, (c) Buyer shall have
received duly executed copies of this Agreement, the Subordinated Note duly
endorsed to the Buyer, and (d) all required consents have been obtained.
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3.2 Seller's obligation to sell, transfer, assign, grant, and convey
the Assigned Rights to Buyer on the Closing Date shall be subject to the
conditions that (a) Buyer's representations and warranties in this Agreement
shall have been true and correct in all material respects on the Agreement
Date and the Closing Date, (b) Buyer shall have complied in all material
respects with all covenants required by this Agreement to be complied with by
it on or before the Closing Date, (c) Seller shall have received duly
executed copies of this Agreement, (d) all required consents have been
obtained, and (e) Seller shall have received payment of the Purchase Price
from Buyer.
4. Seller's Representations and Warranties
4.1 Seller represents and warrants to Buyer that:
(a) Seller has full power and authority to execute, deliver, and
perform its obligations under, the Transaction Documents to which it is or
will become a party.
(b) Seller's execution, delivery, and performance of the
Transaction Documents to which it is or will become a party has not resulted,
and, will not result, in a breach of any provision of (i) any statute, law,
writ, order, rule, or regulation of any Governmental Authority applicable to
Seller, (ii) any judgment, injunction, decree or determination applicable to
Seller, or (iii) any contract, indenture, mortgage, loan agreement, note,
lease or other instrument by which Seller may be bound or to which any of the
assets of Seller are subject, in each case as in effect as of the Agreement
Date and the Closing Date.
(c) (i) The Transaction Documents to which Seller is or will
become a party (A) have been (or will be) duly and validly executed and
delivered by Seller and (B) are (or will be) the legal, valid, and binding
obligations of Seller, enforceable by Seller or against Seller (as
applicable) in accordance with their terms, except that such enforceability
against Seller may be limited by bankruptcy, insolvency, or other similar
laws of general applicability affecting the enforcement of creditors' rights
generally and by the court's discretion in relation to equitable remedies;
and
(ii) No notice to, registration with, consent or approval of,
or any other action by, any relevant Governmental Authority or other Entity
(other than Borrower) is or will be required for Seller to execute, deliver,
and perform its obligations under, the Transaction Documents to which Seller
is or will become a party.
(d) Seller is the sole legal and beneficial owner of, and has good
title to, the Assigned Rights, free and clear of any Encumbrance, and the
Assigned Rights are not subject to any prior sale, transfer, assignment, or
participation by Seller or any agreement to assign, convey, transfer, or
participate, in whole or in part.
(e) No proceedings are (i) pending against Seller or (ii) to the
best of Seller's knowledge (without duty of inquiry), threatened against
Seller before any relevant Governmental Authority that, in the aggregate,
will materially and adversely affect (A) the Assigned Rights or (B) any
action taken or to be taken by Seller under this Agreement.
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(f) The outstanding principal, interest, fees and other amounts of
the Loan and the Assigned Rights as of the Closing Date are approximately
$(fill in the blank).
(g) There is no funding liability or obligation of any kind
(whether fixed, contingent, conditional, or otherwise) in respect of the
Assigned Rights that Seller or Buyer is or shall be required to pay or
otherwise perform that Seller has not paid or otherwise performed in full,
and Buyer shall have no funding liability or obligation of any kind under or
in connection with the Assigned Rights.
(h) Seller has performed, and has complied with, in all material
respects, all obligations required to be performed or complied with by it
under the Credit Documents, and is not in breach in any material respect of
any provisions of the Credit Documents.
(i) No broker, finder, or other Entity acting under Seller's
authority is entitled to any broker's commission or other fee in connection
with the transactions contemplated by this Agreement for which Buyer could be
responsible. If a broker, finder, or other Entity acting under Seller's
authority was involved in this transaction, Seller represents and warrants
that such broker, finder, or other Entity was and is the representative of
Seller, not of Buyer; that such broker, finder, or other Entity had no
authority to make any statements on behalf of Buyer- that Seller had the
opportunity to review all documentation independently of such broker, finder,
or other Entity; that Seller has no recourse against Buyer for any
misstatements that may have been made by such broker, finder, or other
Entity; and that Seller is solely responsible for any fees due to such
broker, finder, or other Entity arising out of this transaction.
(j) Seller originally made the Loan.
(k) Seller has not effected or received the benefit of any setoff
against the Borrower on account of the Assigned Rights, except the Set-Off.
(l) Seller has not received any written notice that (i) any
payment or other transfer made to or for the account of Seller from or on
account of Borrower under the Assigned Rights is or may be void or voidable
as an actual or constructive fraudulent transfer or as a preferential
transfer, or (ii) the Assigned Rights, or any portion of them, are void,
voidable, unenforceable or subject to any Impairment.
(m) Seller acknowledges that the consideration paid under this
Agreement for the purchase of the Assigned Rights and the assumption of the
Assigned Obligations may differ both in kind and amount from any
Distributions.
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(n) Seller (i) has adequate information concerning Borrower's
business and financial condition to make an informed decision regarding the
sale of the Assigned Rights and the retention of the Retained Obligations,
and (ii) has independently and without reliance upon Buyer, and based on such
information as Seller has deemed appropriate, made its own analysis and
decision to enter into this Agreement, except that Seller has relied upon
Buyer's express representations, warranties, covenants, and indemnities in
this Agreement. Seller acknowledges that Buyer has not given Seller any
investment advice, credit information, or opinion on whether the sale of the
Assigned Rights or the retention of the Retained Obligations is prudent.
(o) Seller acknowledges that (i) Buyer currently may have, and
later may come into possession of, information on the Assigned Rights,
Borrower, or Borrower's Affiliates that is not known to Seller and that may
be material to a decision to sell the Assigned Rights ("Seller Excluded
Information"), (ii) Seller has determined to sell the Assigned Rights
notwithstanding its lack of knowledge of the Seller Excluded Information, and
(ill) Buyer shall have no liability to Seller, and Seller waives and releases
any claims that it might have against Buyer or any Buyer Indemnitee, whether
under applicable securities laws or otherwise, with respect to the
nondisclosure of the Seller Excluded Information; provided, however, that the
Seller Excluded Information shall not and does not affect the truth or
accuracy of Buyer's representations or warranties in this Agreement.
(p) Without characterizing the Assigned Rights as a "security"
within the meaning of applicable securities laws, Seller has not made any
offers to sell, or solicitations of offers to buy, any portion of the
Assigned Rights in violation of any applicable securities laws.
(q) If Buyer has requested them, Seller has provided to Buyer true
and complete copies of the Credit Documents.
(r) Seller has received no payments or other transfers from or on
account of Borrower in respect of the Assigned Rights or otherwise on or
after the 366th day preceding the Agreement Date, except the Set-Off.
4.2 Except as expressly stated in this Agreement, Seller makes no
representations or warranties, express or implied.
4.3 Seller acknowledges that (a) its sale of the Assigned Rights to
Buyer is irrevocable; (b) Seller shall have no recourse to the Assigned
Rights; and (c) Seller shall have no recourse to Buyer, except for (i)
Buyer's breaches of its representations, warranties, or covenants, and (ii)
Buyer's indemnities, expressly stated in this Agreement.
5. Buyer's Representations and Warranties
5.1 Buyer represents and warrants to Seller that:
(a) Buyer (i) is duly organized and validly existing under the
laws of its jurisdiction of organization or incorporation, (ii) is in good
standing under such laws and (iii) has full power and authority to execute,
deliver, and perform its obligations under, the Transaction Documents to
which it is or will become a party.
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(b) Buyer's execution, delivery, and performance of the
Transaction Documents to which it is or will become a party has not resulted,
and will not result, in a breach of any provision of (i) Buyer's
organizational documents, (ii) any statute, law, writ, order, rule, or
regulation of any Governmental Authority applicable to Buyer, (iii) any
judgment, injunction, decree or determination applicable to Buyer, or (iv)
any contract, indenture, mortgage, loan agreement, note, lease, or other
instrument by which Buyer may be bound or to which any of the assets of Buyer
are subject, in each case as in effect as of the Agreement Date and the
Closing Date.
(c) (i) The Transaction Documents to which Buyer is or will
become a party (A) have been (or will be) duly and validly authorized,
executed, and delivered by Buyer, and (B) are (or will be) the legal, valid,
and binding obligations of Buyer, enforceable against Buyer in accordance
with their terms, except that such enforceability may be limited by
bankruptcy, insolvency, or other similar laws of general applicability
affecting the enforcement of creditors' rights generally and by the court's
discretion in relation to equitable remedies; and
(ii) except as provided in the Credit Documents, no notice
to, registration with, consent or approval of, or any other action by, any
relevant Governmental Authority or other Entity is or will be required for
Buyer to execute, deliver, and perform its obligations under, the Transaction
Documents to which Buyer is or will become a party.
(d) Without characterizing the Assigned Rights as a "security"
within the meaning of applicable securities laws, Buyer is not purchasing the
Assigned Rights with a view towards the sale or distribution thereof in
violation of the Securities Act; provided, however, that Buyer may resell the
Assigned Rights if such resale is in accordance with the Securities Act and
in compliance with Section 10 hereof.
(e) Buyer acknowledges that the consideration paid under this
Agreement for the purchase of the Assigned Rights and the assumption of the
Assumed Obligations may differ both in kind and amount from any
Distributions.
(f) Buyer (i) is a sophisticated Entity with respect to the
purchase of the Assigned Rights and the assumption of the Assumed
Obligations, (ii) is able to bear the economic risk associated with the
purchase of the Assigned Rights and the assumption of the Assumed
Obligations, (iii) has adequate information concerning Borrower's business
and financial condition to make an informed decision regarding the purchase
of the Assigned Rights and the assumption of the Assumed Obligations, (iv)
has such knowledge and experience, and has made investments of a similar
nature, so as to be aware of the risks and uncertainties inherent in
purchases of rights and assumptions of liabilities of the type contemplated
in this Agreement, and (v) has independently and without reliance upon
Seller, and based on such information as Buyer has deemed appropriate, made
its own analysis and decision to enter into this Agreement, except that Buyer
has relied upon Seller's express representations, warranties, covenants, and
indemnities in this Agreement. Buyer acknowledges that Seller has not given
Buyer any investment advice, credit information, or opinion on whether the
purchase of the Assigned Rights or the assumption of the Assumed Obligations
is prudent.
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(g) Except as otherwise provided in this Agreement, Buyer has not
relied, and will not rely, on Seller to furnish or make available any
documents or other information regarding the credit, affairs, financial
condition, or business of Borrower, or any other matter concerning Borrower.
(h) Buyer acknowledges that (i) Seller currently may have, and
later may come into possession of, information on the Assigned Rights,
Borrower, or Borrower's Affiliates that is not known to Buyer and that may be
material to a decision to acquire the Assigned Rights ("Buyer Excluded
Information"), (ii) Buyer has determined to purchase the Assigned Rights and
assume the Assumed Obligations notwithstanding its lack of knowledge of the
Buyer Excluded Information, and (iii) Seller shall have no liability to
Buyer, and Buyer waives and releases any claims that it might have against
Seller or any Seller Indemnitee, whether under applicable securities laws or
otherwise, with respect to the nondisclosure of the Buyer Excluded
Information; provided, however, that the Buyer Excluded Information shall not
and does not affect the truth or accuracy of Seller's representations or
warranties in this Agreement.
(i) No broker, finder, or other Entity acting under Buyer's
authority is entitled to any broker's commission or other fee in connection
with the transactions contemplated by this Agreement for which Seller could
be responsible. If a broker, finder, or other Entity acting under Buyer's
authority was involved in this transaction, Buyer represents and warrants
that such broker, finder, or other Entity was and is the representative of
Buyer, not of Seller; that such broker, finder, or other Entity had no
authority to-make any statements on behalf of Seller; that Buyer had the
opportunity to review all documentation independently of such broker, finder,
or other Entity; that Buyer has no recourse against Seller for any
misstatements that may have been made by such broker, finder, or other
Entity; and that Buyer is solely responsible for any fees due to such broker,
finder, or other Entity arising out of this transaction.
(j) There are no fees, compensation, or commissions payable by
Seller to or for the benefit of any Entity engaged or retained by, through or
on behalf of Buyer with respect to the transfer of the Assigned Rights.
(k) Buyer acknowledges that (i) if it has requested them, it has
received from Seller copies of the Credit Documents, and (ii) it is assuming
all risk with respect to the accuracy or sufficiency of such documents and
information.
(l) Buyer is an "accredited investor" within the meaning of
Section 2(15) of the Securities Act.
(m) Buyer has not breached any term or condition of any
confidentiality agreement executed by Buyer in connection with this
transaction.
(n) No proceedings are pending or, to the best of Buyer's
knowledge, threatened against or affecting Buyer before any Governmental
Authority that, in the aggregate, will materially and adversely affect any
action taken or to be taken by Buyer under this Agreement.
5.2 Except as expressly stated in this Agreement, Buyer makes no
representations or warranties, express or implied.
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5.3 Buyer acknowledges that (a) Seller's sale of the Assigned Rights to
Buyer, and Buyer's assumption of the Assumed Obligations, are irrevocable,
and (b) Buyer shall have no recourse to Seller except for (i) Seller's
breaches of its representations, warranties, or covenants, and (ii) Seller's
indemnities, expressly stated in this Agreement.
6. Indemnification
6.1 Seller shall indemnify, defend, and hold Buyer and its officers,
directors, agents, partners, members, controlling Entities, and employees
(collectively, "Buyer Indemnitees") harmless from and against any liability,
claim, cost, loss, judgment, damage, or expense (including reasonable
attorneys' fees and expenses) that Buyer Indemnitees incur or suffer as a
result of, or arising out of, (a) Seller's breach of any of Seller's
representations, warranties, covenants, or agreements in this Agreement, or
(b) any obligation of Buyer to disgorge, in whole or in part, or otherwise
reimburse Borrower, Agent or any other Entity for, any payments, property
(including Collateral), setoffs, or recoupments received, applied, or
effected by or for the account of Seller, under or in connection with the
Assigned Rights or otherwise from, against, or on account of Borrower;
provided that, the foregoing notwithstanding, (i) Seller shall have no
obligation to Buyer Indemnitees under this Section 6.1 with respect to a
decrease in the value of any claim Buyer may have against Borrower in
connection with the Assigned Rights so long as Buyer is not required to
affirmatively pay any amount to any third party in connection with such
decrease, provided, however, that the Buyer Indemnitees shall be entitled to
indemnification hereunder for all defense costs and expenses (including, but
not limited to, reasonable attorneys' fees and expenses) incurred in
connection therewith, and (ii) the amount of Seller's liability pursuant to
Section 6.1(a) shall not exceed the Purchase Price, and the amount of
Seller's liability under Section 6.1(b) shall not exceed the amount of the
Set-Off.
6.2 Buyer shall indemnify, defend, and hold Seller harmless from and
against any liability, claim, cost, loss, judgment, damage, or expense
(including reasonable attorneys' fees and expenses) that Seller incurs or
suffers as a result of or arising out of (a) Buyer's breach of any of Buyer's
representations, warranties, covenants, or agreements in this Agreement, (b)
Buyer's actions after the Closing Date with respect to the Assigned Rights,
or (c) Seller acting or refraining to act, pursuant to any direction of (i)
Buyer, or (ii) the Majority Holders (as defined in Section 11); provided,
however, that Buyer's share of the indemnity under clause (b)(ii) shall be
limited to a fraction, the numerator of which is (A) the outstanding
principal amount of the Assigned Rights or (B) if Seller has consented to
transfers of the Assigned Rights (or a portion thereof) pursuant to Section
10.1, the then outstanding principal amount of the claims beneficially held
by Buyer in respect of which the action involved is taken by Seller, and the
denominator of which is the then aggregate outstanding principal amount of
all claims in respect of which the action involved is taken by Seller.
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6.3 If a third party commences any action or makes any demand against
either Party for which such Party ("Indemnified Party") is entitled to
indemnification under this Agreement, such Indemnified Party will promptly
notify the other Party ("Indemnifying Party") in writing of such action or
demand. The Indemnifying Party may, at its own expense and without limiting
its obligation to indemnify the Indemnified Party, participate in the defense
of such action with counsel reasonably satisfactory to the Indemnified Party,
or the Indemnifying Party may, at its own expense and without limiting its
obligation to indemnify the Indemnified Party, assume the defense of such
action with counsel reasonably acceptable to the Indemnified Party. In any
event, the Party that has assumed the defense of such action shall provide
the other Party with copies of all notices, pleadings, and other papers filed
or served in such action; provided, however, that if the Indemnified Party
assumes the defense of the action and fails to provide prompt notice to the
Indemnifying Party, such failure shall not limit in any way the Indemnifying
Party's obligation to indemnify the Indemnified Party except to the extent
that such failure materially prejudices the Indemnifying Party's ability to
defend the action. No settlement or adjustment shall be made without the
Indemnified Party's prior written consent, which consent (a) will not be
unreasonably withheld if the settlement or adjustment involves only the
payment of money damages by the Indemnifying Party and (b) may be withheld
for any reason if the settlement or adjustment involves performance or
admission by the Indemnified Party.
6.4 Each indemnity in this Agreement is a continuing obligation,
separate and independent from the other obligations of the parties and
survives termination of this Agreement, and it is not necessary for a Party
to incur expense or make payment before enforcing a right of indemnity
conferred by this Agreement.
7. Costs and Expenses
The Parties agree to bear their own respective legal and other costs and
expenses for preparing, negotiating, executing, and implementing this
Agreement and any related documents and consummating the transactions
contemplated under this Agreement.
8. Distributions; Payments
8.1 (a) If any time after the Closing Date, Seller receives a payment
from Borrower in respect of unpaid interest or fees payable to Seller under
the Credit Documents, Seller shall (A) accept and hold such payment for the
account and sole benefit of Buyer, (B) have no equitable or beneficial
interest in such payment, and (C) deliver such payment (free of any
withholding, setoff, recoupment, or deduction of any kind) promptly (but in
no event later than two Business Days after the date on which Seller receives
it) to Buyer in the same form received and, when necessary or appropriate,
with Seller's endorsement (without recourse, representation, or warranty),
except to the extent prohibited under any applicable law, rule, or order. If
Seller fails to make such delivery of such payment to Buyer within two
Business Days after receiving it, under Section 8.3 the delivery of such
payment by Seller shall be deemed to have been due on the date Seller
received it.
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(b) If at any time after the Closing Date, Seller receives a
Distribution, Seller shall (a) accept and hold the Distribution for the
account and sole benefit of Buyer, (b) have no equitable or beneficial
interest in the Distribution, and (c) deliver the Distribution (free of any
withholding, setoff, recoupment, or deduction of any kind) promptly (but in
no event later than two Business Days after the date on which Seller receives
it) to Buyer in the same form received and, when necessary or appropriate,
with Seller's endorsement (without recourse, representation, or warranty),
except to the extent prohibited under any applicable law, rule, or order. If
Seller fails to make such delivery of a Distribution to Buyer within two
Business Days after receiving it, under Section 8.3 the delivery of such
Distribution by Seller shall be deemed to have been due on the date Seller
received it.
(c) If the Distributions include securities, Seller shall, to the
extent permissible by law, endorse (without recourse) or cause to be
registered in Buyer's name, or such name as Buyer may direct (at Buyer's sole
expense) in writing and deliver such securities to Buyer or to such Entity as
Buyer may direct as soon as practicable. Pending such transfer, Seller shall
hold the same as agent for Buyer and Seller shall have no legal, equitable,
or beneficial interest in any such Distribution. Buyer is entitled to
receive any Distributions to be remitted by Seller under this Agreement
without the withholding of any tax. If Seller receives any Distributions
which it is required to remit to Buyer, Buyer will furnish to Seller such
forms, certifications, statements, and other documents as Seller may
reasonably request in writing to evidence Buyer's exemption from the
withholding of any tax imposed by the United States of America or any other
jurisdiction, whether domestic or foreign, or to enable Seller to comply with
any applicable laws or regulations relating thereto, and Seller may refrain
from remitting such Distributions until such forms, certifications,
statements, and other documents have been so furnished.
(d) If any Distributions received by Seller and transferred to
Buyer pursuant to Section 8.1(b) have been made to Seller wrongfully or in
error, and are required to be returned or disgorged by Seller, Buyer shall
promptly return such payments or distributions to Seller together with all
related interest and charges payable by Seller.
8.2 All payments made by Buyer to Seller or by Seller to Buyer under
this Agreement shall be made in the lawful currency of the United States by
wire transfer of immediately available funds to Seller or Buyer, as
applicable.
8.3 With respect to the payment of any funds or other property under
this Agreement (including the delivery of Distributions under Section 8.1),
whether from Seller to Buyer or from Buyer to Seller, the Party failing to
make full payment of any amount when due shall, upon demand by the other
Party, pay such defaulted amount together with interest on it (for each day
from (and including) the date when due to (but excluding) the date when
actually paid) at a rate equal to the Federal Funds Rate plus one percent.
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9. Notices
9.1 All communications between the Parties or notices or other
information sent under this Agreement shall be in writing, hand-delivered, or
sent by ordinary mail or overnight courier, telex, or telecopier, addressed
to the relevant Party at its address below or at such other address as such
Party may request in writing. All such communications and notices shall be
effective upon receipt.
If to Seller, to: If to Buyer, to:
(Fill in blank) Xx. Xxxx Xxxxxxx
BOCCC, Inc.
0000 Xxxx 000 Xxxxx
Xxxx, Xxxx 00000
9.2 After the Closing Date, if Seller receives any notices,
correspondence, or other documents in respect of the Assigned Rights or any
Credit Document, it shall promptly forward them to Buyer.
10. Further Transfers
10.1 Buyer may not sell, assign, grant a participation in, or otherwise
transfer (a) the Assigned Rights, this Agreement, its rights under this
Agreement, or any interest in the Assigned Rights, (b) any rights acquired by
Buyer under that certain Assignment Agreement between Buyer and Core
Technologies, Inc. of even date herewith relating to the purchase by Buyer of
certain debt of Borrower held by Core Technologies, Inc., or (c) any rights
acquired by Buyer under that certain Assignment Agreement of even date
herewith between Buyer and JGFS, Inc. relating to the purchase by Buyer of
certain debt of Borrower held by JGFS, Inc., unless, in each case, Seller
otherwise consents in writing (which consent Seller shall not unreasonably
withhold or delay).
10.2 Seller may not assign its rights, or delegate its obligations,
under this Agreement unless Buyer otherwise consents in writing (which
consent Buyer shall not unreasonably withhold or delay).
11. Voting
On and after the Closing Date, (a) Buyer shall have sole authority to
exercise all voting and other rights and remedies under the Assigned Rights,
and (b) if for any reason Seller is entitled to exercise any such rights
(including the right to vote) after the Closing Date, Seller (i) shall not
take any action with respect to the Assigned Rights other than in accordance
with the prior written instructions of Buyer, and (ii) shall take (or refrain
from taking) any action with respect to the Assigned Rights in accordance
with the prior written instructions of Buyer except (A) as prohibited under
applicable law, rule, order or contract, or (B) if following such
instructions might (in Seller's reasonable determination) expose Seller to
any obligation, liability, or expense that in Seller's reasonable judgment is
material and for which Seller has not been provided adequate indemnity;
provided, however, that if the vote or other action involved is not divisible
or may not be cast or taken separately in respect of the Assigned Rights (or
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the relevant portion thereof) and any other claim against the Borrower or any
other person (whether or not included in the Assigned Rights), then Seller
shall take or refrain from taking such action in accordance with instructions
received by Seller and believed by Seller in good faith to have been given by
the then current holders (including, as the case may be, Seller) of more than
50% of the aggregate principal amount of the claims then outstanding in
respect of which such action is to be taken by Seller (the "Majority
Holders"). For purposes of determining the Majority Holders pursuant to the
preceding sentence, Seller shall only be required to obtain instructions
relating to any action to be taken in respect of the Assigned Rights from (x)
the Buyer or (y) if Seller has consented to transfers of the Assigned Rights
(or a portion thereof) pursuant to Section 10.1, the then current holders of
the aggregate principal amount of the claims outstanding in respect of which
such action is to be taken by Seller.
12. Exercise of Rights
12.1 No amendment of any provision of this Agreement shall be effective
unless it is in writing and signed by the Parties and no waiver of any
provision of this Agreement, nor consent to any departure by either Party
from it, shall be effective unless it is in writing and signed by the
affected Party, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
12.2 No failure on the part of a Party to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver hereof
by such Party, nor shall any single or partial exercise of any right under
this Agreement preclude any other or further exercise thereof or the exercise
of any other right. The rights and remedies of each Party provided herein
(a) are cumulative and are in addition to, and are not exclusive of, any
rights or remedies provided by law (except as otherwise expressly set forth
in this Agreement) and (b) are not conditional or contingent on any attempt
by such Party to exercise any of its rights under any other related document
against the other Party or any other Entity.
13. Survival; Successors and Assigns
13.1 All representations, warranties, covenants, indemnities, and other
provisions made by the Parties shall be considered to have been relied upon
by the Parties, shall be true and correct as of the Closing Date, and shall
survive the execution, delivery, and performance of this Agreement and the
other Operative Documents.
13.2 This Agreement, including the representations, warranties,
covenants, and indemnities in it, shall inure to the benefit of, be binding
upon, and be enforceable by and against the Parties and their respective
successors and permitted assigns.
14. Further Assurances
Each Party agrees (a) to execute and deliver, or to cause to be executed
and delivered, all such instruments, and (b) to take all such actions as the
other Party may reasonably request, to effectuate the intent and purposes,
and to carry out the terms, of this Agreement, including the procurement of
any third-party consents.
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15. Disclosure
15.1 Each Party agrees that, without the prior consent of the other
Party, it shall not disclose the contents of this Agreement (including the
Purchase Price) to any Entity, except that any Party may make any such
disclosure (a) as required to implement or enforce this Agreement, (b) if
required to do so by any law, court, or regulation, (c) to any Governmental
Authority or self-regulatory Entity having or asserting jurisdiction,
including, but not limited to, the Securities and Exchange Commission
pursuant to reporting obligations applicable to such Party, (d) if its
attorneys advise it that it has a legal obligation to do so or that failure
to do so may resort in it incurring a liability to any other Entity, or (e)
to its professional advisors and auditors.
15.2 Buyer may disclose the contents of this Agreement (but not the
Purchase Price) to any proposed transferee, assignee, participant, or other
Entity proposing to enter into contractual relations with Buyer in respect of
the Assigned Rights or any part of them.
15.3 Buyer agrees to comply with the requirements, if any, of the
Credit Documents regarding confidentiality.
16. Parties' Other Relationships
16.1 Each Party and any of its Affiliates may engage in any kind of
lawful business or relationship with Borrower or its Affiliates without
liability to the other Party, or any obligation to disclose such business or
relationship to the other Party; provided, however, that in connection with
any such business or relationship of Seller, Seller shall not claim that, or
take any position contrary to the position that, (i) the obligation of
Borrower under the Subordinated Note, as assigned to Buyer pursuant to this
Agreement, is not a valid, binding or enforceable obligation of Borrower, or
(ii) the Assigned Rights have not been validly transferred to Buyer.
16.2 Buyer shall not (a) disclose to Borrower's other creditors any
information concerning Seller's business or relationships with Borrower
obtained by Buyer by reason of its purchase of the Subordinated Note or by
reason of Buyer's status as an Affiliate of Mity-Lite, Inc., nor (b) take any
action which (i) involuntarily initiates an insolvency proceeding under any
state or federal law against Borrower or Seller, or (ii) voluntarily
initiates or authorizes a creditor representative to initiate legal action,
e.g. a lawsuit, motion or other similar proceeding, against Seller relating
to Seller's relationship to Borrower prior to the Closing Date, provided that
in no event shall the foregoing prohibit Buyer from initiating legal action
against Seller to enforce the provisions of this Agreement. The provisions
of clause (a) of this Section 16.2 shall not apply to information generally
available to the public or available from sources other than Borrower,
Seller, or an affiliate of Mity-Lite, Inc., information disclosed pursuant to
a request or an order of a court of competent jurisdiction or a Governmental
Authority, or to information required to be disclosed by Mity-Lite, Inc. or
its Affiliates pursuant to reporting obligations to the Securities and
Exchange Commission.
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17. Entire Agreement
This Agreement constitutes the entire agreement of the Parties about its
subject matter, and supersedes all previous and contemporaneous negotiations,
promises, covenants, agreements, understandings, and representations on that
subject, all of which have become merged and finally integrated into this
Agreement.
18. Counterparts; Telecopies
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the
same instrument. Transmission by fax of an executed counterpart of this
Agreement shall be deemed to constitute due and sufficient delivery of such
counterpart. Each Party shall deliver to the other an original counterpart
of this Agreement (and, upon the request of either Party, any other document)
promptly after delivery of the fax; provided, however, that the failure by
either Party to so deliver an original counterpart shall not affect the
sufficiency of a fax of such counterpart (and the fact that such fax
constitutes the due and sufficient delivery of such counterpart), as provided
in the second sentence of this paragraph.
19. Relationship Between Purchaser and Seller
The relationship between Seller and Buyer shall be that of seller and
buyer. Neither is a trustee or agent for the other, nor does either have
fiduciary obligations to the other. This Agreement shall not be construed to
create a partnership or joint venture between the Parties.
20. Severability
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity, or enforceability under the law of any other jurisdiction nor the
legality, validity, or enforceability of any other provision.
21. Governing Law
THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR INDIRECTLY BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY), INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY, AND PERFORMANCE, SHALL IN ALL RESPECTS
BE GOVERNED BY, AND INTERPRETED, CONSTRUED, AND DETERMINED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES OF SUCH STATE).
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22. Waiver of Trial by Jury
THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY
OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
23. Jurisdiction
23.1 The Parties irrevocably and unconditionally submit to and accept
the exclusive jurisdiction of any United States federal court sitting in the
State of Utah, New Jersey or Delaware, for any action, suit or proceeding
arising out of or based upon this Agreement or any matter relating to it, and
waives any objection it may have to the laying of venue in any such court or
that such court is an inconvenient forum or does not have personal
jurisdiction over it.
23.2 The Parties irrevocably agree that, should either Party institute
any legal action or proceeding in any jurisdiction (whether for an
injunction, specific performance, damages or otherwise) in relation to this
Agreement, no immunity (to the extent that it may at any time exist, whether
on the grounds of sovereignty or otherwise) from such action or proceeding
shall by claimed by it or on its behalf, any such immunity being hereby
irrevocably waived, and each Party irrevocably agrees that it and its assets
are, and shall be, subject to such legal action or proceeding in respect of
its obligations under this Agreement.
24. Interpretation
24.1 The terms defined in Section 1 have the meanings therein specified
for this Agreement. Capitalized terms used in this Agreement but not
otherwise defined herein shall have the meaning ascribed to such terms in the
Subordinated Note.
24.2 This Agreement includes any other documents attached as exhibits
to the Agreement.
24.3 Terms used in the singular or the plural include the plural and
the singular, respectively; "includes" and "including" are not limiting; and
"or" is not exclusive.
24.4 Any reference to a Party includes the Party's successors and
permitted assigns.
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24.5 Unless otherwise indicated, any reference to:
(a) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may at any time before
the Closing Date be, in effect as modified, amended, or supplemented as of
the Closing Date; and
(b) a statute, law, order, rule, or regulation shall be construed
as a reference to such statute, law, order, rule, or regulation as it may
have been, or may at any time before the Closing Date be, in effect as
modified, amended, or supplemented as of the Closing Date.
24.6 Section and captions are included solely for convenience of
reference and are not intended to affect the interpretation of any provisions
of this Agreement.
24.7 This Agreement shall be deemed to have been jointly drafted, and
no provision of it shall be interpreted or construed for or against any Party
because such Party purportedly prepared or requested such provision, any
other provision, or the Agreement as a whole.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement by
their duly authorized officers as of the date first set forth above.
SELLER
Name:
BOCCC, INC.
By: Xxxxxxx X. Xxxxxx
Title: President
The Borrower hereby consents to the transfer of the Assigned Rights pursuant
to this Agreement.
The CenterCore Group, Inc.
By:
Name:
Title:
