EXHIBIT 10.3
CONSENT TO ASSIGNMENT AND AGREEMENT
XXXX XXXX XXXXXXXXX AG (the "Supplier") hereby (i) consents to that certain
Assignment of Purchase Agreement dated as of May 12, 1997 by R-B RUBBER
PRODUCTS, INC. ("Assignor") to KEYCORP LEASING LTD. ("Assignee"), pursuant to
which, among other things, Assignor has assigned to Assignee, all of Assignor's
right, title and interest in and to the purchase agreement (the "Purchase
Agreement") dated January 4, 1997 between the Supplier and Assignor (pursuant to
which the Supplier has agreed to sell, and Assignor has agreed to buy, certain
equipment under the terms specified therein), and (ii) confirms to and agrees
with Assignor and Assignee that:
1. OBLIGATIONS OF ASSIGNEE. Assignee shall not be liable for any of the
obligations of Assignor or duties of Assignor under the Purchase Agreement, nor
shall the Purchase Agreement give rise to any duties or obligations whatsoever
on the part of Assignee owing to the Supplier.
2. REPRESENTATIONS AND WARRANTIES. The Supplier represents and warrants
to Assignor that: (a) attached hereto as EXHIBIT A is a true, complete and
accurate copy of the Purchase Agreement, and that such Purchase Agreement is in
full force and effect and has not been modified or amended; (b) the Supplier has
not sent or received any notice of default or any notice for the purpose of
terminating the Purchase Agreement, nor is there, to the best knowledge of the
Supplier, any existing circumstance or event which, but for the passage of time,
giving of notice or otherwise, would constitute a default by the Supplier or
Assignor under the Purchase Agreement; (c) the Supplier will not terminate, or
exercise any remedies under, the Purchase Agreement by reason of any default
thereunder by Assignor without sending to Assignee written notice of such
default (including in such notice the grounds upon which it proposes to
terminate the Purchase Agreement and the proposed termination date), and
availing Assignee of a reasonable time period to cure such default, provided,
however, that such reasonable time period shall not exceed fifteen (15) days (in
the case of payment default), or thirty (30) days (in the case of other
defaults); (d) the Supplier will not, without the prior written consent of
Assignee (1) acknowledge or consent to any sale or pledge of, or any other
assignment of a security interest by Assignor of, any of the right, title or
interest of Assignor in the Purchase Agreement, or (2) agree to any amendment,
modification, release or discharge (in whole or in part) of the Purchase
Agreement; (e) in the event that Assignee succeeds to the interest of Assignor
under the Purchase Agreement, the Supplier shall (1) accept performance by
Assignee, its successors or assigns, under the Purchase Agreement, (2) accept
Assignee, its successors or assigns, as the successor to the rights of Assignor
thereunder, (3) perform the Supplier's obligations and duties under the Purchase
Agreement to Assignee, its successors or assigns, on the same terms and
conditions as set forth in the Purchase Agreement; and (f) the Supplier shall
send copies of all noices of defaults sent by the Supplier to Assignor pursuant
to the Purchase Agreement to Assignee and no such notice shall be effective for
any purpose unless and until a copy thereof shall have been received by
Assignee.
3. NOTICES. All notices and other communications hereunder shall be in
writing and shall be transmitted by hand, overnight courier or certified mail
(return receipt requested), postage prepaid. Such notices and other
communications shall be addressed to the respective party at the following
address or at such other address as any party may from time to time designate by
notice duly given in accordance with this Section:
if to Assignee if to the Supplier
KEYCORP LEASING LTD. XXXX XXXX XXXXXXXXX AG
00 Xxxxx Xxxxxx P.O. Box Xxxxxxxxxxx 0
Xxxxxx, Xxx Xxxx 00000 0000 Xxxxxxxxx, Xxxxxxxxxxx
Attention: Business Coordinator Attention: Xxxx X. Xxxxxx
Xxxxxxxxx: (000) 000-0000 Facsimile: 0041-1-915-00-65
All notices and other communications under this Consent to Assignment shall be
effective upon receipt.
4. MISCELLANEOUS. Time is of the essence with respect to this
Agreement. This Agreement shall be binding upon, and inure to the benefit of,
the parties hereto, their permitted successors and assigns. THIS AGREEMENT IS
BEING DELIVERED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
IN WITNESS WHEREOF, the Supplier has executed this Consent to Assignment
and Agreement as of May 12, 1997.
SUPPLIER:
XXXX XXXX XXXXXXXXX AG
By: ________________________________________
Name:
Title:
EXHIBIT A
THE PURCHASE AGREEMENT
Attached hereto.
ASSIGNMENT OF PURCHASE AGREEMENT
R-B RUBBER PRODUCTS, INC. ("Assignor"), for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants, conveys, transfers, pledges and assigns unto KEYCORP LEASING
LTD., a Delaware corporation ("Assignee"), all of Assignor's right, title and
interest in and to the Purchase Agreement (the "Purchase Agreement") dated as of
January 4, 1997 between Assignor and XXXX XXXX XXXXXXXXX AG (the "Mail
Supplier") and Other Suppliers, pursuant to which Assignor has agreed to
purchase goods and other property (the "Equipment") from the Supplier
(including, but not limited to, the right to become direct purchaser of the
Equipment thereunder), together with all Assignor's right, title and interest in
and to the Equipment, for the purpose of securing the payment and performance of
the Secured Obligations (as defined in the Interim Funding Loan and Security
Agreement dated as of May 12, 1997 between Assignee, as lessor, and Assignor, as
lessee).
Assignor covenants and agrees that it shall not modify, amend, terminate or
release the Purchase Agreement without the prior written consent of Assignee.
Assignor and Assignee mutually agree that the acceptance by Assignee of
this Assignment of Purchase Agreement, with all of the rights, powers,
privileges and authority so created, shall not be deemed or construed to
obligate Assignee to assume any obligation or responsibility of Assignor under
the Purchase Agreement, nor shall Assignee be liable for the nonperformance of
any such obligation or responsibility.
THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK AND SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
IN WITNESS WHEREOF, Assignor has caused this Assignment of Purchase
Agreement to be executed as of May 12, 1997.
ASSIGNOR:
R-B RUBBER PRODUCTS, INC.
By:
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Name:
Title:
