Looking for an agreement? Search from over 1 million agreements now.

Assignment And Assumption Agreement

This is an actual contract by Arlen.

Save time and money with our Premium Packages.
Buy all (8) recommended agreements for
$140.00 (50% savings)
Agreement Preview
Sectors: Automotive and Transport Equipment
Governing Law: New York, View New York State Laws
Effective Date: January 16, 1996
Related Agreement Types:
Search This Document
EXHIBIT 10.16


2
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 Arlen Holdings Corp. and, prior to that, as Arlen Automotive, Inc.), a Delaware corporation ("Assignee").


WHEREAS, pursuant to certain promissory notes listed on Exhibit A annexed hereto (collectively, the "Loan Documents"), Arthur G. Cohen (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 3 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 Curtis Holding Corporation, a New Jersey corporation ("Curtis Holding"), as is set forth in the Stock Pledge Agreement (Curtis Holding) dated the date hereof between Assignee and Assignor, and shall cause Curtis Holding to pledge to the Bank such number of shares of common stock of Curtis Partition Corporation, a New Jersey corporation, as is set forth in the Stock Pledge Agreement (Curtis Partition) dated the date hereof between Curtis 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


2 4 (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, Arthur G. Cohen as Agent, Barry J. Levien and Philip J. Levien (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


3 5 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 Allan V. Rose ("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 Cohen 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


4 6 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:


5 7
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.


-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |

Privacy Policy   Terms of Service  3.85.10.62