Free Opening Brief in Support - District Court of Delaware - Delaware

- t `“ V. Case 1:04-cv-01551-JJF Document 354-25 Filed O9/28/2007 Page 1 of 3
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ASSIGNMENT AND ACCEPTANCE OF LOAN AND SECURITY AGREEMENT
Reference is made to thefLoan and Security Agreement dated as of December 31,
1995 between STUDENT FINANCE CORPORATION ("Borrower"), and ROBERT L. BAST
as LENDER (as amended, modified and supplemented to date, the "Loan Agreement").
Capitalized terms used herein and not otherwise defined are as defined in the Loan Agreement.
This Assignment and Acceptance Agreement (the "Assignment and Acceptance")
memorializes the agreements entered into in connection with the consensual execution by
Assignor against the Assignee on June 14, 2002 under the Assignee’s guarantee ofthe Loan
Agreement pursuant to the Guarantee.
Robert L. Bast (the "Assignor") and Andrew N. Yao (the"Assignee") agree as
follows:
l. Subj ect to the provisions hereinafter set forth, the Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
WITHOUT RECOURSE, in the maximum Principal Amount of $750,000 the Loan Agreement
and the Debt Instrrunent together with all interest and fees due thereafter as provided in the Loan
Agreement. The effective date of this Assignment and Acceptance shall be lime I4, 2002 (the
"Effective Date").
2. The Assignor makes no representations nor any warranties and assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Loan Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement or any other instrument or document
furnished pursuant thereto, or the creation, perfection, priority or enforceability of any Lien or
the existence, nature, value or suiiiciency to any Collateral; or (ii) the Hnancial condition of the
Borrower or the performance or observance by the Borrower or any subsidiary of the Borrower
of any of its obligations under the Loan Agreement or any other instrument or document
fiunished pursuant thereto.
‘ 3. The Assignee (i) confirms that he has received a copy of the Loan Agreement,
together with copies of the financial statements referred to in Section 4.0l(h) of the Loan
Agreement and such other documents and information as he has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment of Loan and Security Agreement
(the "Assignment and Acceptance"); (ii) agrees that he will, independently and without reliance
upon the Assignor or any other person, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Agreement; (iii) agrees that he will perform in accordance with his terms
all ofthe obligations which by the terms ofthe Loan Agreement are required to be perfomred by
Lender; and (v) specifies as its address for notices the address set forth beneath his name on the
signature pages hereof
A 4. On the Effective Date, the Assignee (a) transferred, assigned and conveyed to
the Assignor all of the Assignee’s right, title and interest in 12 shares of DHP G.P. Inc.; 12
shares of One Sunmrit Place G.P. Inc., I2 shares of Premier Education Group G.P. Inc. (said
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Y shares are herein collectively referred to as the "Stock") in partial satisfaction ofthe Assignor’s
obligations under the Guarantee. Assignee further agrees to pay to Assignor the excess of (i) all
principal and accrued interest and fees due under the Loan Agreement from the date of the loan
through and including the date of disposition of the Stock as calculated under the Loan
Agreement (including, but not limited to, default rates of interest, exit fees and the like) over (ii)
the amotmt received on the disposition of the Stock and any distributions thereon. Such amount
shall be payable within ten (10) days of notice by the Assignor to the Assignee of the amount
. due, which amount may not be contested by the Assignee. Assignor agrees to pay to Assignee
within ten (I0) days of the sale of the Stock the excess of (i) the amount received on the
disposition of the Stock and any distributions thereon over (ii) all principal and accrued interest
and fees due under the Loan Agreement Hom the date of the loan through and including the date
of disposition of the Stock as calculated under the Loan Agreement (including, but not limited to,
default rates of interest, exit fees and the like).
5. As of the Effective Date, (i) the Assignee shall be substituted for the Lender
tmder the Loan Agreement and, to the extent provided in this Assignment and Acceptance, have
_ the rights and obligations of the Lender thereunder, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish Assignor’s rights and be released from
his obligations under the Loan Agreement.
6. The assignment by the Assignor hereunder is expressly conditioned upon
payment by the Assignee to the Assignor of the consideration set forth in Section 4 above and
should any of the consideration be disgorged, taken as a preference amount or not paid or
subsequently taken for any other reason, the sale, assignment and assumption made pursuant to
this Assigmnent and Acceptance shall be void ab initio.
7. Miscellaneous.
a. Indemnity. Except to the extent the Assignor is entitled to and
receives indemnification from some other Person, the Assignee agrees to indemnify and hold
harmless the Assignor from and against any and all losses, costs, expenses (including, without
limitation, reasonable attomeys’ fees) and liabilities incurred by the Assignor in comrection with
or arising in any manner from the performance by the Assignee of any obligation assumed by the
Assignee wider this Assignment and Acceptance and from any action or other suit brought
against the Assignor by reason of the Assignor entering this Assignment and Acceptance.
‘ b. Notices. Notices shall be given under this Assignment and
Acceptance in the manner set forth in the Loan Agreement. The addresses for notices shall be
those set forth below the respective signatures of the Assignor and the Assignee on this
Assignment and Acceptance.
c. Headings. Headings are for reference only and are to be ignored in
interpreting this Assigmnent and Acceptance.
d. Governing Law. THIS ASSIGNMENT AND ACCEPTANCE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA.
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e. Entire Agreement. This Assignment and Acceptance embodies the
entire agreement and tmderstanding between the parties hereto and supersedes all prior
agreements and understandings between the parties relating to the subject matter hereof
f. Further Assurances. The Assignor and the Assignee hereby agree to
execute and deliver such other instruments, and take such other action, as either party may
reasonably request in furtherance of the transactions contemplated by this Assigmnent and
Acceptance. '
I 1 g. Counteggarts. This Assignment and Acceptance may be executed in
one or more duplicate counterparts, and when executed and delivered by all the parties listed
below shall constitute a single binding agreement.
8. Notwithstanding any other provision of this Assigmnent and Acceptance or
the Loan Agreement, the Assignor shall be entitled to retain for his own accotmt any fees that
may be applicable to the Assignor in a capacity other than as Lender and any and all amounts
received prior to the effective date and as otherwise provided hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Acceptance intending to bind their respective successors and assigns as ofthe Effective Date.
The Assignor
ROBERT L. BAST
,Q-egdf
Robert L. Bast K
110 Spruce Lane
Ambler, PA 19002
1 Tel: (215) 793-6000
Execution Date: U- /6‘ · {*77-
- The Assignee
_ ANDREW N. YAO
47 {
Andrew . Yao
Five Radnor Corporate Center
Suite 501 »
100 Matsonford Road
Radnor, PA 19087
Tel: (610) 995-2300 _
Execution Date: // ‘ /1-- 6 7-
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