HomeMy WebLinkAbout2020-681-E Economic Dev-OC Small Business Loan program assignment
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date (referred to below) and is entered into by and between the
Assignor identified below (the "Assignor") and the Assignee identified below (the
"Assignee"). The parties hereto hereby agree that the rights and obligations of the
Assignors and Assignees hereunder are several and not joint. Capitalized terms used but
not defined herein shall have the meanings set forth in the Loan Agreement identified
below (as amended, supplemented or otherwise modified from time to time, the "Loan
Agreement"). The parties hereto hereby agree to the Standard Terms and Conditions for
Assignment and Assumption (the "Standard Terms and Conditions") specified in
Annex 1 attached hereto which are incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth in full herein. The Assignee hereby
acknowledges receipt of a copy of the Loan Agreement.
Subject to and in accordance with the Standard Terms and Conditions and the
Loan Agreement, as of the Effective Date, and for an agreed consideration, the Assignor
hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably
purchases and assumes from the Assignor, (a) all of the Assignor's rights and obligations
as a Lender under the Loan Agreement, the Loan Documents and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of the Assignor
under the facilities identified below (including, without limitation, any letters of credit,
swingline loans and guaranties included therein) and (b) to the extent permitted by
applicable law, all suits, claims, causes of action and any other right of the Assignor (as a
Lender) against any Person, whether known or unknown, arising under or with respect to
the Loan Agreement, any other Loan Document, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or otherwise based
on or related to any of the foregoing, including, but not limited to, contract claims,
statutory claims, tort claims, malpractice claims and all other claims at law or in equity
with respect to the rights and obligations sold and assigned pursuant to clause (a) above
(the rights and obligations sold and assigned pursuant to clauses (a) and (b) above,
collectively, the "Assigned Interest"). Such sale and assignment is without recourse to
the Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: Orange County Small Business Loan Program Company
2. Assignee: Orange County
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3. Borrowers: Mark A. Holt, doing business as MasterPeace Barber Shop,
Kevin S. Mason and Jennie R. McCray, doing business as The
Accidental Baker, Seal the Seasons, LLC, J. Beau Bennett, L.L.C.,
Matthew’s Chocolates Inc., DJF Consulting, LLC, Boro Beverage
Company, LLC, Bacon’s Meat Market, LLC, Piedmont Food
Processing Center, Inc., The Cherry Peel, Inc.
4. Loan Agreement and Assigned Interests: The Loan Agreements as indicated as
follows:
Borrower Date Facility Assigned
Original
Amount of
Loan
Remaining
Amount of
Loan
Assigned
Mark A. Holt, doing
business as
MasterPeace Barber
Shop
April 13, 2015
Loan and Security
Agreement;
Promissory Note $15,000.00 $1,990.36
Kevin S. Mason and
Jennie R. McCray,
doing business as The
Accidental Baker
September 4, 2015
Loan and Security
Agreement;
Promissory Note
$44,000.00 $7,809.25
Seal the Seasons,
LLC November 17, 2016
Loan and Security
Agreement;
Promissory Note
$50,000.00 $3,087.59
J. Beau Bennett,
L.L.C. January 28, 2016
Loan and Security
Agreement;
Promissory Note
$50,000.00 $36,817.01
Matthew’s
Chocolates Inc. December 5, 2018
Loan and Security
Agreement;
Promissory Note
$25,000.00 $25,000.00
DJF Consulting, LLC December 5, 2018
Loan and Security
Agreement;
Promissory Note
$20,000.00 $20,000.00
Boro Beverage
Company, LLC February 25, 2019
Loan and Security
Agreement;
Promissory Note
$25,000.00 $25,000.00
Bacon’s Meat
Market, LLC January 19, 2016
Loan and Security
Agreement;
Promissory Note
$100,000.00 $49,186.62
Piedmont Food
Processing Center, September 25, 2018 Loan and Security
Agreement; $25,000.00 $23,309.31
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Inc. Promissory Note
The Cherry Peel, Inc. October 27, 2016
Loan and Security
Agreement;
Promissory Note
$100,000.00 $72,824.90
5. Effective Date: October 7, 2020
[SIGNATURE PAGE FOLLOWS]
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The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
Orange County Small Business Loan
Program Company
By_____________________
Jonna Hunt
Title: President, Orange County Small
Business Loan Program Company
ASSIGNEE
Orange County
By_____________________
Bonnie Hammersley
Title: County Manager
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EXHIBIT A
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND
ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of its Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender;
and (b) except as set forth herein, makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, representations or warranties made in or
in connection with the Loan Agreement or any other Loan Document, (ii) the execution,
validity, legality, enforceability, sufficiency, genuineness or value of, or the perfection or
priority of any lien or security interest created or purported to be created under or in
connection with, the Loan Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto or any collateral thereunder, (iii) the performance
or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under the Loan Agreement, any other Loan Document
or any other instrument or document furnished pursuant thereto or (iv) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of the Loan Agreement or any other Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment
and Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Loan Agreement, (ii) it meets all requirements of an Eligible Assignee
under the Loan Agreement (subject to receipt of such consents as may be required under
the Loan Agreement), (iii) it shall be bound by the provisions of the Loan Agreement as a
Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations
of a Lender thereunder, from and after the Effective Date, (iv) it is sophisticated
regarding decisions to purchase assets such as those represented by the Assigned Interest
and either it, or the Person exercising discretion in making its decision to purchase the
Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a
copy of the Loan Agreement and the other Loan Documents, together with (or been given
the opportunity to receive) copies of the most recent financial statements delivered, as
applicable, and such other documents and information as it has deemed appropriate to
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make its own credit analysis and decision to enter into this Assignment and Assumption
and to purchase Assigned Interest and, on the basis of such documents and information, it
has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (vi) if it is a Foreign Lender, attached
hereto is any documentation required to be delivered by it pursuant to the terms of the
Loan Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it
will, based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or refraining from taking action under
the Loan Documents, independently and without reliance on the Assignor or any other
Lender, and (ii) it will perform in accordance with their terms all of the obligations that
are required to be performed by it as a Lender under the Loan Agreement and the other
Loan Documents.
2. Payments. From and after the Effective Date, the Borrowers shall make all
payments of principal, interest, fees and other amounts in respect of each Assigned
Interest to the Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments made by the Borrowers for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves. Each of the Assignor and the
Assignee agrees that it will hold in trust for the other applicable party any interest, fees
and other amounts which it may receive to which such other party is entitled pursuant to
this clause, and pay to such other party any such amounts which it may receive promptly
upon receipt.
3. General Provisions. This Assignment and Assumption shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors and assigns.
This Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by facsimile or in electronic (i.e.,
"pdf" or "tif") format shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption and the other Loan
Documents and any claim, controversy, dispute or cause of action (whether in contract or
tort or otherwise) based upon, arising out of or relating to this Assignment and
Assumption and the transactions contemplated hereby and thereby shall be governed by,
and construed in accordance with, the law of the State of North Carolina.
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Revised 07/20
ORANGE COUNTY—DEPARTMENT USE ONLY
______________________________________________________________________________
Party/Vendor Name: Orange County Small Business Loan Program Company Party/Vendor Contact Person:
Economic Development Contact Phone: 919-245-2325 Party/Vendor Address: 131 W. Margaret Lane, Suite 205
City: Hillsborough State: NC Zip: 27278 Department: Economic Development Amount: N/A Purpose: Transition
of Loan Program & Assignment of Loans to Orange County Budget Code(s): 48100001-450072 Vendor # N/A
(N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract Type: (Check one) New
Renewal Amendment Effective Date 10/7/20 Approved by Board Yes No Agenda Date: 6/16/20
This agreement is approved as to technical form and content and I as Department Director affirmatively state work on
this project has not been initiated prior to execution of the agreement:
Department Director’s Signature ________________________________________ Date: ________
Agreements for emergency services or repair are not subject to the above affirmation. If services related to this
agreement have already begun or been completed please briefly describe the nature of the emergency condition that
was addressed:
Information Technologies
(Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is
approved as to information technology content and specifications:
Office of the Chief Information Officer___________________________________ Date: ________
Risk Management
This agreement is approved for sufficiency of insurance standards, specifications, and requirements:
Office of the Risk Management Officer___________________________________ Date: _________
Financial Services
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act:
Office of the Chief Financial Officer ____________________________________ Date: _________
Legal Services
This agreement is approved as to legal form and sufficiency:
Office of the County Attorney __________________________________________Date: ________
Clerk to the Board
Received for record retention:
All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov
The following signature block is for hard copies only and is not required for Docusign contracts:
Office of the Clerk to the Board __________________________________________Date:_________
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10/14/2020
10/15/2020
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