Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated as of the Effective Date set forth below and is entered into by and between ______________ ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.
Appears in 4 contracts
Samples: Credit Agreement (Usaa Tax Exempt Fund Inc), Credit Agreement (Usaa State Tax Free Trust), Credit Agreement (Usaa Investment Trust)
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment Bxxx Xxxxx *Information marked with an asterisk herein has been omitted and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated as of filed separately with the Effective Date set forth below and is entered into by and between ______________ ("ASSIGNOR") and Commission pursuant to a request for confidential treatment. Exhibit 1.1(b)-B ______________________, 2012 [Insert Address] Re: Option and Lease Agreement ("ASSIGNEE"as amended and assigned from time to time, collectively, the “Ground Lease”) dated [_________] by and between [_________] (“Landlord”) and CIG Comp Tower, LLC (“Tenant”). Capitalized terms used but not defined herein shall have the meanings given , successor in interest to them Communications Infrastructure Group, LLC, successor in interest to [_________] with respect to that certain real property located at [_________] Dear [_________] : The Ground Lease and Tenant's interest in the Credit Agreement dated Property and all rights and proceeds relating thereto are collectively referred to as of January 8the “Leasehold Estate”. Landlord understands that Macquarie Bank Limited, 2004 (as amendedadministrative agent, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of itself and for one or more other lenders (collectively, including their successors and assigns, “Lender”) proposes to make a loan (the benefit of the series of Funds comprising each such Investment Company as listed “Loan”) to Tenant secured by a lien on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt security interest in all of a copy of which is hereby acknowledged by Assignee. The Standard Terms Tenant's assets and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with personal property located on the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoingProperty, including, but not limited to, contract claimsall accounts receivable, tort claimsinventory, malpractice claimsgoods, statutory claimsmachinery, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE equipment owned by Tenant (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale “Personal Property”) and a leasehold mortgage on and assignment of the Leasehold Estate of Tenant under the Ground Lease as collateral security for the repayment of the Loan. The Lender is without recourse requiring as a condition precedent to Assignor and, except as expressly provided in making the Loan that the Landlord provide this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and letter for the benefit of Tenant and Lender, each of whom will be relying on this letter in connection with the series Loan. In connection with the foregoing, Landlord does hereby certify to Tenant, [_________] and the Lender effective as of funds comprising each such Investment Company the date written above as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.follows:
Appears in 2 contracts
Samples: Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.)
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment For and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated as of the Effective Date set forth below and is entered into by and between ______________ ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of Adfactors Advertising LLP Authorized Signatory Name: Designation: For and for on behalf of Adfactors PR Private Limited Authorized Signatory Name: Designation: ANNEXURE C LETTER OF INDEMNITY To IIFL Securities Limited 10th Floor, IIFL Centre Kamala City, Senapati Xxxxx Xxxx Lower Parel (West) Xxxxxx 000 000 Xxxxxxxxxxx, Xxxxx ICICI Securities Limited ICICI Venture House Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxx 000 000 Xxxxxxxxxxx, Xxxxx JM Financial Limited 7th Floor, Cnergy Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxx 000 000 Xxxxxxxxxxx, Xxxxx (IIFL Securities Limited, ICICI Securities Limited and JM Financial Limited are referred collectively as the benefit “BRLMs”) Ladies and Gentlemen: Sub: Letter of indemnity to the BRLMs by Adfactors PR Private Limited and Adfactors Advertising LLP (“Letter of Indemnity”) pursuant to the Service Provider Agreement dated [●] entered into between Adfactors and Archean Chemical Industries Limited (the “Company”) The Company and the Selling Shareholders propose to undertake an initial public offering of equity shares of face value of ₹ 2 each of the series Company (“Equity Shares”), comprising of Funds comprising each a fresh issue of its Equity Shares and an offer for sale of certain Equity Shares held by certain shareholders of the Company (the “Selling Shareholder(s)”) (the “Offer”) in accordance with the Companies Act, 2013,including any rules thereto, the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018, as amended (the “SEBI ICDR Regulations”) and other applicable laws and regulations at such Investment price as may be determined through the book building process (“Book Building Process”) as prescribed in Schedule XIII of the SEBI ICDR Regulations by the Company as listed on SCHEDULE 2 and the Selling Shareholders in consultation with the Lead Managers to the Credit AgreementOffer (the “Offer Price”), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms Company and Conditions set forth the Selling Shareholders have appointed the BRLMs to manage the Offer. The Offer will be made: (i) within India, to Indian institutional, non-institutional and retail investors in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption “offshore transactions” as if set forth herein defined in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with SEBI ICDR Regulations and made in reliance on Regulation S (“Regulation S”) under the Standard Terms and Conditions and the Credit AgreementU.S. Securities Act of 1933, as of amended (the Effective Date inserted by Administrative Agent as contemplated below (i“U.S. Securities Act”) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) within the United States, to QIBs who are also “qualified institutional buyers”, as defined in, and in reliance on, Rule 144A of the Securities Act (“Rule 144A”) or another available exemption under the Securities Act, and (iii) outside the United States and India, to institutional investors in “offshore transactions”, as defined in, and in reliance on, Regulation S and the applicable laws of the jurisdictions where those offers and sales occur. The Offer may also include allocation of Equity Shares to certain Anchor Investors, in consultation with the BRLMs, on a discretionary basis by the Company, in accordance with the SEBI ICDR Regulations Adfactors Advertising LLP and Adfactors PR Private Limited (collectively, the “Service Provider”) has entered into a service provider agreement (“Agreement”) dated [●], with the Company in relation to a public relations programme with respect to the extent Offer in compliance with the SEBI ICDR Regulations and to provide media monitoring services in compliance with the provisions of the SEBI ICDR Regulations and other applicable laws, and the Service Provider has accepted its appointment as an advertising agency by way of an engagement letter dated [●]. The Service Provider confirms that it has read the SEBI ICDR Regulations and Publicity Memorandum in so far as the same is applicable to its scope of work undertaken pursuant to the Agreement and is fully aware of its duties, responsibilities, obligations and the consequences of any failure to perform its duties, responsibilities and obligations under the Agreement. The Service Provider acknowledges that the BRLMs may be exposed to liabilities or losses if the Service Provider fails to comply with its duties, responsibilities and obligations under the Agreement. The Service Provider undertakes to BRLMs that it shall act with due diligence, care and skill while discharging its services under the Agreement. The Service Provider further represents, warrants and undertakes to the BRLMs to (a) fully cooperate and comply with any instructions the BRLMs may provide in respect of the Offer, (b) ensure compliance with applicable laws (including requirements under the SEBI ICDR Regulations and the Companies Act, 2013 in relation to Advertisements and Publicity Material prepared by the Service Provider), and (c) comply with the terms and conditions of the Agreement and this Letter of Indemnity. The Service Provider acknowledges that the Company entering into the Agreement with the Service Provider is sufficient consideration for the Service Provider to issue this letter of indemnity in favour of the BRLMs. Further, pursuant to the provisions of the Agreement, the Service Provider has undertaken to execute and deliver this Letter of Indemnity in favour of each of the BRLMs to fully indemnify and defend and hold harmless, at its own cost and expense, at all times each of the BRLMs, and their respective Affiliates, directors, management, officers, employees, representatives, advisors, intermediaries, successors, permitted to be assigned assigns and agents or any other persons acting on its behalf and/or any other person that, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under applicable lawcommon control with such indemnified persons (the “BRLM Indemnified Party”) at all times for any and all losses, all liabilities, interest, demands, damages, claims, suits, causes actions, awards, judgements, writs, costs and expenses, including attorney’s fees and court costs arising out of, or in relation to, or in connection with, a breach or alleged breach of the Service Providers’ representations, warranties, undertaking and obligations under the Agreement and this Letter of Indemnity, including relating to the delivery of information for the media compliance certificate to be provided by the BRLMs under Regulation 42 read with clause (11) of Schedule IX of the SEBI ICDR Regulations and in accordance with this Letter of Indemnity. The Service Providers agree that clauses I (Objectives), II (Scope of Services), III (Servicing Team) and IV (Commercial Terms) of the Agreement are incorporated in this Letter of Indemnity mutatis mutandis. Accordingly, the Service Provider hereby irrevocably undertakes to each of the BRLMs to fully indemnify, defend and hold harmless each BRLM Indemnified Party free and harmless from and against any and all losses, charges, liabilities, claims, damages, demands, suits, writs, actions, costs, awards, judgements, interests, penalties, judgement, proceedings and expenses, including, without limitation, attorney’s fees and court costs arising out of, in connection with, or resulting from any failure, deficiency, error in compliance or a breach or alleged breach of any provision of law, regulation or order of any court or legal, regulatory, statutory, judicial, quasi-judicial, governmental or administrative authority or duties, responsibilities or obligations, or error or failure to deliver or of any of the terms and conditions mentioned in the Agreement or this Letter of Indemnity or of any representation, warranty or undertaking or any delay or from its own breach or alleged breach, gross negligence, fraud, wilful misconduct, wilful default or bad faith, if any, in performing its duties, obligations and responsibilities, including in relation to any acts or omissions or failure to perform its duties, obligations and responsibilities by the Service Provider and/or its partners, representatives, officers, directors, management, employees, Affiliates successors, permitted assigns or other persons acting on its behalf, and/or such reports or any information provided by the Service Provider to the BRLMs (including but not limited to the delivery of information for the media compliance certificate by the BRLMs under clause (11) of Schedule IX of the SEBI ICDR Regulations to the BRLM Indemnified Party) is untrue, incomplete or incorrect in any respect, and /or is an infringement of any intellectual property, rights of any third party or anything is done or omitted to be done through the gross negligence, wilful default or wilful misconduct by the Service Provider or of its respective Affiliates, partners, representatives, management, officers, directors, employees or agents, or the Offer. The maximum aggregate liability of the Service Provider together with its Affiliates, directors, partners, employees, associates or contractors or other persons acting on its behalf (regardless of the form of action, and whether in contract, negligence or otherwise) shall in no event exceed the aggregate amount of professional fees payable or paid by the Company to the Service Provider under this Agreement except any liability arising out of fraud, gross negligence, willful default, bad faith or willful misconduct on the part of the Service Provider and/or its partners, employees, Affiliates, associates, contractors, or other persons acting on its behalf. This indemnity shall be effective from the date of execution of the Agreement. The indemnity provided in this Letter of Indemnity shall survive until the expiry / termination of the Agreement. The provisions of this indemnity are not affected by any other terms (including any limitations) set out in the Agreement and shall be in addition to any other rights that the BRLM Indemnified Party may have at common law, equity and/ or otherwise. This Letter of Indemnity may be executed by delivery of a PDF format copy of an executed signature page with the same force and effect as the delivery of an originally executed signature page. In the event any of the parties delivers a PDF format signature page of a signature page to this Letter of Indemnity, such party shall deliver an originally executed signature page within seven working days of delivering such PDF format signature page or at any time thereafter upon request; provided, however, that the failure to deliver any such originally executed signature page shall not affect the validity of the signature page delivered by in PDF format. In the event of a breach by any party to this Letter of Indemnity, the defaulting party shall have the right to cure such breach within a period of Assignor 10 (in its capacity as a Lenderten) against days of receipt of written notice of such breach by the non-defaulting party. In the event that (i) such breach is not cured by the defaulting party within the aforesaid period, or (ii) if any Persondispute, whether known difference or unknown, arising under or claim arises between the parties in connection with the Credit Agreement or this Letter of Indemnity or the validity, interpretation, implementation or alleged breach of the terms of this Letter of Indemnity or anything done or omitted to be done pursuant to this Letter of Indemnity, the parties shall attempt in the first instance to resolve the same through negotiation. If the dispute is not resolved through negotiation within 10 days after commencement of discussions, then either party may refer the dispute for resolution to an arbitration tribunal consisting of three arbitrators (one to be appointed by the Agency, one by the BRLMs and one jointly by the appointed arbitrators). All proceedings in any such arbitration shall be conducted under the Arbitration and Conciliation Act, 1996 or any re-enactment thereof and shall be conducted in English. The arbitration shall take place in Mumbai, Maharashtra, India (venue and seat of arbitration) and the arbitration tribunal shall consist of three arbitrators, one to be appointed by the Service Provider, the other to be jointly appointed by the BRLMs and the third to be jointly appointed by the two arbitrators appointed under this Letter of Indemnity in accordance with the Arbitration and Conciliation Act, 1996. The arbitral award shall be final, conclusive and binding on the parties and shall be subject to enforcement in any court of competent jurisdiction. The courts of India shall have the sole and exclusive jurisdiction over all the matters arising out of the arbitration proceedings mentioned herein above. A copy of the Agreement is provided to the BRLMs for their knowledge and records. This letter may be executed in one or more counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. This Letter of Indemnity may be amended or altered only with the prior written approval of all the BRLMs. In the event of inconsistency between the terms of this Letter of Indemnity and the Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any terms of this Letter of Indemnity shall prevail. The Service Provider acknowledges and agrees that each of the foregoing, including, BRLMs shall have the rights specified under the provisions of the Agreement but shall not have any obligations or liabilities (included but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law to payment of any fees or in equity related expenses) to the Service Provider or the Company or any other party, expressed or implied, direct or indirect, under the terms of the Agreement or this Letter of Indemnity. The Service Provider hereby agrees that failure of any Lead Manager Indemnified Party to exercise part of any of its right under this letter in one or more instances shall not constitute a waiver of those rights and obligations sold and assigned in another instance or a waiver by any other Lead Manager Indemnified Party of any of its rights established herein. Any notice or other communication given pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor this Letter of Indemnity must be in writing and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.
Appears in 1 contract
Samples: Service Provider Agreement
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E III-4 45 ANNEX IV FORM OF ASSIGNMENT AND ASSUMPTION THELXX XXXX & XRIEST LLP OPINION Goldxxx, Xxchs & Co. 85 Bxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxdies and Gentlemen: This Assignment and Assumption firm has acted as special environmental counsel to Orion Power Holdings, Inc., a Delaware corporation (this the "ASSIGNMENT AND ASSUMPTIONCompany") is on certain limited matters with regard to the issuance and sale by the Company of Common Stock, par value $.01 per share (the "Stock") pursuant to the Underwriting Agreement, dated as of [ ], 2000 (the Effective Date set forth below and is entered into by and between ______________ ("ASSIGNORUnderwriting Agreement") between the Company and ______________the Underwriters named in Schedule I thereto (the "ASSIGNEEUnderwriters"). Capitalized terms used but This opinion is being delivered to you pursuant to Section 8(d) of the Underwriting Agreement. In our review, we have assumed the accuracy and completeness of all statements of fact relating to the Company and its operations and products and have made no independent investigation for purposes of rendering this opinion. This opinion relates solely to matters of environmental law. We are licensed and authorized to practice law under the laws of the United States and the states of New York and California. This opinion relates solely to environmental laws and legal documents or proceedings promulgated under the laws of the United States and the state of New York and we do not defined herein shall have offer any opinions regarding laws or legal proceedings outside those jurisdictions. Based on and subject to the meanings given to them foregoing, we are of the opinion that the statements in the Credit Agreement dated Prospectus under the captions "Risk Factors-Environmental Regulation," and "Business-Regulation-Environmental Regulation," solely insofar as such statements purport to describe the laws or legal documents or legal proceedings referred to therein, are fair and accurate summaries of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., such laws and USAA State Tax-Free Trust (not regulations and such legal documents and proceedings in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assigneeall material respects. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, This opinion speaks only as of the Effective Date inserted by Administrative Agent as contemplated below (i) all date hereof and not to any prior or subsequent date, and we assume no obligation to advise you of Assignor's rights and obligations as a Lender under any changes in the Credit Agreement and the other Loan Documents foregoing subsequent to the extent related to the amount and percentage interest identified below delivery of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or this opinion. This opinion has been prepared solely for your use in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any offering of the foregoingsecurities and may not be used, includingquoted or otherwise referred to or relied upon by any person or entity without the prior written consent of this firm. Very truly yours, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.THELXX XXXX & XRIEST LLP -------------------------------
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Xxxxxx X. Xxxxx Vice President and Senior Vice PresidentCounsel The Lincoln National Life Insurance Company An [*] represents confidential information that has been omitted and filed separately with the Securities and Exchange Commission. December 31, Secretary & Counsel USAA Investment Management Company EXHIBIT E 2009 Exhibit C-4 FORM OF ASSIGNMENT AND ASSUMPTION This Assignment OPINIONS OF XXXXXX & XXXXXXXXX LLP, COUNSEL TO THE BENEFICIARY [See Attached] An [*] represents confidential information that has been omitted and Assumption filed separately with the Securities and Exchange Commission. December 31, 2009 Credit Suisse AG, New York Branch, as Administrative Agent and Issuing Lender Eleven Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 To each of the Lenders listed on Schedule 2.01 of the Reimbursement Agreement (this "ASSIGNMENT AND ASSUMPTION"as defined herein) is Re: Indiana Law Issues Ladies and Gentlemen: Pursuant to your request, we are rendering the opinions provided herein with regard to that certain Reimbursement Agreement dated as of December 31, 2009 (the Effective Date set forth below “Reimbursement Agreement”) among Lincoln Reinsurance Company of Vermont I, a Vermont special purpose financial captive insurance company and is entered into by a direct, wholly-owned subsidiary of LFHII (as defined below) (“LRCVI”), Lincoln Financial Holdings, LLC, II, a Delaware limited liability company and between ______________ a direct, wholly-owned subsidiary of LNL ("ASSIGNOR"as defined below) (“LFHII”), the several banks and ______________other financial institutions from time to time parties thereto as Lenders, and Credit Suisse AG, New York Branch ("ASSIGNEE"“Credit Suisse”), as Issuing Lender and as Administrative Agent. Capitalized terms used herein, but not otherwise defined herein herein, shall have the meanings given ascribed to them such terms in the Credit Agreement dated as Reimbursement Agreement. This opinion is delivered to you at the request of January 8, 2004 (as amended, modified, or extended, LRCVI and LFHII pursuant to Section 4.01(c) of the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., Reimbursement Agreement. We have reviewed the following documents and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and the exhibits thereto for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part purposes of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below opinion (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.“Relevant Documents”):
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentName: Accepted this __ day of ________ __, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated as of the Effective Date set forth below and is entered into by and between 1996: U S WEST, INC. By:___________________________ Name: Title: EXHIBIT E CONTINENTAL CABLEVISION, INC. CERTIFICATE OF DESIGNATION OF SERIES B CONVERTIBLE PREFERRED STOCK SETTING FORTH THE POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF SUCH SERIES OF PREFERRED STOCK Pursuant to Section 151 of the General Corporation Law of the State of Delaware, Continental Cablevision, Inc. (the "ASSIGNORCorporation") ), a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY: That pursuant to the authority conferred upon the Board of Directors of the Corporation by Article FOURTH of the Restated Certificate of Incorporation of the Corporation (as in effect on the date hereof and as amended from time to time in accordance with its terms, the "Restated Certificate of Incorporation"), and in accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation on______, 199________("ASSIGNEE"). Capitalized terms used but not defined herein shall have , adopted the meanings given following resolution creating a series of Preferred Stock designated as Series B Convertible Preferred Stock: RESOLVED that, pursuant to them the authority vested in the Credit Agreement dated as Board of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit Directors of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and Corporation in accordance with the Standard Terms provisions of the Restated Certificate of Incorporation, a series of the class of authorized Preferred Stock, par value $.01 per share, of the Corporation is hereby created and Conditions that the designation and number of shares thereof and the Credit Agreementvoting powers, as preferences and relative, participating, optional and other special rights of the Effective Date inserted by Administrative Agent as contemplated below (i) all shares of Assignor's rights and obligations as a Lender under the Credit Agreement such series, and the other Loan Documents to the extent related to the amount qualifications, limitations and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity restrictions thereof are as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.follows:
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated as Accepted on Behalf of the Effective Date set forth below and is entered into by and between The Savings Bank of Manchester By: _________________________________ ("ASSIGNOR") and Date: _____________________ PROMISSORY NOTE --------------- $_________________ _______,2000 PRINCIPAL FOR VALUE RECEIVED, the undersigned, THE SAVINGS BANK OF MANCHESTER EMPLOYEE STOCK OWNERSHIP PLAN TRUST ("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENTBorrower"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 hereby promises to pay to the Credit Agreementorder of CONNECTICUT BANCSHARES, INC. ("Lender"), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and ________________________ dollars ($___________) payable in accordance with the Standard Terms Loan Agreement made and Conditions entered into between the Borrower and the Credit Lender of even date herewith ("Loan Agreement") pursuant to which this Promissory Note is issued. The Principal Amount of this Promissory Note shall be payable in accordance with the schedule attached hereto ("Schedule I"). This Promissory Note shall bear interest at the rate per annum set for or established under the Loan Agreement, such interest to be payable in accordance with Schedule I. Anything herein to the contrary notwithstanding, the obligation of the Borrower to make payments of interest shall be subject to the limitation that payments of interest shall not be required to be made to the Lender to the extent that the Lender's receipt thereof would not be permissible under the law or laws applicable to the Lender limiting rates on interest which may be charged or collected by the Lender. Any such payments on interest which are not made as a result of the limitation referred to in the preceding sentence shall be made by the Borrower to the Lender on the earliest interest payment date or dates on which the receipt thereof would be permissible under the laws applicable to the Lender limiting rates of interest which may be charges or collected by the Lender. Such deferred interest shall not bear interest. Payments of both principal and interest on this Promissory Note are to be made at the principal office of the Lender or such other place as the holder hereof shall designate to the Borrower in writing, in lawful money of the United States of America in immediately available funds. Failure to make any payments of principal on this Promissory Note when due, or failure to make any payment of interest on this Promissory Note not later than five (5) Business Days after the date when due, shall constitute a default hereunder, whereupon the principal amount of accrued interest on this Promissory Note shall immediately become due and payable in accordance with the terms of the Loan Agreement. This Promissory Note is secured by a Pledge Agreement between the Borrower and the Lender of even date herewith and is entitled to the benefits thereof. THE SAVINGS BANK OF MANCHESTER EMPLOYEE STOCK OWNERSHIP PLAN TRUST ____________________________________ __________________, as Trustee LOAN AGREEMENT -------------- THIS LOAN AGREEMENT ("Loan Agreement") is made and entered in as of the Effective Date inserted __ day of___________, 2000, by Administrative Agent as contemplated below and between THE SAVINGS BANK OF MANCHESTER EMPLOYEE STOCK OWNERSHIP PLAN TRUST (i) all "Borrower"), a trust forming part of Assignor's rights The Savings Bank of Manchester Employee Stock Ownership Plan ("ESOP"); and obligations as Connecticut Bancshares, Inc. ("Lender"), a Lender corporation organized and existing under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any laws of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit AgreementDelaware.
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President[X.X. COSMETICS HOLDINGS, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated INC.]/[X.X. COSMETICS US, INC.], a Delaware corporation, as the Borrower Agent5 By Name Title 5 Prior to the consummation of the Effective Closing Date set forth below Acquisition and the joinder by X.X. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, X.X. Cosmetics Holdings, Inc. will be the signatory hereto. Upon the consummation of the Closing Date Acquisition and the joinder by X.X. Cosmetics US, Inc., as a Borrower pursuant to a Joinder Agreement, X.X. Cosmetics US, Inc. will be the signatory hereto. Exhibit C-1 Form of Revolving Loan Note U.S. $ , FOR VALUE RECEIVED, the undersigned, X.X. Cosmetics Holdings, Inc., a Delaware corporation (“Initial Borrower”), hereby promises to pay to (the “Lender”) or its registered assigns on the Revolving Credit Termination Date of the hereinafter defined Credit Agreement, at the principal office of the Administrative Agent in Chicago, Illinois (or such other location as the Administrative Agent may designate to the Initial Borrower), in immediately available funds, the principal sum of Dollars ($ ) or, if less, the aggregate unpaid principal amount of all Revolving Loans made by such Lender to the Borrowers pursuant to the Credit Agreement, together with interest on the principal amount of each Revolving Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement. This Note is entered into by and between ______________ ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have one of the meanings given Revolving Loan Notes referred to them in the Credit Agreement dated as of January 831, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT")2014, among USAA Mutual Fundthe Initial Borrower (the Initial Borrower, Inc.together with each Domestic Subsidiary of Initial Borrower who hereafter becomes a “Borrower” thereunder pursuant to a Joinder Agreement may be referred to individually, USAA Investment Trustas a “Borrower” and collectively, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement“Borrowers”), the Lenders from time to time Guarantors party thereto, State Street Bank the Lenders and Trust Company, as operations agent for such lendersL/C Issuer parties thereto, and Bank of America, N.A.Montreal, as administrative agent Administrative Agent (as extended, renewed, supplemented, modified amended or restated from time to time, the “Credit Agreement”), and this Note and the holder hereof are entitled to all the benefits and security provided for such lendersthereby or referred to therein, receipt of a copy of to which Credit Agreement reference is hereby acknowledged made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and construed in accordance with the Standard Terms internal laws of the State of New York. Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and Conditions this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) . The Borrower hereby waives to the extent permitted to be assigned under by applicable lawlaw demand, all claimspresentment, suits, causes protest or notice of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest")kind hereunder. Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.Signature Page Follows]
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment EGS SECURITIES CORP. By: /s/ WILLXXX XXXXXXX -------------------- Willxxx Xxxxxxx Managing Director Accepted and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated agreed to as of the Effective Date set forth below date first written above, SABRATEK CORPORATION By: /s/ JOHN XXXXXX ------------------------------- Title: Chief Financial Officer ---------------------------- Attachment ANNEX A INDEMNIFICATION In addition to the fees and is entered into by and between ______________ expenses which the Company has agreed to pay for the services to be performed pursuant to the letter agreement of even date herewith ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENTAgreement"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below agrees: (i) all to indemnify and hold EGS (which term for the purposes of Assignor's rights and obligations this letter includes its directors, controlling persons [as a Lender such term is defined under the Credit Agreement Securities Act of 1933], the officers, employees and agents) harmless against and from all losses, claims, damages or liabilities, joint or several (and all actions, claims, proceeds and investigations in respect thereof), to which EGS may become subject in connection with its performance of the services described in the attached letter agreement under any of the Federal securities laws, under any other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documentsstatute, and at common law or otherwise; (ii) that EGS will not be culpable for and will have no liability to the extent permitted Company for or with respect to be assigned under applicable lawany and all losses, all claims, suitsdamages or liabilities, causes joint or several, of action, the Company incurred in connection with EGS' performance of the services described in the Agreement; and any (iii) in each case to reimburse EGS for all reasonable legal and other right out-of-pocket expenses (including the cost of Assignor (in its capacity investigation and preparation) as a Lender) against any Person, whether known or unknown, and when incurred by EGS arising under out of or in connection with any action, claim, proceeding or investigation (whether initiated or conducted by the Credit AgreementCompany or any other party) in connection therewith, whether or not resulting in any liability (and whether or not EGS is defendant in, or target of, any other Loan Documentsuch action, any other documents claim, proceeding or instruments delivered pursuant theretoinvestigation); provided, or however, that the loan transactions governed thereby or in any way based on or related Company shall not be liable to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned EGS pursuant to CLAUSE clauses (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (Ii) and (IIiii) above and the Company's exculpation of EGS pursuant to clause (ii) above shall not apply in any such case to the extent that any such loss, claim, damage or liability is found in a final judgment by a court of competent jurisdiction to have resulted from EGS gross negligence, bad faith, or willful misconduct or the gross negligence, bad faith, or willful misconduct of any other indemnified person hereunder, and amounts paid and reimbursement of expenses under (iii) above shall be refunded. If for any reason the foregoing indemnification (including reimbursement pursuant to clause (iii) above) or the exculpation is unavailable to EGS or insufficient to hold it harmless (other than by reason of the proviso to the preceding sentence), collectivelythen the Company shall contribute to the amount paid or payable by EGS as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the "ASSIGNED Interest")relative benefits received by the Company on the one hand and EGS on the other hand but also the relative fault of the Company and EGS as well as any relevant equitable considerations, provided that, in no event, will EGS' aggregate contribution hereunder exceed the amount of fees actually received by EGS pursuant to the Agreement. Such sale The indemnity, exculpation, reimbursement and assignment contribution obligations of the Company under this paragraph shall be in addition to any liability which the Company may otherwise have, shall survive any termination of the Agreement and shall be binding upon and extend to the benefit of any successors, assigns, heirs and personal representatives of the Company and EGS. If any action, claim proceeding or investigation is without recourse instituted or threatened against EGS in respect of which indemnity may be sought against the Company hereunder, EGS shall promptly notify the Company thereof in writing, but the omission to Assignor andnotify the Company shall relieve the Company from any other obligation of liability that the Company may have to EGS under this letter or otherwise, except as expressly provided only to the extent that such delay in this Assignment notification materially prejudices the Company's defenses of such claim or action. The Company shall assume the defense of such action, including the employment of counsel and Assumptionthe payment of reasonable expenses. EGS shall have the right to employ its own counsel in any such case, without representation but the fees and expenses of such counsel shall be at the expense of EGS unless the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such action or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] the Company shall not have employed counsel to have charge of the defense of such action or in the opinion of counsel to EGS that there may be defenses available to it which are unique or separate to those available to the Company (in which case the Company shall not in their individual capacities but have the right to direct the defense of such action on behalf of EGS), in any of which events such fees and expenses shall be borne by the Company; provided, that the Company shall only be responsible for the benefit fees and expenses of one counsel in each jurisdiction. The Company will not be liable hereunder for any settlement thereof by EGS without the series Company's written consent, which will not be unreasonably withheld. The Company shall not, without the prior written consent of funds comprising each such Investment Company as listed on SCHEDULE 2 EGS settle or compromise any claim, or permit a default or consent to the Credit Agreement) entry of any judgment in respect thereof, unless such settlement, compromise or consent includes the giving by the claimant to EGS of an unconditional and irrevocable release from all liability in respect of such claim. 8 MEMORANDUM To: John X. Xxxxxx Xxom: Willxxx X. Xxxxxxx Xxte: July 2, 1999 Subject: LifeWatch Advisory Fees -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank This memorandum serves to confirm the determination, by mutual agreement per the terms of Americamy memorandum to you dated March 26, N.A.1999, as that EGS will receive 37,500 shares of common stock of Sabratek for services rendered in connection with the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, SRS Transaction (as defined in the Credit Agreementmemorandum). The terms of issuance, registration and sale of such stock will follow the terms outlined in the aforementioned memorandum. Please confirm your understanding and acceptance of our agreement by signing below and faxing a copy of this memorandum to me.
Appears in 1 contract
Samples: Sabratek Corp
Sincerely,. S/ MARK S. HOWARD [o] Agreed and Accepted: WHITNEY HOLDING CORPORATION By: ----------------------------------------- Title: -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E 1 TO AGREEMENT AND PLAN OF MERGER FORM OF ASSIGNMENT AND ASSUMPTION This Assignment SUPPORT AGREEMENT FOR DIRECTORS July [o], 2005 Xx. Xxxxxxx X. Marks Chairman and Assumption CEO Whitney Holding Corporation 000 Xx. Xxxxxxx Xxxxxx New Orleans, La. 70130 Dear Xx. Xxxxx: In consideration of the benefits the undersigned will receive as a shareholder of First National Bancshares, Inc. (this "ASSIGNMENT AND ASSUMPTIONHolding") is dated as of the Effective Date set forth below in the Agreement and is entered into by Plan of Merger, dated July 27, 2005, between Holding and between ______________ 1st National Bank & Trust (the "Bank"), on the one hand, and Whitney Holding Corporation ("ASSIGNORWhitney") and ______________Whitney National Bank ("ASSIGNEEWNB"), on the other hand (the "Merger Agreement"), and as a member of the Manatee/Sarasota Market Advisory Board of Whitney National Bank], the undersigned agrees and acknowledges as follows: I agree to vote all shares of Holding Common Stock that I own beneficially or of record in favor of approving the Merger Agreement and the merger of Holding into Whitney (the "Company Merger") to be effected thereby at any shareholder meeting of Holding or at any adjournment thereof or any other circumstance upon which a vote, consent or other approval is sought, unless Whitney is then in breach or default in any material respect as regards any covenant, agreement, representation or warranty as to it contained in the Merger Agreement. Furthermore, I agree to vote all shares of Holding Common Stock that I own beneficially or of record at any shareholder meeting of Holder or at any adjournment thereof or any other circumstance upon which a vote, consent or other approval is sought against any merger agreement, share exchange, or merger (other than the Company Merger and the Merger Agreement), consolidation, combination, sale of substantially all of the assets, recapitalization, dissolution, liquidation, or winding up of Holding, or any amendment to Holdings' Articles of Incorporation or Bylaws or other proposal or transaction involving Holding, which amendment or proposal or transaction would in any manner impede, frustrate, prevent or nullify the Company Merger, the Merger Agreement or any of the other transactions contemplated thereby. I further agree that I will not, without the prior written consent of Whitney, transfer any of my shares of Holding Common Stock prior to the Effective Date, as that term is set forth in the Merger Agreement, except by operation of law, by will, or under the laws of descent and distribution. I certify that all of the shares of Holding Common Stock that I own beneficially or of record or control or which I hold the power to sell, transfer, pledge or otherwise alienate or encumber, including all shares that would be deemed to be sold for my account by Rule 144 under the Securities Act, are represented by the following certificates: Certificate No. Certificate Name No. of shares I am aware that Holding and Whitney intend to treat the Company Merger in a manner consistent with Section 368 of the Internal Revenue Code of 1986, as amended (the "Code"). I acknowledge that applicable tax regulations require "continuity of interest" in order for the Company Merger to qualify as a tax-free reorganization under Section 368 of the Code. This requirement is satisfied if prior to the Company Merger (i) shareholders of Holding have not sold or otherwise disposed of Holding Common Stock and (ii) there is no plan or intention on the part of the shareholders of Holding to sell or otherwise dispose of Whitney stock to be received in the Company Merger in an aggregate amount that would reduce their ownership to a number of shares of Whitney stock having an aggregate value, at the time of the Company Merger, of less than 50% of the total fair market value of the Holding Common Stock (other than shares held by the Bank except in a fiduciary capacity for third persons) outstanding immediately prior to the Company Merger. I have not disposed of a number of shares of Holding Common Stock and I have no plan or intention to dispose of a number of shares of Whitney stock to be received by me in the Company Merger that would, taking into account any plan or intention on the part of other former shareholders of Holding to dispose of shares of Whitney stock received in the Company Merger, cause the foregoing requirement not to be satisfied. I hereby agree that, for two (2) years following the Closing Date, I shall not, without the prior written consent of the Chief Executive Officer of Whitney, which consent may be withheld for any reason, directly or indirectly solicit or recruit for employment or encourage to leave employment with Whitney or any of its affiliates, on my own behalf or on behalf of any other person or entity other than Whitney or any affiliate of Whitney, any person who worked at Holding or the Bank during my tenure as a director of Holding or any person who worked at Whitney or WNB during my tenure as an Advisory Board member of Whitney National Bank and who performed services for clients and customers of Holding, Whitney or any of their affiliates or worked on Holding, Whitney or any of their affiliates' products or services while employed by Holding or Whitney or any of their affiliates and who has not thereafter ceased to be employed by Holding, the Bank or Whitney or any of their affiliates for a period of at least one (1) year. I agree to exercise my best efforts to prevent any of the activities listed in this paragraph from occurring. I hereby agree that, for two (2) years following the Closing Date, I shall not, directly or indirectly, on behalf of myself or of anyone other than Whitney or its affiliates, solicit or attempt to solicit any client or customer of Whitney, Holding or any of their affiliates for the purpose of either (1) providing any financial or related service or product to such client or customer or (2) inducing such client or customer to cease, reduce, restrict or divert its business with Holding, the Bank or Whitney and its affiliates. I agree to exercise my best efforts to prevent any of the activities listed in this paragraph from occurring. I hereby agree that, for two (2) years following the Closing Date, I shall not, without the prior written consent of the Chief Executive Officer of Whitney, which consent may be withheld at the sole discretion of the Chief Executive Officer of Whitney at any time, engage or participate in, as an officer, director, owner, partner, joint venturer, or in a managerial capacity as an executive employee, independent contractor, or advisor in any business or enterprise that competes in Sarasota, Manatee or Pinellas Counties in Florida (the "Restricted Area") with Whitney or Holding or their affiliates, in any Business Activities. For purposes of this paragraph, the "Business Activities" shall be the business activities conducted by Holding and its affiliates, and those conducted by Whitney and its affiliates, which include commercial, small business, and retail lending, banking services, private client services, asset management advisory services, trust, cash management, brokerage, mortgage services, and credit, debit and stored value card services. Nothing in this paragraph shall prohibit me from acquiring or holding, for investment purposes only, less than one percent (1%) of the outstanding securities of any corporation that may compete directly or indirectly with Holding or Whitney or their affiliates. I acknowledge that Whitney has purchased through the Merger Agreement the trade secrets, confidential information, customer relationships and other goodwill of Holding and the Bank and that Whitney has a legitimate business interest in protecting those items and the benefits of its purchase. I further acknowledge that Whitney has a current and future expectation of business within the geographic areas served by Holding and the Bank and encompassing the Restricted Area and from the current and proposed customers of Holding, the Bank and/or Whitney and/or their affiliates and that this Agreement is a reasonable means of protecting the benefits of Whitney's purchase and its other legitimate business interests, including its trade secrets, confidential information, customer relationships and other goodwill. The undersigned acknowledges that the term, geographic area and scope of the covenants set forth in this Agreement are reasonable, and agrees that the undersigned will not, in any action, suit or other proceeding, deny the reasonableness of, or assert the unreasonableness of, the premises, consideration or scope of the covenants set forth herein. The undersigned agrees that any breach of the covenants contained in this Support Agreement will result in irreparable damage to Whitney and its affiliates and that Whitney will be entitled to injunctive relief in any court of competent jurisdiction without the necessity of posting any bond. I also agree that I shall be responsible for any damages incurred by Whitney or any of its affiliates due to any breach of the covenants contained in this Support Agreement. Capitalized terms used but herein and not otherwise defined herein shall have the meanings given to them in the Credit Agreement dated as Merger Agreement. This letter shall constitute an irrevocable agreement of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc.undersigned, and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for may be revoked only upon the benefit mutual agreement of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assigneeparties. The Standard Terms and Conditions set forth agreements contained in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as Support Agreement will terminate upon any termination of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender Merger Agreement under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any Section 7 of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Merger Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (First National Bancshares Inc/ Fl/)
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentXxxxx Fargo Bank, Secretary & Counsel USAA Investment Management Company EXHIBIT E National Association, operating through its Xxxxx Fargo Business Credit operating division By: Name: Xxxxx Xxxxxxxx Title: Authorized Signatory ACKNOWLEDGED AND AGREED TO BY: INTERFACE, INC. By: Name: Title: BENTLEY PRINCE STREET, INC. By: Name: Title: Letter Agreement re Collection and Disposition of Bentley A/R Exhibit D [FORM OF ASSIGNMENT AND ASSUMPTION PARENT CONTROL LETTER AGREEMENT] Interface, Inc. 0000 Xxxxx Xxxxx Xxxx Xxxxx 0000 Xxxxxxx, Xxxxxxx 00000 Attn: General Counsel Bentley Prince Street, Inc. 00000 Xxxx Xxx Xxxxxx Road City of Industry, California 91746 Attn: Xxxx Xxxxx Re: Accounts Receivable Payments from Customers of Interface, Inc. and Affiliates. Ladies and Gentlemen: This Assignment letter shall notify you that Interface, Inc. (“IFI”) has entered into that certain Seventh Amended and Assumption (this "ASSIGNMENT AND ASSUMPTION") is Restated Credit Agreement, dated as of June 24, 2011 (the Effective Date set forth below and is entered into “Senior Secured Credit Agreement”), by and between ______________ ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8among IFI, 2004 (as amendedInterfaceflor, modified, or extendedLLC, the "CREDIT AGREEMENT"banks and lending institutions listed on the signature pages thereof and such other banks and lending institutions which become lenders thereto (collectively, the “Lenders”), among USAA Mutual FundXxxxx Fargo Bank, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust National Association (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement“Domestic Agent”), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, N.A. and (ii) granted a first priority security interest to the extent permitted to be assigned under applicable lawDomestic Agent, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of itself and the series of funds comprising each such Investment Company as listed on SCHEDULE 2 Lenders, in, among other things, all IFI’s and its subsidiaries right, title, and interest in and to the IFI’s and its subsidiaries account receivables and all proceeds (including cash collections) thereof (collectively, the “Collateral”). We understand that (i) IFI, through its subsidiary, has sold all of its ownership interest in the stock of Bentley Prince Street, Inc. (“BPS”) to Bentley Prince Street Holdings, Inc., a Delaware corporation (“BPSH”), pursuant to that certain Stock Purchase Agreement dated on or about the date hereof (the “Stock Purchase Agreement”) among Interface Americas Holdings, LLC, Interface, Inc. and BPSH (the effective date and time of such sale of stock being referred to herein as the “Effective Time”), (ii) BPSH, or an affiliate thereof, including without limitation BPS and Prince Street, Inc. (referred to herein collectively as the “BPS Entities”) may receive payments in respect of the Collateral (such payment in respect of the Collateral being referred to herein as the “Interface A/R Collections”), and (iii) on and after the Effective Time the Interface A/R Collections may continue to be received in or deposited into one or more deposit accounts of one or more BPS Entities, maintained with Xxxxx Fargo Bank (such deposit accounts of the BPS Entities referred to herein collectively as the “BPSH Deposit Accounts”). By executing and delivering a copy of this letter, and in order to comply with the Senior Secured Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank , each of America, N.A., as the Administrative Agent under parties to this letter acknowledge and agree to the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.following:
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentBELMONT HOMES, Secretary & Counsel USAA Investment Management Company INC. By: ------------------------- Its: ------------------------- EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION"5.1(m)(ii) is dated as of the Effective Date set forth below and is entered into by and between _______________ ____, 1997 Xxxxxxx Xxxxx Xxxx & White LLP 0000 Xxxx Xxxxx Xxxxx 0000 Xxxxxxxxxx, Xxxxxxx 00000 Ladies and Gentlemen: In connection with the proposed merger of Crimson Acquisition Corp., a Mississippi corporation ("ASSIGNORSubsidiary"), with and into Belmont Homes, Inc., a Mississippi corporation ("Belmont"), pursuant to the terms of that certain Agreement and Plan of Merger dated August , 1997 (the "Merger Agreement") by and among Cavalier Homes, Inc., a Delaware corporation ("Cavalier"), Subsidiary and Belmont, as described in more detail in the Merger Agreement and the Registration Statement on Form S-4 filed by Cavalier with the Securities and Exchange Commission on_______________ , 1997, (the "ASSIGNEERegistration Statement"), as counsel to Cavalier you have been asked to render certain opinions pursuant to the requirements of Item 21(a) of Form S-4 under the Securities Act of 1933, as amended, and pursuant to Section 6.2(c) of the Merger Agreement, with respect to the federal income tax treatment of the Merger under the Internal Revenue Code of 1986, as amended (the "Code"). Capitalized terms used but herein and not otherwise defined herein shall have the meanings given to them in the Credit Agreement dated Merger Agreement. Pursuant to the Merger Agreement, Subsidiary will be merged with and into Belmont in accordance with Section 79-4-11.01 et seq. of the Mississippi Business Corporation Act and Belmont will be the surviving corporation, and all Belmont shares other than those held as of January 8, 2004 (as amended, modifiedtreasury stock by Belmont, or extendedheld by Cavalier or any of its subsidiaries, which will be canceled and retired, and other than those Belmont shares for which the holders have dissented from the Merger, demanded and perfected demand for payment of the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and fair value" in accordance with the Standard Terms and Conditions Mississippi Business Corporation Act, shall be converted into the right to receive eight tenths (0.8) shares of common stock of Cavalier. The Merger Agreement and the Credit Registration Statement describe other transactions that will be effected or undertaken in connection with the transactions contemplated by the Merger Agreement, including, without limitation, the treatment of Belmont's employee benefit plans and the treatment of certain options issued by Belmont, and other matters relating to the employees of Belmont. In connection with the opinions which you have been asked to render, you are entitled to rely upon the descriptions in the Merger Agreement and the Registration Statement as being a complete and accurate description of all the transactions to be effected and undertaken pursuant to the Merger Agreement. In connection with the opinions which you have been asked to render, and recognizing that you will rely on this letter in rendering said opinions, the undersigned, a duly authorized officer of Cavalier and acting in such capacity, hereby certifies that, to the best knowledge of the management of Cavalier, the following statements are correct and complete in all material respects as of the date hereof, and further certifies that the following statements will be correct and complete in all material respects as of the Effective Date inserted by Administrative Agent Time of the Merger. Insofar as contemplated below such certification pertains to any person (iincluding Belmont or any of its subsidiaries) all other than Cavalier and any of Assignor's rights and obligations its subsidiaries, such certification is only as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any knowledge of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is undersigned without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreementspecific inquiry.
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E III-4 39 ANNEX IV FORM OF ASSIGNMENT AND ASSUMPTION THELXX XXXX & XRIEST LLP OPINION Goldxxx, Xxchs & Co. 85 Bxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxdies and Gentlemen: This Assignment and Assumption firm has acted as special environmental counsel to Orion Power Holdings, Inc., a Delaware corporation (this the "ASSIGNMENT AND ASSUMPTIONCompany") is on certain limited matters with regard to the issuance and sale by the Company of up to $230,000,000 in aggregate principal amount of its [___] Convertible Senior Notes due 2008 (the "Notes") pursuant to the Underwriting Agreement, dated as of [ ], 2001 (the Effective Date set forth below and is entered into by and between ______________ ("ASSIGNORUnderwriting Agreement") between the Company and ______________the Underwriters named in Schedule I thereto (the "ASSIGNEEUnderwriters"). Capitalized terms used but This opinion is being delivered to you pursuant to Section 8(d) of the Underwriting Agreement. In our review, we have assumed the accuracy and completeness of all statements of fact relating to the Company and its operations and products and have made no independent investigation for purposes of rendering this opinion. This opinion relates solely to matters of environmental law. We are licensed and authorized to practice law under the laws of the United States and the states of New York and California. This opinion relates solely to environmental laws and legal documents or proceedings promulgated under the laws of the United States and the state of New York and we do not defined herein shall have offer any opinions regarding laws or legal proceedings outside those jurisdictions. We express no opinion regarding the meanings given requirements, status or need for FERC certification or compliance with FERC's guidelines, rules or regulations. Based on and subject to them the foregoing, we are of the opinion that the statements in the Credit Agreement dated as Prospectus under the captions "Risk Factors - The costs of January 8, 2004 (as amended, modified, or extended, the compliance with existing and future environmental regulations could adversely affect our cash flow and profitability" and "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto Risk Factors - We are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to stringent governmental regulation, which may be burdensome or lead to significant costs or liabilities" and [under the caption] "Business-Regulation-Environmental Regulation," solely insofar as such statements purport to describe the laws or legal documents or legal proceedings referred to therein, are fair and accurate summaries of such laws and regulations and such legal documents and proceedings in accordance with the Standard Terms and Conditions and the Credit Agreement, all material respects. This opinion speaks only as of the Effective Date inserted by Administrative Agent as contemplated below (i) all date hereof and not to any prior or subsequent date, and we assume no obligation to advise you of Assignor's rights and obligations as a Lender under any changes in the Credit Agreement and the other Loan Documents foregoing subsequent to the extent related to the amount and percentage interest identified below delivery of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or this opinion. This opinion has been prepared solely for your use in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any offering of the foregoingsecurities and may not be used, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law quoted or in equity related otherwise referred to or relied upon by any person or entity without the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in prior written consent of this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreementfirm.
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior s/ Xxx Xxxxxxxxx T. C. (Xxx) Xxxxxxxxx Vice PresidentPresident Enclosures February 25, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION 1998 Xxxx X. Xxxxxx, CFO The Pathways Group Inc. 00000 XX 000xx XX Xxxxxxxxxxx, XX 00000-0000 Dear Xx. Xxxxxx: This Assignment and Assumption Covenant Agreement (this "ASSIGNMENT AND ASSUMPTIONAgreement") is dated entered into as of the Effective Date date set forth below and is entered into by and between ______________ Union Bank of California, N.A. ("ASSIGNORBank") and ______________the undersigned ("ASSIGNEEBorrower") with respect to each and every extension of credit (whether one or more and to include extensions of credit under Conditional Sales Leases, collectively referred to as the "Loan") from Bank to Borrower. The Loan is evidenced by one or more Loan or Conditional Sales Lease agreements or other evidences of indebtedness, including each amendment, extension, renewal or replacement thereof, which are incorporated herein by this reference (whether one or more, collectively referred to as the "Loan"). Capitalized Any financial statement required by this Agreement must be prepared in accordance with generally accepted accounting principles and in a form satisfactory to the Bank. In consideration of the Loan, Bank and Borrower agree to the following terms used but and conditions: Liquidity Requirement Borrower will maintain at all times unencumbered and unrestricted liquid assets in an aggregate amount equal to at least $850,000.00. Liquid assets shall mean immediately available: cash, bank deposits or accounts; obligations of or guaranteed by the U.S. Government or an agency thereof; stocks, bonds and other debt instruments regularly traded on the New York or American stock exchanges or NASDAQ with a price per share not defined herein less than $7.50 and which can be readily converted into cash. In the event of xxxxx tion of this liquidity maintenance provision, Borrower shall have fifteen days from the meanings given event of default to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 provide additional cash collateral sufficient to fully secure all outstanding obligations to the Credit Agreement), the Lenders from time Bank. Financial Statements and Tax Returns Borrower to time party thereto, State Street provide Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of with a copy of which is hereby acknowledged by AssigneeBorrower's self-prepared financial statement, including balance sheet and income statement, within 30 days of each quarter end. The Standard Terms Borrower to provide Bank with a copy of Borrower's CPA audited financial statement within 120 days after each fiscal year end. This requirement does not express or imply and Conditions set forth in ANNEX 1 attached hereto are hereby agreed obligation on Bank's part to extend any credit to any party for any duration whatsoever. This Covenant Agreement supersedes and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (replaces in its capacity as a Lenderentirety that certain letter from Bank to Borrower dated September 8, 1997. Sincerely, /s/ Xxx Xxxxxxxxx T.C. (Xxx) against any PersonXxxxxxxxx Vice President ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, whether known or unknownEXTEND CREDIT, arising under or in connection with the Credit AgreementOR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. Accepted and Agreed The Pathways Group, any other Loan DocumentInc.("Borrower") By: /s/ Xxxx X. Xxxxxx ------------------------------- Xxxx X. Xxxxxx, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.CFO/Treasurer
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentXxxxxxx X. Xxxxxxx EXHIBIT 1.9(xiii)(B) -------------------- [Closing Date] AlliedSignal Inc. AS BAR LLC AS XXX Xxxxxxx LLC 000 Xxxxxxxx Xxxx Xxxxxxxxxx, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption XX The undersigned, on behalf of The Xxxxxxxxx Corporation (this "ASSIGNMENT AND ASSUMPTIONXxxxxxxxx") is dated confirms as follows: We refer to the Asset Purchase Agreement (the "Purchase Agreement") by and among AlliedSignal Inc. ("AlliedSignal"), AS BAR LLC ("Buyer"), Banner Aerospace, Inc. and the Sellers listed on Annex A thereto ("Sellers"), relating to the acquisition of all the assets of Sellers and the Business (as defined therein) and to the Xxxxxxx Agreement (as defined therein). This will confirm that, as of December 1, 1997 and at all times through and including the Effective Date set forth below and is entered into date hereof, neither Xxxxxxxxx nor any subsidiary or controlled entity of Xxxxxxxxx has had or has any plan or intention to acquire all or any substantial part of the stock, assets or business of Tri-Star Aerospace, Inc., M & M Aerospace Hardware, Inc. or WESCO Aircraft Hardware Corporation. We understand that you are relying upon the assurances provided in this letter as a material inducement to your consummating the transactions contemplated by and between the Purchase Agreement. THE XXXXXXXXX CORPORATION By_________________________ EXHIBIT 1.9(xiii)(C) -------------------- THE XXXXXXXXX CORPORATION [Closing Date] AlliedSignal Inc. AS BAR LLC AS XXX Xxxxxxx LLC 000 Xxxxxxxx Xxxx Xxxxxxxxxx, XX We refer to the Asset Purchase Agreement (the "Purchase Agreement") by and among AlliedSignal Inc. ("ASSIGNORAlliedSignal"), AS BAR LLC ("Buyer"), Banner Aerospace, Inc. ("Banner") and ______________the Sellers listed on Annex A thereto ("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENTSellers"), among USAA Mutual Fundrelating to the acquisition of all the assets of Sellers and the Business (as such terms are defined therein) and to the Xxxxxxx Agreement (as defined therein). In consideration of the benefits to be derived by The Xxxxxxxxx Corporation ("Xxxxxxxxx") from the transactions contemplated by the Purchase Agreement, Inc.this will confirm the agreement of Xxxxxxxxx that, USAA Investment Trustduring the period Banner is required to maintain its corporate existence pursuant to Section 4.17 of the Purchase Agreement, USAA Tax Exempt FundXxxxxxxxx shall take no action to authorize or implement (including, Inc.without limitation, and USAA State Tax-Free Trust voting for) any dissolution of Banner or other termination of Banner's corporate existence; provided, however, that (not i) -------- -------- Xxxxxxxxx may take action to dissolve Banner or otherwise terminate its existence if, prior to the consummation of such transaction, Xxxxxxxxx agrees in their respective individual capacities, but on behalf of and writing (for the benefit of the series Buyer Indemnified Parties as defined in the Purchase Agreement) to assume and become fully responsible for, pursuant to an agreement reasonably satisfactory in form and substance to AlliedSignal, all obligations of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as Banner under Article VII of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Purchase Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (Xxxxxxxxx may vote in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant theretofavor of, or otherwise take action to implement a merger or other business combination of Banner or a sale of substantially all its assets if (x) upon the loan transactions governed thereby or in any way based on or related to any consummation of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectivelysuch transaction, the "ASSIGNED Interest"). Such sale and assignment is without recourse successor in interest to Assignor andBanner (or the purchaser of such assets, except as expressly provided the case may be) in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] such transaction assumes in writing (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, Buyer Indemnified Parties as defined in the Credit Purchase Agreement.) and becomes fully responsible for, pursuant to an agreement reasonably satisfactory in form and substance to AlliedSignal, all of Banner's obligations under the Agreement (including, without limitation, Banner's obligations under Article VII) and (y) immediately after consummation of such transaction, such successor in interest (or purchaser, as the case may be) has a net worth of not less than the net worth then required to be maintained by Banner pursuant to Section 4.17 of the Purchase Agreement. We understand that you are relying upon the obligations set forth in this letter as a material inducement to your consummating the transactions contemplated by the Purchase Agreement. THE XXXXXXXXX CORPORATION
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentXXXXXXXXX Property Manager Agreed and Accepted: TENANT: By: Name: Title: STANDARD PARKING AGREEMENT Landlord shall make available to Tenant at the commencement of the term of this Lease the use of up to fifty-six (56) (5 per 1,000 rentable square feet), Secretary & Counsel USAA Investment Management Company of the Building's parking spaces (the "Spaces") in the Building parking lot (the "Parking Lot") on an unreserved basis. AT NO COST TO TENANT DURING THE LEASE TERM OR ANY EXTENSION THEREOF. It is hereby agreed and understood that Landlord's sole obligation hereunder is to make the Spaces available to Tenant. Tenant's right to the use of such Spaces shall be subject to compliance with the rules and regulations promulgated from time-to-time by the manager of such Parking Lot, and shall be subject to termination for violation of any such rules or regulations upon prior notice from such Landlord manager. Landlord shall have no liability whatsoever for any property damage, loss or theft and/or personal injury which might occur as a result of or in connection with the use of the Spaces by Tenant, its employees, agents, servants, customers, invitees and licensees, and Tenant hereby agrees to indemnify and hold Landlord harmless from and against any and all costs, claims, expenses, and/or causes of action that Landlord may incur in connection with or arising out of Tenant's use of the Spaces. The failure, for any reason, of Landlord to provide or make available the Spaces to Tenant or the inability of Tenant to utilize these Spaces shall under no circumstances be deemed a default by Landlord pursuant to the terms of the Lease or give rise to any claim or cause of action by Tenant against Landlord, the same being hereby expressly waived by Tenant. Tenants sole remedy for such failure shall be the equitable abatement of Tenant's parking rental fee. LETTER OF CREDIT Letter of Credit. As security for the performance by Tenant of all of the terms, covenants, and conditions required to be performed by it hereunder, Tenant agrees to deposit with Landlord on or before execution and delivery of this Lease by Tenant an irrevocable, transferable demand letter of credit in the amount of One Hundred Eighty Thousand and 00/100's Dollars ($180,000.00) in substantially the form attached hereto as Exhibit "K" issued by a bank reasonably acceptable to Landlord (the "Letter of Credit"). The Letter of Credit shall automatically renew every twelve months for a period through and including the last day of the thirty-sixth (36th) calendar month of the Lease Term. If after the last day of the twelfth (12th) calendar month of the Lease Term, no demand has been previously made and Tenant is not in default of this Lease, the then existing Letter of Credit shall be surrendered by Landlord provided a new Letter of Credit is delivered to Landlord in an amount which is Sixty Thousand and 00/100's Dollars ($60,000.00) less than the face value of such prior Letter of Credit. The Letter of Credit shall every twelve (12) months thereafter, until expiration of the Lease Term, continue to be replaced by a new Letter of Credit in an amount which is Sixty Thousand and 00/100's Dollars ($60,000.00) less than the face value of the then current Letter of Credit. Provided however that if an event of default has occurred anytime during the first thirty-six (36) months of the initial Lease Term, a Letter of Credit in the amount of Sixty Thousand and 00/100's Dollars ($60,000.00) shall remain in effect until the expiration of the Lease Term. Landlord may make a demand upon the Letter of Credit if Tenant is in default of the Lease, which default has not been cured within any applicable cure period, as defined under Section 22 of the Lease. If the cure period extends beyond the expiration date of the Letter of Credit or if Tenant fails to renew the Letter of Credit or Tenant has not delivered to Landlord an extended Letter of Credit or confirmation of the renewal of the Letter of Credit, as applicable, within five (5) business days of the expiration date, then Landlord may make demand upon the Letter of Credit and hold such sums as a security deposit, to be used, applied, or retained for the payment of any unpaid rent or for any other amount which Landlord may be required to expend by reason of the default of Tenant, including any damages or deficiency in the reletting of the Premises or any attorney's fees associated therewith, regardless of the whether the accrual of such damages or deficiency occurs before or after an eviction. Furthermore, if for any reason the Letter of Credit is dishonored or cannot reasonably be drawn upon (including any dissolution or insolvency of the issuer), then Tenant agrees within ten (10) days of receipt of written request from the Landlord to deliver a new letter of credit meeting the standards set forth herein and upon receipt thereof, the previous letter of credit shall be delivered to Tenant. Tenant's failure or the bank's refusal to renew a Letter of Credit or obtain or deliver a new letter of credit, if applicable, within the time frames set forth herein, shall be deemed an automatic default with no obligation of Landlord to give notice or opportunity to cure. 56 EXHIBIT E K FORM OF ASSIGNMENT AND ASSUMPTION This Assignment DEMAND LETTER OF CREDIT (Letterhead of Issuing Bank) , 2000 To: MONY/BBP Office I, L.L.C. c/o Transwestern Investment Company 150 Xxxxx Xxxxxx Xxxxx, Suite 800 Chicago, IL 60606 Attention: Asset Manager Re: MONY/BDP Office I, L.L.C. Lease 11550 Xxxx Xxxxxxxx Xxxx Xxxxxxxxx, XX 00000 Xxdies/Gentlemen: We hereby establish our Irrevocable Demand Transferable Letter of Credit and Assumption authorize you to draw on us at sight for the account of __________ _______________ up to the aggregate amount of _____________________ Dollars ($_________). Funds under this "ASSIGNMENT AND ASSUMPTION") is dated Letter of Credit are available to the holder hereof as follows: Any or all of the Effective sums hereunder may be drawn down at any time and from time to time from and after the date hereof to and including the Expiration Date set forth below (as hereinafter defined) by the holder hereof, or its authorized agent, when accompanied by this Letter of Credit and is entered into a written draft signed by and between _an officer, _____________ ("ASSIGNORHolder"). Drafts under this Letter of Credit must be marked: "Pay to Holder $_____________, which represents a full draw on Letter of Credit No. ___________" and must be presented at our office not later than the Expiration Date at 5:00 p.m. This Letter of Credit is transferable in its entirety. This Letter of Credit shall expire on ____________ (the "Expiration Date"); provided, however, this Letter of Credit shall be automatically extended for successive twelve (12) month periods unless we shall notify each of you in writing by United States certified mail at least thirty (30) days prior to the Expiration Date (whether the date set forth above or the Expiration Date as so extended) that this Letter of Credit will not be automatically extended on that Expiration Date. In no event shall the Expiration Date, as automatically extended, extend beyond . We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn on and in compliance with the terms of this credit that such draft will be duly honored on the day of presentation to the drawee and that any statutory, UCP, or other rights to delay honor of sight drafts, including such rights under Article 5, Section 5-112 (1)(a) and (b) of the Uniform Commercial Code, are hereby specifically waived. We further agree, upon the presentation of such draft to the drawee, to honor such draft by delivering on the date of the day of such presentation the amount of the draft, by official bank or certified funds check, to MONY/BDP Office I, L.L.C. ("MONY/BDP") and or, at MONY/BDP's sole option, by wiring on the day of such presentation Federal Funds in the amount of the draft into such account(s) as MONY/BDP may specifically direct, in writing. We hereby undertake that drafts drawn in compliance with the terms of this Letter of Credit will be duly honored by us. Very truly yours, (Name of Issuing Bank) By:______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.____________ Authorized Signature
Appears in 1 contract
Samples: Office Lease Agreement (Integrated Information Systems Inc)
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentPANTHER TRANSPORTATION II, Secretary & Counsel USAA Investment Management Company INC., an Ohio corporation, as the Borrower By Its EXHIBIT E 11.1(e) FORM OF ASSIGNMENT AMENDED AND ASSUMPTION This Assignment and Assumption SUBSTITUTED TERM NOTE $ January , 0000 Xxxxxxx, Xxxxxxxx FOR VALUE RECEIVED, the undersigned, PANTHER II TRANSPORTATION, INC., an Ohio corporation (this "ASSIGNMENT AND ASSUMPTION") is dated “Borrower”), hereby unconditionally promises to pay to the order of , a corporation (“Lender”), at Agent’s office at 000 Xxxxx Xxxxxx Xxxxx, Suite 4400, Chicago, Illinois 60606, or at such other place as the Agent may from time to time designate in writing, in lawful money of the Effective Date set forth below United States of America and in immediately available funds, the principal sum of AND NO/100 DOLLARS ($ ) , or, if less, the aggregate unpaid principal amount of all advances made pursuant to subsection 1.1(a) of the “Credit Agreement” (as hereinafter defined), at such times as are specified in, and in accordance with the provisions of, the Credit Agreement. This Amended and Substituted Term Note is entered into by referred to in and between ______________ ("ASSIGNOR") was executed and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given delivered pursuant to them in the that certain Amended and Restated Credit Agreement dated as of January 811, 2004 2006 (the “Credit Agreement”) among Borrower, Antares Capital Corporation, a Delaware corporation, as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and Agent for the benefit of all Lenders, and the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party lenders who are parties thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of to which reference is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made for a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as statement of the Effective Date inserted by Administrative Agent as contemplated below terms and conditions under which the Term Loan evidenced hereby was made and is to be repaid. All terms which are capitalized and used herein (iwhich are not otherwise specifically defined herein) all of Assignor's rights and obligations as a Lender under which are defined in the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to shall be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided used in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, Term Note as defined in the Credit Agreement. This Term Note is secured by the Collateral. Borrower further promises to pay interest on the outstanding unpaid principal amount hereof, as provided in the Credit Agreement, from the date hereof until payment in full hereof at the applicable rate specified in subsection 1.3(a) of the Credit Agreement; provided , however , that if Agent or Required Lenders so elect, following the occurrence and during the continuance of an Event of Default under subsections 4.1, 4.2(b), 7.1(a) or, as a result of the Borrower’s failure to observe any of the covenants contained in Article VI hereof, 7.1(c) (or automatically while any Event of Default under subsections 7.1(f), 7.1(g) or 7.1(m)(iv) exists), Borrower promises to pay to Lender interest on the unpaid principal amount hereof at the applicable rate specified in subsection 1.3(c) of the Credit Agreement. Interest shall be payable in arrears on the dates specified in subsection 1.3(b) of the Credit Agreement, on the date of any prepayment in full and at maturity, whether by acceleration or otherwise. If a payment hereunder becomes due and payable on a day that is not a Business Day, the payment may be made on the next succeeding Business Day, and such extension of time shall be included in the computation of the amount of interest due on such succeeding Business Day. Anything herein to the contrary notwithstanding, the obligations of Borrower hereunder shall be subject to the limitation that payments of interest shall not be required, for any period for which interest is computed hereunder, to the extent (but only to the extent) that contracting for or receiving such payment by the Lender would be contrary to the provisions of any law applicable to Lender limiting the highest rate of interest which may be lawfully contracted for, charged or received by Lender, and in such event Borrower shall pay Lender interest at the highest rate permitted by applicable law. If any suit or action is instituted or attorneys are employed to collect this Term Note or any part thereof, Borrower hereby promises and agrees to pay all costs of collection, including reasonable attorneys’ fees and court costs. Borrower and each endorser, guarantor and surety of this Term Note hereby waives presentment for payment, protest and demand, and notice of demand, protest, dishonor and nonpayment of this Term Note. Except as provided in the Credit Agreement, Borrower also waives all rights to notice and hearing of any kind upon the occurrence of an Event of Default and prior to the exercise by Agent of its rights to repossess the Collateral without judicial process or to replevy, attach or levy upon the Collateral without notice or hearing. THIS TERM NOTE HAS BEEN DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE AT NEW YORK, NEW YORK AND SHALL PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401 BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW. Whenever possible each provision of this Term Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Term Note shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Term Note. Whenever in this Term Note reference is made to Agent, Lender or Borrower, such reference shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Term Note shall be binding upon and shall inure to the benefit of such successors and assigns. Borrower’s successors and assigns shall include, without limitation, a receiver, trustee or debtor in possession of or for Borrower. This Term Note is in partial substitution for and replacement of certain Term Notes A and Term Notes B in the original aggregate principal amount of $ , made by Borrower to certain lenders under the Original Credit Agreement (as such Term Notes A and Term Notes B shall have been amended and substituted prior to the date hereof, collectively, the “Original Notes”), and is made in substitution of such Original Notes and not in satisfaction of any portion of such Original Notes. This Term Note shall not be deemed to constitute a novation.
Appears in 1 contract
Samples: Credit Agreement (Panther Expedited Services, Inc.)
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company SIGNATURE ------------------------- TITLE ---------------------------- DATE BANK USE ONLY Received by: ---------------- AUTHORIZED SIGNER Date: -------------------- Verified: -------------------- AUTHORIZED Date: ------------------- EXHIBIT E FORM REVOLVING LINE PROMISSORY NOTE $5,000,000 Palo Alto, California March 25, 1998 FOR VALUE RECEIVED, the undersigned, SILICON VALLEY INTERNET PARTNERS, a California corporation (the "Borrower"), promises to pay to the order of VENTURE BANKING GROUP, A DIVISION OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption CUPERTINO NATIONAL BANK (this "ASSIGNMENT AND ASSUMPTIONBank") is dated ), at such place as the holder hereof may designate, in lawful money of the Effective Date set forth below United States of America, the aggregate unpaid principal amount of all Advances made by Bank to Borrower under SECTION 2.1 of that certain Amended and is entered into by Restated Loan and Security Agreement between ______________ Borrower and Bank of even date herewith, as amended from time to time (the "ASSIGNOR") and ______________("ASSIGNEELoan Agreement"), up to a maximum principal amount of Five Million Dollars ($5,000,000). Capitalized Borrower shall also pay interest on the aggregate unpaid principal amount of such Advances at the rates and in accordance with the terms of the Loan Agreement. The entire principal amount and all accrued but unpaid interest thereon shall be due and payable on the Revolving Facility Maturity Date. All capitalized terms used herein but not defined herein shall have the meanings same meaning as given to them in the Credit Agreement Loan Agreement. Bank is hereby authorized by Borrower to endorse on Bank's books and records each Advance made by Bank under this Note and the amount of each payment or prepayment of principal of each such Advance received by Bank; it being understood, however, that failure to make any such endorsement (or any errors in notation) shall not affect the obligations of Borrower with respect to Advances made hereunder, and payments of principal by Borrower shall be credited to Borrower notwithstanding the failure to make a notation (or any errors in notation) thereof on such books and records. Borrower promises to pay Bank all costs and expenses of collection of this Note and to pay all reasonable attorneys' fees incurred in such collection or in any suit or action to collect this Note or in any appeal thereof. Borrower waives presentment, demand, protest, notice of protest, notice of dishonor, notice of nonpayment, and any and all other notices and demands in connection with the delivery, acceptance, performance, default or enforcement of this Note, as well as any applicable statute of limitations. No delay by Bank in exercising any power or right hereunder shall operate as a waiver of any power or right. Time is of the essence as to all obligations hereunder. This Note is issued pursuant to the Loan Agreement, which shall govern the rights and obligations of Borrower with respect to all obligations hereunder. This Note amends and restates in its entirety that certain Revolving Line Promissory Note made by Borrower in favor of Bank dated as July 25, 1997. BORROWER AND BANK HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. This Note shall be deemed to be made under, and shall be construed in accordance with and governed by the laws of January 8the State of California, 2004 (as amendedexcluding conflicts of laws principles. SILICON VALLEY INTERNET PARTNERS By: -------------------------- Printed Name: ---------------- Title: ----------------------- EXHIBIT F EQUIPMENT LINE PROMISSORY NOTE $1,250,000. Palo Alto, modifiedCalifornia March 25, or extended1998 FOR VALUE RECEIVED, the undersigned, SILICON VALLEY INTERNET PARTNERS, a California corporation (the "CREDIT AGREEMENTBorrower"), among USAA Mutual Fundpromises to pay to the order of VENTURE BANKING GROUP, Inc.A DIVISION OF CUPERTINO NATIONAL BANK ("Bank"), USAA Investment Trustat such place as the holder hereof may designate, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit lawful money of the series United States of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement)America, the Lenders aggregate unpaid principal amount of all Advances made by Bank to Borrower under SECTION 2.4 of that certain Amended and Restated Loan and Security Agreement between Borrower and Bank of even date herewith, as amended from time to time party thereto(the "Loan Agreement"), State Street Bank up to a maximum principal amount of One Million Two Hundred and Trust Company, as operations agent for such lenders, Fifty Thousand Dollars ($1,250,000). Borrower shall pay installments of principal and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed interest with respect to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and Equipment Advances in accordance with SECTIONS 2.4 and 2.6 of the Standard Terms Loan Agreement. All capitalized terms used herein but not defined herein shall have the same meaning as given to them in the Loan Agreement. Bank is hereby authorized by Borrower to endorse on Bank's books and Conditions records each Advance made by Bank under this Note and the Credit amount of each payment or prepayment of principal of each such Advance received by Bank; it being understood, however, that failure to make any such endorsement (or any errors in notation) shall not affect the obligations of Borrower with respect to Advances made hereunder, and payments of principal by Borrower shall be credited to Borrower notwithstanding the failure to make a notation (or any errors in notation) thereof on such books and records. Borrower promises to pay Bank all costs and expenses of collection of this Note and to pay all reasonable attorneys' fees incurred in such collection or in any suit or action to collect this Note or in any appeal thereof. Borrower waives presentment, demand, protest, notice of protest, notice of dishonor, notice of nonpayment, and any and all other notices and demands in connection with the delivery, acceptance, performance, default or enforcement of this Note, as well as any applicable statute of limitations. No delay by Bank in exercising any power or right hereunder shall operate as a waiver of any power or right. Time is of the essence as to all obligations hereunder. This Note is issued pursuant to the Loan Agreement, as of which shall govern the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement Borrower with respect to all obligations hereunder. This Note amends and the other Loan Documentsrestates in its entirety that certain Equipment Line Promissory Note made be Borrower in favor of Bank dated September 19, 1996. BORROWER AND BANK HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. This Note shall be deemed to be made under, and (ii) to shall be construed in accordance with and governed by the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any laws of the foregoingState of California, includingexcluding conflicts of laws principles. SILICON VALLEY INTERNET PARTNERS By: ---------------------------- Title: ------------------------- EXHIBIT G FORTUNE 500 ACCOUNTS XXXXXXX XXXXX & CO., but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest")INC. Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by AssignorBANKAMERICA CORPORATION AMERICAN EXPRESS COMPANY X.X. XXXXXX & CO. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT INCORPORATED XXXXX FARGO & COMPANY THE BANK OF NEW YORK COMPANY Tandem Compaq Deutshche Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.SCHEDULE
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E III-4 43 ANNEX IV FORM OF ASSIGNMENT AND ASSUMPTION THELXX XXXX & XRIEST LLP OPINION Goldxxx, Xxchs & Co. 85 Bxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxdies and Gentlemen: This Assignment and Assumption firm has acted as special environmental counsel to Orion Power Holdings, Inc., a Delaware corporation (this the "ASSIGNMENT AND ASSUMPTIONCompany") is on certain limited matters with regard to the issuance and sale by the Company of Common Stock, par value $.01 per share (the "Stock") pursuant to the Underwriting Agreement, dated as of the Effective Date set forth below and is entered into by and between May [______________ ], 2001 (the "ASSIGNORUnderwriting Agreement") between the Company and ______________the Underwriters named in Schedule I thereto (the "ASSIGNEEUnderwriters"). Capitalized terms used but This opinion is being delivered to you pursuant to Section 7(d) of the Underwriting Agreement. In our review, we have assumed the accuracy and completeness of all statements of fact relating to the Company and its operations and products and have made no independent investigation for purposes of rendering this opinion. This opinion relates solely to matters of environmental law. We are licensed and authorized to practice law under the laws of the United States and the states of New York and California. This opinion relates solely to environmental laws and legal documents or proceedings promulgated under the laws of the United States and the state of New York and we do not defined herein shall have offer any opinions regarding laws or legal proceedings outside those jurisdictions. We express no opinion regarding the meanings given requirements, status or need for FERC certification or compliance with FERC's guidelines, rules or regulations. Based on and subject to them the foregoing, we are of the opinion that the statements in the Credit Agreement dated as Prospectus under the captions "Risk Factors - The costs of January 8, 2004 (as amended, modified, or extended, the compliance with existing and future environmental regulations could adversely affect our cash flow and profitability" and "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto Risk Factors - We are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to stringent governmental regulation, which may be burdensome or lead to significant costs or liabilities" and [under the caption] "Business-Regulation-Environmental Regulation," solely insofar as such statements purport to describe the laws or legal documents or legal proceedings referred to therein, are fair and accurate summaries of such laws and regulations and such legal documents and proceedings in accordance with the Standard Terms and Conditions and the Credit Agreement, all material respects. This opinion speaks only as of the Effective Date inserted by Administrative Agent as contemplated below (i) all date hereof and not to any prior or subsequent date, and we assume no obligation to advise you of Assignor's rights and obligations as a Lender under any changes in the Credit Agreement and the other Loan Documents foregoing subsequent to the extent related to the amount and percentage interest identified below delivery of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or this opinion. This opinion has been prepared solely for your use in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any offering of the foregoingsecurities and may not be used, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law quoted or in equity related otherwise referred to or relied upon by any person or entity without the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in prior written consent of this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreementfirm.
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentCELADON GROUP, Secretary & Counsel USAA Investment Management Company INC., as Borrower Representative By: Name: Title: Exhibit B - 3 Calculation of Financial Covenants for Compliance Certificate EXHIBIT E FORM C TO CREDIT AGREEMENT (BORROWING BASE CERTIFICATE) EXHIBIT D TO CREDIT AGREEMENT (NOTICE OF ASSIGNMENT AND ASSUMPTION BORROWING) NOTICE OF BORROWING This Assignment Notice of Borrowing is given by _____________________, a Responsible Officer of Celadon Group, Inc., a Delaware corporation (the "Borrower Representative"), pursuant to that certain Credit and Assumption (this "ASSIGNMENT AND ASSUMPTION") is Security Agreement dated as of July 31, 2019 among the Effective Date Borrower Representative, the Subsidiaries of Borrower Representative party thereto as Borrowers and any additional Borrower that may hereafter be added thereto (collectively, "Borrowers"), MidCap Financial Trust, individually as a Lender and as Agent, and the financial institutions or other entities from time to time parties hereto, each as a Lender (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"). Capitalized terms used herein without definition shall have the meanings set forth below and is entered into by and between in the Credit Agreement. The undersigned Responsible Officer hereby gives notice to Agent of Borrower Representative's request to on _______________, 20__ borrow $_______________ ("ASSIGNOR") and of Loans on __________, 20____("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them Attached is a Borrowing Base Certificate complying in all respects with the Credit Agreement dated as of January 8and confirming that, 2004 (as amended, modified, or extendedafter giving effect to the requested advance, the "CREDIT AGREEMENT")Revolving Loan Outstandings will not exceed the Revolving Loan Limit. The undersigned officer hereby certifies that, among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., both before and USAA State Tax-Free Trust after giving effect to the request above (not in their respective individual capacities, but on behalf of and for the benefit a) each of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions conditions precedent set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed considerationSection 7.2 have been satisfied, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (ib) all of Assignor's rights the representations and obligations as a Lender under warranties contained in the Credit Agreement and the other Loan Financing Documents are true, correct and complete as of the date hereof, except to the extent related such representation or warranty relates to the amount a specific date, in which case such representation or warranty is true, correct and percentage interest identified below of all complete as of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documentsearlier date, and (iic) to no Default or Event of Default has occurred and is continuing on the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreementdate hereof.
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President1 Note: [The bracketed language will not be included for any Shareholder Designee who is not an officer, Secretary & Counsel USAA Investment Management Company or employee of Shareholder or any Shareholder Affiliate.] EXHIBIT E B FORM OF ASSIGNMENT AND ASSUMPTION IRREVOCABLE RESIGNATION December 20, 2019 Attention: Board of Directors Chaparral Energy, Inc. 000 Xxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx 00000 Re: Resignation Ladies and Gentlemen: This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") irrevocable resignation is delivered pursuant to the Support Agreement, dated as of December 20, 2019 (the Effective Date set forth below and is entered into “Agreement”), by and between ______________ among Strategic Value Partners, LLC, a Delaware limited liability company, and certain investment funds directly or indirectly managed by Strategic Value Partners, LLC, as listed on Schedule A to the Agreement ("ASSIGNOR") collectively, “Shareholder”), and ______________Chaparral Energy, Inc., a Delaware corporation ("ASSIGNEE"the “Company”). Capitalized terms used herein but not defined herein shall have the respective meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in fullthe Agreement. For an agreed consideration, Assignor hereby irrevocably sells and assigns to AssigneeEffective only upon, and Assignee hereby irrevocably purchases and assumes from Assignorsubject to, subject to and in accordance (1) such time as Shareholder, together with the Standard Terms and Conditions Shareholder Affiliates, continues to meet the One Directorship Ownership Condition and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant theretoTwo Directorship Ownership Condition, or the loan transactions governed thereby (2) Shareholder or any Shareholder Affiliate breaches in any way based on or related to material respect any of the foregoingterms of the Agreement and fails to cure such breach within twenty business days following the receipt of written notice thereof from the Company specifying such breach (it being understood that unintentional breaches of this Agreement that by their nature cannot be reversed or undone shall be deemed to have been cured for purposes hereof if Shareholder or a Shareholder Affiliate has taken commercially reasonable actions to reduce the adverse impact of such breach), including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, I hereby offer to resign from my position as a director of the Company and from any and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit committees of the series Board on which I serve, with such resignation effective immediately upon a determination by the Board (by vote of funds comprising each the Specified Independent Directors) to accept such Investment Company resignation in its sole discretion. This resignation may not be withdrawn by me at any time during which it is effective. Sincerely, By: EXHIBIT C PRESS RELEASE Oklahoma City, December 20, 2019 — Chaparral Energy, Inc. (NYSE: CHAP) today announced that its Board of Directors has appointed Xxxxxxx “Xxxxx” Xxxxxxxx as listed on SCHEDULE 2 President and Chief Executive Officer, effective December 20, 2019. Xx. Xxxxxxxx succeeds K. Xxxx Xxxxxxxx in those roles as Xx. Xxxxxxxx has resigned to pursue other interests. Xx. Xxxxxxxx is also joining the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank Board of America, N.A., Directors as are Xxxxxxx Xxxxxxxx and Xxxx “Mac” XxXxxxxxx. Xxxxxxx Xxxxxx is stepping down from the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit AgreementBoard.
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice PresidentArc Logistics Partners LP By: Arc Logistics GP LLC, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION its general partner By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Chief Executive Officer [Signature Page to Equity Commitment Letter from Arc Logistics Partners LP] Agreed to and accepted: Arc Terminals Joliet Holdings LLC By: Arc Terminals Holdings LLC, its sole member By: Arc Logistics LLC, its sole member By: Arc Logistics Partners LP, its sole member By: Arc Logistics GP LLC, its general partner By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Chief Executive Officer Schedule A Co-Sponsor Dollar Commitment Arc Logistics Partners LP $ 129,600,000.00 Aircraft Services Corporation $ 86,400,000.00 Schedule A EXECUTION VERSION AIRCRAFT SERVICES CORPORATION February 19, 2015 Arc Terminals Joliet Holdings LLC c/o Arc Logistics Partners LP 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Ladies and Gentlemen: This Assignment letter agreement sets forth the commitment of Aircraft Services Corporation (“Sponsor”), on the terms and Assumption subject to the conditions described below, to purchase, or cause the purchase of, the equity of Arc Terminals Joliet Holdings LLC, a Delaware limited liability company (this "ASSIGNMENT AND ASSUMPTION"“Buyer”) is in connection with the transaction contemplated by that certain Membership Interest Purchase Agreement dated as of the Effective Date set forth below and is entered into by and between ______________ ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 date hereof (as amended, modifiedrestated, supplemented or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders otherwise modified from time to time party theretotime, State Street Bank the “Purchase Agreement”) and entered into concurrently herewith by and among Buyer and CenterPoint Properties Trust Company(“Seller”), as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of pursuant to which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from AssignorBuyer has agreed, subject to and in accordance with the Standard Terms terms and Conditions conditions thereof, to purchase from Seller all of Seller’s right, title and the Credit Agreement, as interest in all of the Effective Date inserted by Administrative Agent as contemplated below issued and outstanding limited liability company interests of Joliet Bulk, Barge & Rail LLC, a Delaware limited liability company (i) all of Assignor's rights the “Company”; and obligations as a Lender under such acquisition, the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, “Transaction”). Each capitalized term used but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or defined in equity related this letter agreement will have the meaning ascribed to it in the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor andPurchase Agreement, except as expressly otherwise provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreementbelow.
Appears in 1 contract
Samples: Interim Investors Agreement (Arc Logistics Partners LP)
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President[Name] SCHEDULE A Key Corporate Capital Inc., Secretary as Administrative Agent West Greenwich Technology Associates, L.P. Dechert, Price & Counsel USAA Investment Management Company Rhoads Post Office Square Funding Inc. The Xxxx xx Xxxx Scotia Crxxxx Xyonnais New York Branch EXHIBIT E C [Form of Authority and Enforceability Opinion-Omitted] EXHIBIT D FORM OF ASSIGNMENT FUNDING REQUEST FROM: GTECH CORPORATION TO: KEY CORPORATE CAPITAL INC., AS ADMINISTRATIVE AGENT, EACH LENDER AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is THE GENERAL PARTNER RE: REQUEST FOR FUNDING Capitalized terms used herein without definition have the meanings set forth in Appendix A to the Participation Agreement, dated as of the Effective Date set forth below and is entered into by and between December ______________ ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 2001 (as amended, modified, amended or extendedsupplemented, the "CREDIT AGREEMENTParticipation Agreement"), among USAA Mutual FundGTECH Corporation, as Lessee ("Lessee"), West Greenwich Technology Associates, L.P., as Lessor ("Lessor") and Key Corporate Capital Inc., USAA Investment Trustas Administrative Agent (Administrative Agent"), USAA Tax Exempt Fundfor each of the Lenders now or hereafter party to the Loan Agreement (the "Lenders"), and Post Office Square Funding Inc., as general partner of the Lessor ("General Partner"). Pursuant to Section 3.1(a)(xvi) of the Participation Agreement, the undersigned hereby requests a funding in immediately available funds of the Capital Contribution and USAA State Tax-Free Trust (not the Loans in their respective individual capacities, but on behalf an aggregate amount equal to $ _. Such requested funding consists of the Capital Contribution in an amount equal to $1,300,000 and of Loans in an aggregate amount equal to $30,000,000. The undersigned hereby certifies to the Lenders and Lessor that: The proceeds of the Funding to be made pursuant to this Request will be used solely for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions purposes set forth in ANNEX 1 attached hereto are hereby agreed to the Participation Agreement. The Lessee represents and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below warrants that (i) all no Lease Event of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan DocumentsDefault or Lease Default exists, and (ii) the representations made by it under Section 4.1 of the Participation Agreement are true and correct in all material respects as though made on and as of this date. All conditions for Funding set forth in Sections 2.2 and 3.1 of the Participation Agreement have been satisfied. The date for funding requested under this Request is December _, 2001 which date is at least three (3) Business Days from the date of this Request. Upon acceptance of this Request, the funding of the related Loan and Capital Contribution should be directed to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (account set forth in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Escrow Agreement, any other Loan Documentdated as of December _, any other documents or instruments delivered 2001, among Lessor and Administrative Agent, Commonwealth Land Title Insurance Corporation, as escrow agent in accordance with Section 2.2(e) thereof. This Request is being submitted to induce the Lenders to make their Loans and General Partner to make its Capital Contribution pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights Participation Agreement and obligations sold it is intended that the Lenders and assigned pursuant to CLAUSE (I) above (General Partner shall rely upon the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreementsame.
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E ANNEX IV FORM OF ASSIGNMENT AND ASSUMPTION XXXXXX XXXX & PRIEST LLP OPINION Xxxxxxx, Sachs & Co. 00 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: This Assignment and Assumption firm has acted as special environmental counsel to Orion Power Holdings, Inc., a Delaware corporation (this the "ASSIGNMENT AND ASSUMPTIONCompany") is on certain limited matters with regard to the issuance and sale by the Company of Common Stock, par value $.01 per share (the "Stock") pursuant to the Underwriting Agreement, dated as of [ ], 2000 (the Effective Date set forth below and is entered into by and between ______________ ("ASSIGNORUnderwriting Agreement") between the Company and ______________the Underwriters named in Schedule I thereto (the "ASSIGNEEUnderwriters"). Capitalized terms used but This opinion is being delivered to you pursuant to Section 8(d) of the Underwriting Agreement. In our review, we have assumed the accuracy and completeness of all statements of fact relating to the Company and its operations and products and have made no independent investigation for purposes of rendering this opinion. This opinion relates solely to matters of environmental law. We are licensed and authorized to practice law under the laws of the United States and the states of New York and California. This opinion relates solely to environmental laws and legal documents or proceedings promulgated under the laws of the United States and the state of New York and we do not defined herein shall have offer any opinions regarding laws or legal proceedings outside those jurisdictions. We express no opinion regarding the meanings given requirements, status or need for FERC certification or compliance with FERC's guidelines, rules or regulations. Based on and subject to them the foregoing, we are of the opinion that the statements in the Credit Agreement dated as Prospectus under the captions "Risk Factors-The costs of January 8, 2004 (as amended, modified, or extended, the compliance with existing and future environmental regulations could adversely affect our cash flow and profitability" and "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State TaxRisk Factors-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto We are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to stringent governmental regulation, which may be burdensome or lead to significant costs or liabilities" and [under the caption] "Business-Regulation-Environmental Regulation," solely insofar as such statements purport to describe the laws or legal documents or legal proceedings referred to therein, are fair and accurate summaries of such laws and regulations and such legal documents and proceedings in accordance with the Standard Terms and Conditions and the Credit Agreement, all material respects. This opinion speaks only as of the Effective Date inserted by Administrative Agent as contemplated below (i) all date hereof and not to any prior or subsequent date, and we assume no obligation to advise you of Assignor's rights and obligations as a Lender under any changes in the Credit Agreement and the other Loan Documents foregoing subsequent to the extent related to the amount and percentage interest identified below delivery of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or this opinion. This opinion has been prepared solely for your use in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any offering of the foregoingsecurities and may not be used, includingquoted or otherwise referred to or relied upon by any person or entity without the prior written consent of this firm. Very truly yours, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.XXXXXX XXXX & PRIEST LLP -------------------------------
Appears in 1 contract
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated as of the Effective Date set forth below and is entered into by and between BANK USE ONLY Signature Received by: __________________ ("ASSIGNOR") and Date: _________________________ _____________________________ Reviewed by:___________________ TITLE Compliance Status: Yes No ------------------------------- _____________________________ DATE REVOLVING PROMISSORY NOTE $1,000,000 Waltham, Massachusetts February 18, 1997 FOR VALUE RECEIVED, the undersigned, MAKER COMMUNICATIONS, INC., a Delaware corporation (the "Borrower), promises to pay to the order of Silicon Valley Bank, a California-chartered bank ("ASSIGNEE"). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement dated as of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENTBank"), among USAA Mutual Fundat such place as the holder hereof may designate, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit lawful money of the series United States of Funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement)America, the Lenders aggregate unpaid principal amount of all advances ("Advances") made by Bank to Borrower in accordance with the terms of the Loan and Security Agreement between Borrower and Bank of even date herewith, as amended from time to time party thereto(the "Loan Agreement"), State Street Bank and Trust Companyup to a maximum principal amount of ONE MILLION AND NO/100THS Dollars ($1,000.000), as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein until paid in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to Borrower shall also pay interest on the aggregate unpaid principal amount of such Advances at the rates and in accordance with the Standard Terms terms of the Loan Agreement. The entire principal amount and Conditions all accrued interest shall be due and payable on February 17, 1998. Borrower irrevocably waives the right to direct the application of any and all payments at any time hereafter received by Bank from or on behalf of Borrower, and Borrower irrevocably agrees that Bank shall have the continuing exclusive right to apply any and all such payments against the then due and owing obligations of Borrower as Bank may deem advisable. In the absence of a specific determination by Bank with respect thereto, all payments shall be applied in the following order: (a) then due and payable fees and expenses; (b) then due and payable interest payments and mandatory prepayments; and (c) then due and payable principal payments and optional prepayments. Bank is hereby authorized by Borrower to endorse on Bank's books and records each Advance made by Bank under this Note and the Credit Agreementamount of each payment or prepayment of principal of each such Advance received by Bank; it being understood, however, that failure to make any such endorsement (or any error in notation) shall not affect the obligations of Borrower with respect to Advances made hereunder, and payments of principal by Borrower shall be credited to Borrower notwithstanding the failure to make a notation (or any errors in notation) thereof on such books and records. Borrower promises to pay Bank all costs and expenses of collection of this Note and to pay all reasonable attorneys' fees incurred in such collection, whether or not there is a suit or action, or in any suit or action to collect this Note or in any appeal thereof. Borrower waives presentment, demand, protest notice of protest, notice of dishonor, notice of nonpayment and any and all other notices and demands in connection with the delivery, acceptance, performance, default or enforcement of this Note, as well as any applicable statutes of limitations. No delay by Bank in exercising any power or right hereunder shall operate as a waiver of any power or right. Time is of the Effective Date inserted by Administrative Agent essence as contemplated below (i) to all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents hereunder. This Note is issued pursuant to the extent related to Loan Agreement which shall govern the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor Borrower with respect to all obligations hereunder. This Note shall be deemed to be made under, and shall be construed in accordance with and governed by, the laws of the Commonwealth of Massachusetts, excluding conflicts of laws principles. Executed as an instrument under seal. MAKER COMMUNICATIONS, INC. By: /s/ XXXXXXX XXXXXXX --------------------------- Xxxxxxx Xxxxxxx, President ATTEST /s/ XXXXXXXX X. XXXXX ---------------------- EQUIPMENT LINE PROMISSORY NOTE $1,000,000 Waltham, Massachusetts February 18, 1997 FOR VALUE RECEIVED, the Credit undersigned, MAKER COMMUNICATIONS, INC., a Delaware corporation (the "Borrower"), promises to pay to the order of Silicon Valley Bank, a California-chartered bank ("Bank"), at such place as the holder hereof may designate, in lawful money of the United States of America, the aggregate unpaid principal amount of all advances ("Equipment Advances") made by Bank to Borrower in accordance with the terms of the Loan and Security Agreement between Borrower and Bank of even date herewith, as amended from time to time (the "Loan Agreement"), up to a maximum principal amount of ONE MILLION AND NO/100THS Dollars ($1,000,000), until paid in full. Borrower shall also pay interest on the aggregate unpaid principal amount of such Equipment Advances at the rates and in accordance with the terms of the Loan Agreement. The entire principal amount and all accrued interest shall be due and payable on JUNE 5, 2000. Borrower irrevocably waives the right to direct the application of any and all payments at any time hereafter received by Bank from or on behalf of Borrower, and Borrower irrevocably agrees that Bank shall have the continuing exclusive right to apply any and all such payments against the then due and owing obligations of Borrower as Bank may deem advisable. In the absence of a specific determination by Bank with respect thereto, all payments shall be applied in the following order: (a) then due and payable fees and expenses; (b) then due and payable interest payments and mandatory prepayments; and (c) then due and payable principal payments and optional prepayments. Bank is hereby authorized by Borrower to endorse on Bank's books and records each Advance made by Bank under this Note and the other Loan Documentsamount of each payment or prepayment of principal of each such Advance received by Bank; it being understood, however, that failure to make any such endorsement (or any error in notation) shall not affect the obligations of Borrower with respect to Equipment Advances made hereunder, and payments of principal by Borrower shall be credited to Borrower notwithstanding the failure to make a notation (iior any errors in notation) thereof on such books and records. Borrower promises to the extent permitted pay Bank all costs and expenses of collection of this Note and to be assigned under applicable lawpay all reasonable attorneys' fees incurred in such collection, all claimswhether or not there is a suit or action, suitsor in any suit or action to collect this Note or in any appeal thereof. Borrower waives presentment, causes demand, protest notice of actionprotest, notice of dishonor, notice of nonpayment, and any and all other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or notices and demands in connection with the Credit delivery, acceptance, performance, default or enforcement of this Note, as well as any applicable statutes of limitations. No delay by Bank in exercising any power or right hereunder shall operate as a waiver of any power or right. Time is of the essence as to all obligations hereunder. This Note is issued pursuant to the Loan Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to which shall govern the rights and obligations sold of Borrower with respect to all obligations hereunder. This Note shall be deemed to be made under, and assigned pursuant to CLAUSE (I) above (the rights shall be construed in accordance with and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectivelygoverned by, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit laws of the series Commonwealth of funds comprising each such Investment Company Massachusetts, excluding conflicts of laws principles. Executed as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of Americaan instrument under seal. MAKER COMMUNICATIONS, N.A.INC. By: /s/ XXXXXXX XXXXXXX --------------------------- Xxxxxxx Xxxxxxx, as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.President
Appears in 1 contract
Samples: Loan and Security Agreement (Maker Communications Inc)
Sincerely,. S/ MARK S. HOWARD -------------------------------------- Mark S. Howard Senior By: ------------------------------------ Name: Title: SCHEDULE 2 TO EXHIBIT D-2 AUTHORIZED REPRESENTATIVES OF BUYER NAME TITLE AUTHORIZED SIGNATURE ---- ----- -------------------- EXHIBIT E LIMITED POWER OF ATTORNEY Reference is hereby made to the Custodial Agreement (the "Agreement"), dated March 11, 2005, among Deutsche Bank National Trust Company ("Custodian"), Credit Suisse First Boston Mortgage Capital LLC ("Buyer") and MortgageIT, Inc. and MortgageIT Holdings, Inc. ("Sellers"). Any capitalized term not otherwise defined herein shall have the meaning assigned to such term in the Agreement. Know all people by these presents, that each Seller, a corporation organized and existing under the laws of the State of ____, does hereby make, constitute and appoint, ______, ______, or ______, or any officer assigned to the [Corporate Trust Group] (or any successor thereto), including any Vice President, Secretary & Counsel USAA Investment Management Company EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated as Assistant Vice President, Trust Officer, any Assistant Secretary, any trust officer or any other officer of Custodian customarily performing functions similar to those performed by any of the Effective Date set forth below above designated officers and is entered into by having direct responsibility for the administration of the Agreement, each acting singly and between independently of the other, as its true and lawful attorney for it and in its name, place and stead to endorse a Mortgage Note that has not otherwise been endorsed as follows: "Pay to the order of _________________ ("ASSIGNOR") and ______________("ASSIGNEE"). Capitalized terms used but not defined herein By: ------------------------------------ Its: Attorney-in-Fact" provided, however, a Mortgage Note shall have the meanings given only be endorsed pursuant to them in the Credit Agreement dated as this Power of January 8, 2004 (as amended, modified, or extended, the "CREDIT AGREEMENT"), among USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust (not in their respective individual capacities, but on behalf of and for the benefit of the series of Funds comprising each such Investment Company as listed on SCHEDULE 2 Attorney pursuant to the Credit Agreement), the Lenders from time to time party thereto, State Street Bank terms and Trust Company, as operations agent for such lenders, and Bank of America, N.A., as administrative agent for such lenders, receipt of a copy of which is hereby acknowledged by Assignee. The Standard Terms and Conditions conditions set forth in ANNEX 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, Assignor hereby irrevocably sells and assigns to Assignee, and Assignee hereby irrevocably purchases and assumes from Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as Section 3(b)(ii) of the Effective Date inserted by Administrative Agent as contemplated below (i) all of Assignor's rights and obligations as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of Assignor under the Credit Agreement and the other Loan Documents, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action, and any other right of Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Document, any other documents or instruments delivered pursuant thereto, or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims, and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to CLAUSE (I) above (the rights and obligations sold and assigned pursuant to CLAUSES (I) and (II) above, collectively, the "ASSIGNED Interest"). Such sale and assignment is without recourse to Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by Assignor. ================================================================================ 1 ASSIGNOR: -------------------------------------------------------------------------------- 3 BORROWERS USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust [any new Investment Company] (not in their individual capacities but on behalf of and for the benefit of the series of funds comprising each such Investment Company as listed on SCHEDULE 2 to the Credit Agreement) -------------------------------------------------------------------------------- 4 ADMINISTRATIVE AGENT Bank of America, N.A., as the Administrative Agent under the Credit Agreement -------------------------------------------------------------------------------- 5 EFFECTIVE DATE2 -------------------------------------------------------------------------------- 1 Must be Eligible Assignee, as defined in the Credit Agreement.MORTGAGE FILE
Appears in 1 contract
