LENDER ASSIGNMENT AGREEMENT
THIS LENDER ASSIGNMENT AGREEMENT (the "ASSIGNMENT") is made and entered into as
of May 4, 1998 by and between ABN AMRO BANK N.V. (the "ASSIGNOR") and BANK
AUSTRIA AKTIENGESELLSCHAFT, (the "ASSIGNEE").
WITNESSETH
WHEREAS, an Amended and Restated Credit Agreement dated as of November
1, 1997, the ("AGREEMENT") has been entered into among Xxxxxx Corporation, a
Delaware corporation (the "COMPANY"), certain Designated Subsidiaries of the
Company, the financial institutions from time to time party thereto including
the Assignor (individually a "LENDER" and collectively, the "LENDERS"), and Bank
of America National Trust and Savings Association as agent for the Lenders (in
such capacity, the "AGENT"). Unless otherwise defined herein, terms defined in
the Agreement are used herein with the same meanings; and
WHEREAS, pursuant to the Agreement, on the date hereof, and without
giving effect to any other assignments to become effective on the Assignment
Effective Date (hereafter defined) or any other assignments thereof which have
not yet become effective (a) the Assignor's Commitment (the "Assignor's
Commitment") is the amount specified in ITEM 1 of SCHEDULE 1 hereto, (b) the
aggregate principal amount of outstanding Reference Rate Loans, Eurodollar
Loans, Eurocurrency Loans and Quoted Rate Loans made by the Assignor to the
Borrowers pursuant to the Assignor's Commitment is specified in ITEM 2 of
SCHEDULE 1 hereto and (c) the Assignor's Percentage is the percentage set forth
in ITEM 3 of SCHEDULE 1 hereto; and
WHEREAS, the Assignor wishes to sell to the Assignee, and the Assignee
wishes to purchase and assume from the Assignor (a) the portion of the
Assignor's Commitment specified in ITEM 4 of SCHEDULE 1 hereto (the "ASSIGNED
COMMITMENT") and (b) the portion of the Assignor's outstanding Reference Rate
Loans, Eurodollar Loans, Eurocurrency Loans and Quoted Rate Loans Revolving
Loans (the "ASSIGNED LOANS"), specified in Item 5 of SCHEDULE 1 hereto.
NOW, THEREFORE, the parties hereto agree as follows:
1. Subject to the terms and conditions set forth herein, the Assignor
hereby sells and assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, WITHOUT RECOURSE, as of the Assignment Effective Date
and without giving effect to other assignments to become effective on the
Assignment Effective Date or any other assignments thereof which have not yet
become effective (a) all right, title and interest of the Assignor to the
Assigned Loans and (b) all obligations of the Assignor under the Agreement with
respect to the Assigned Commitment including, without limitation, any Notes held
by the Assignor and any interest, fees and commissions which accrue after the
Assignment Effective Date; PROVIDED, HOWEVER, that Assignee does not purchase or
assume any liability resulting from acts or omissions of Assignor occurring
prior to the Assignment Effective Date. After giving effect to the transactions
contemplated by this Assignment and Assumption, (i) the amount of the Assigned
Loans shall be the amounts set forth in ITEM 5 of SCHEDULE 1 and (ii) Assignor's
and Assignee's respective Percentages and Commitments shall be set forth in Item
6 of SCHEDULE I hereto.
2. The Assignor (i) represents and warrants that the information set
forth in ITEMS 1, 2 and 3 is true and correct as of the date hereof; (ii)
represents and warrants that (a) it is the legal and beneficial owner of the
Loans and Commitments being assigned by it hereunder, (b) it has the full power
and legal right to execute and deliver this Assignment and to perform its
obligations hereunder, (c) the execution, delivery of this Assignment, and the
performance by it of its obligations hereunder, have been duly authorized by all
necessary corporate or other action and do not violate any provisions of its
charter or by-laws or any contractual obligation or requirement of law binding
upon it and (d) the Assigned Loans and Assigned Commitment are free and clear of
any adverse claim; (iii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made by any Borrower or any other Person in or in connection with the Agreement
or any other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Agreement or any other
Loan Documents or any other instrument or document furnished by or on behalf of
any Borrower or any other Person pursuant thereto; (iv) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or any other Person or the performance or observance
by any Borrower or any other Person of any of its obligations under the
Agreement or any other Loan Documents or any agreement, instrument or document
furnished pursuant thereto; and (v) represents and warrants that, to its
knowledge, the Agent has not notified the Company of the existence of any
Default which currently exists.
3. The Assignee (i) represents and warrants that (a) it has the full
power and legal right to execute and deliver this Assignment and to perform its
obligations hereunder and, to the extent of its interest therein, under the
Agreement and the other Loan Documents and (b) the execution and delivery by it
of this Assignment, and the performance by it of its obligations hereunder and,
to the extent of its interest therein, under the Agreement and the other Loan
Documents, have been duly authorized by all necessary corporate or other action
and do not violate any provisions of its charter or by-laws or any contractual
obligation or requirement of law binding upon it; (ii) confirms that it has
received a copy of the Agreement and the other Loan Documents, together with
copies of the most currently available financial statements referred to in
SECTION 7.1.1 of the Agreement and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment; (iii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Agreement; (iv) appoints and authorizes the Agent to take such actions on its
behalf and to exercise such powers under the Agreement and the other Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will become a
party to and a Lender under the Agreement on the Assignment Effective Date and
perform in accordance with their terms all of the obligations which by the terms
of the Agreement are required to be performed by it as a Lender; (vi) specifies
as its address for notices the office set forth in ITEM 7 of SCHEDULE 1 hereto;
and (vii) agrees that no fee is payable by Borrower to Assignee in connection
with the execution and delivery of this Assignment and Assumption.
4. The Assignor agrees that the Assignor shall pay to the Agent, for
the account of the Agent, any processing fee required by the Agent to be paid to
it pursuant to SECTION 10.11.1 of the Agreement. The Assignor further agrees
that, within one Banking Day following receipt of new Notes duly executed by a
Borrower reflecting the amount of the Assigned Commitment and the Assigned
Loans, it will return its superseded Note(s) to the Agent for the account of
such Borrower.
5. The obligations of the Assignee and the Assignor hereunder shall be
subject to the requirement that the Assignor (a) shall have received good funds
representing payment in full of all amounts due from the Assignee for purchase
of the Commitment and Loans being purchased by and assigned to the Assignee and
(b) complied with all other provisions of this Assignment and all applicable
provisions of SECTION 10.11 of the Agreement. The effective date of this
Assignment (the "ASSIGNMENT EFFECTIVE DATE") shall be May 4, 1998 or, if later,
the first Banking Day on which the requirements of the preceding sentence of
this SECTION 5 have been satisfied. Following the execution of this Assignment
by the Assignor and the Assignee and the acknowledgment of the same by the
Company and each other Borrower, it will be delivered to the Agent for
acceptance and recording by the Agent.
6. Upon such acceptance and recording, as of the Assignment
Effective Date, (i) the Assignee shall be a party to the Agreement and, to the
extent provided in this Assignment, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and (ii) the Assignor shall, to
the extent provided in this Assignment, relinquish its rights and be released
from its obligations under the Agreement and under the other Loan Documents.
7. Upon such acceptance and recording, from and after the Assignment
Effective Date, the Agent shall make all payments received by it under the
Agreement and the other Loan Document in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Agreement for periods prior to the
Assignment Effective Date directly between themselves.
8. This Assignment shall be governed by, and construed in accordance
with, the internal laws and decisions (as opposed to conflicts of law
provisions) of the State of Illinois.
9. This Assignment shall inure to the benefit of and be binding upon
successors and assigns of the Assignor and the Assignee.
10. This Assignment shall supersede any prior agreement or
understanding between the parties (other than the Agreement and the other Loan
Documents) as to the subject matter hereof. This Assignment shall be deemed to
be a Loan Documents for all purposes under the Agreement.
11. This Assignment may be executed by Assignor and Assignee in any
number of counterparts and on the same or separate counterparts, each of which,
when executed and delivered, shall be an original but all of which taken
together, shall be but a single Lender Assignment Agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have executed this
Assignment and Assumption as of this day of this 4th day of May, 1998.
ABN AMRO BANK N.V., Assignor
By: /s/ XXXX XXXXXXXXX
---------------------------
Title: ASSISTANT VICE PRESIDENT
By: /s/ XXXXX XXXXXXXX
---------------------------
Title: VICE PRESIDENT
BANK AUSTRIA AKTIENGESELLSCHAFT, ASSIGNEE
By: /s/ J. XXXXXXX XXXX
---------------------------
Title: FIRST VICE PRESIDENT
By: /s/ XXXXXXX X. XXXX
---------------------------
Title: VICE PRESIDENT
Pursuant to SECTION 10.11.1 of the Agreement, the Company, on behalf of
itself and each of the Designated Subsidiaries, hereby agrees, accepts and
consents to the foregoing Assignment. The Company further agrees, on behalf of
itself and each of the Designated Subsidiaries that, within five Banking Days
from Assignment Effective Date, it will execute and deliver, and will cause each
Designated Subsidiary to execute and deliver, to the Agent, a new Note to the
Assignee and the Assignor, reflecting the amount of the Assignor's Commitment
assigned to the Assignee pursuant to this Assignment, and the Assignor's
Commitment less the Assigned Commitment respectively.
XXXXXX COPRORATION
By: /s/ XXXX XXXXXXXXX
-------------------
XXXX XXXXXXXXX
Title: TREASURER
Date: 5-22-98
Pursuant to SECTION 10.11.1 of the Agreement the undersigned, as Agent
for the Lenders (i) accepts the foregoing Assignment and (ii) agrees that the
execution and delivery of the Assignment shall not alter the rights and
obligations of the undersigned as Agent.
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
as Agent for the lenders
By: /s/ XXXXX X. XXXXXXXX
----------------------
XXXXX X. XXXXXXXX
Title: VICE PRESIDENT
Date:
By:
Title:
Date:
SCHEDULE 1
to
Lender Assignment Agreement
dated as of May 4, 1998 between
ABN AMRO BANK N.V., Assignor
and
BANK AUSTRIA AKTIENGESELLSCHAFT, Assignee
ITEM 1. Assignor's Commitment $ 12,500,000
------
ITEM 2. Assignor's Loans Outstanding
------ COMPANY:
Reference Rate Loans $ 0
Eurodollar Loans $ 0
Eurocurrency Loans $ 5,250,000 FRF
Quoted Rate Loans $ 4.0625%
[DESIGNATED SUBSIDIARY]
Reference Rate Loans $
Eurodollar Loans $
Eurocurrency Loans $
Quoted Rate Loans $
ITEM 3. Assignor's Percentage .50%
------
ITEM 4. Amount of Assigned Commitment $ 6,250,000
------
ITEM 5. Amount of Assigned Loans
------ COMPANY:
Reference Rate Loans $ 0
Eurodollar Loans $ 0
Eurocurrency Loans $ 2,625,000 FRF
Quoted Rate Loans $
[DESIGNATED SUBSIDIARY]
Reference Rate Loans $
Eurodollar Loans $
Eurocurrency Loans $
Quoted Rate Loans $
ITEM 6. Commitments and Percentage After Assignment
------ Commitments
a. Assignor $ 2,625,000 FRF
b. Assignee $ 2,625,000 FRF
Percentages
a. Assignor .50%
b. Assignee .50%
ITEM 7. Notice Address of Assignee
------
000 Xxxxx Xxxxxx
00-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
