ASSIGNMENT AND ASSUMPTION AGREEMENT AND ACKNOWLEDGMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT AND ACKNOWLEDGMENT (the
"Assignment and Acknowledgment") is made and entered into this 31st day of
December, 1996, by and between North American Trust Company, a California
corporation ("NATC"), North American Fiduciary Services, Inc., a California
corporation ("NAFS"), and Xxxxxxxxx Holding Corporation, a Delaware corporation
("DHC").
RECITALS
A. WHEREAS, DHC and NATC previously entered into that certain Stock Sale
Agreement, dated as October 10, 1996 (the "Agreement"), pursuant to which, among
other things, DHC agreed to sell all of the issued and outstanding shares of
capital stock of Xxxxxxxxx Trust Company, a California corporation ("DTC") to
NATC. Undefined capitalized terms as used in this Assignment and Acknowledgment
shall have such meanings ascribed to them as found in the Agreement;
B. WHEREAS, the Agreement (at Section 4.6) permits NATC or one of its
affiliates to fund the Acquisition;
C. Whereas, NAFS is the immediate parent to, and Affiliate of, NATC;
D. WHEREAS, the Agreement (at Section 8.12) permits the transfer and
assignment of rights under the Agreement, subject to prior written consent of
DHC;
E. WHEREAS, NAFS desires to fund the acquisition and succeed to the rights
and obligations of NATC under the Agreement;
F. WHEREAS, immediately following the Closing, NATC contemplates merging
with and into DTC, with NATC being the surviving entity (the "Post-Closing
Merger");
G. WHEREAS, in light of the Post-Closing Merger, NATC has requested the
written consent of DHC to permit NAFS to succeed to, and assume all rights and
obligations of, NATC pursuant to the Agreement.
NOW, THEREFORE, based on the foregoing premises, and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. ASSIGNMENT AND ASSUMPTION.NATC hereby assigns to NAFS its rights and
obligations under the Agreement. NAFS hereby accepts such assignment of rights
and assumes such obligations.
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2. ASSUMPTION OF REPRESENTATIONS AND WARRANTIES. NAFS hereby represents and
warrants to DHC that it is the immediate parent to, and Affiliate of, NATC. NAFS
further represents and warrants to DHC that all of the representations and
warranties made by NATC to DHC, as the same are found in the Agreement at
Article IV, Sections 4.1 through 4.12, inclusive, are hereby adopted as the
representations and warranties of NAFS made to DHC, as of the Effective Date and
the Closing Date, mutatis mutandis.
3. ASSUMPTION OF COVENANTS AND INDEMNITIES. NAFS hereby covenants to DHC
that all of the covenants and indemnities made by NATC to DHC, as the same are
found in the Agreement at Article VI, Sections 6.1 through 6.11, inclusive, are
hereby adopted as the covenants of NAFS made to DHC, as of the Effective Date
and on the Closing Date, mutatis mutandis.
4. ASSIGNMENT OF RIGHTS. DHC hereby consents to the assignment of rights
and obligations under and pursuant to the Agreement by NATC in favor of NAFS,
with NATC remaining responsible to see that its obligations under the Agreement
are fulfilled.
5. XXXXXXX MONEY DEPOSIT. NATC hereby acknowledges that the Xxxxxxx Money
Deposit was and shall be deemed to have been made by NAFS in favor of DHC.
6. REAFFIRMATION. Except as such terms or provisions are affected hereby,
the Agreement shall remain in full force and effect in accordance with its
terms. The assignments and acknowledgments contained herein are one-time
assignments and acknowledgments only, are made with respect to the specific
sections of the Agreement as specified, and are not to be construed, nor shall
they constitute, a waiver, modification, forbearance or amendment of any other
section or sections of the Agreement. Except as otherwise provided herein, the
Agreement is in all respects ratified and affirmed, and nothing contained in
this Assignment and Acknowledgment shall, or shall be construed to, modify,
invalidate or otherwise affect any provision of the Agreement.
7. SEVERABILITY. In the event that any provision of this Assignment and
Acknowledgment, or the application of any such provision to any of the parties
hereto or any set of circumstances shall be determined to be invalid, unlawful,
void or unenforceable to any extent, the remainder of this Assignment and
Acknowledgment, and the application of such provision to parties or
circumstances other that those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be affected and shall continue to be
valid and enforceable to the fullest extent permitted by law.
8. COUNTERPARTS. This Assignment and Acknowledgment may be signed in any
number of counterparts, each of which shall be an original and all of which
taken together shall constitute a single agreement with the same effect as if
the signature thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement and Acknowledgment to be executed the day and the year first above
written:
NORTH AMERICAN TRUST COMPANY
/s/ Xxxx Xxxxxxxxx
By: Xxxx Xxxxxxxxx
Its: President
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NORTH AMERICAN FIDUCIARY SERVICES, INC.
/s/ Xxx Xxxxxxxxx
By: Xxx Xxxxxxxxx
Its:
XXXXXXXXX HOLDING CORPORATION
/s/ Xxxxx Xxxxx
By: Xxxxx Xxxxx
Its: President
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