ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, between Roundtable Partners, L.L.C., a Delaware
limited liability company (the "Borrower"), and Knight/Trimark Group, Inc.,
a Delaware corporation (the "Guarantor").
Pursuant to Section 5.1 (b) and Section 5.2 (a) of the Loan Agreement,
dated as of June 19, 1998 (the "Loan Agreement"), between PaineWebber
Capital Inc., a Delaware corporation (the "Lender"), and the Borrower, the
Borrower may liquidate or dissolve (the "Liquidation"), so long as the
Guarantor has agreed to assume all of the Borrower's obligations under the
Loan Agreement and the Note (as defined in the Loan Agreement) and all of
the assets of the Borrower are distributed to the Guarantor. The terms
defined in the Loan Agreement are used herein as therein defined.
In order to consummate the Liquidation, the Borrower and the Guarantor
hereby agree as follows:
1. The Borrower hereby transfers and assigns to the Guarantor (and
its successors and assigns) all of its obligations under the Loan
Agreement and the Note and the Guarantor hereby accepts such
assignment and assumes all of the obligations of the Borrower under
the Loan Agreement and the Note.
2. The Borrower represents and warrants that:
a) it has all requisite power and authority, corporate or
otherwise, and all material governmental authorizations to
execute and deliver, and to perform its obligations under, this
Assumption Agreement;
b) the execution, delivery and performance by the Borrower of
this Assumption Agreement has been duly authorized by all
necessary corporate action on the part of the Borrower, and does
not and will not (i) require any consent or approval of the
members of the Borrower, (ii) violate any provision of any law
(including, without limitation, the Securities Act), rule,
regulation (including, without limitation, Regulations T, U and
X), order, writ, judgment, injunction, decree, determination or
award applicable to the Borrower, (iii) violate the certificate
of formation or operating agreement of the Borrower, (iv) result
in the breach of, or constitute a default or an event which,
with notice or lapse of time or both, would constitute a
default under, any indenture, loan or credit agreement or any
agreement, lease or instrument to which the Borrower or any
of its Significant Subsidiaries is a party or by which it or
any of its properties or the properties of any of its
Significant Subsidiaries may be bound or affected or (v)
result in or require the creation or imposition of any Lien,
upon or with respect to any of the properties of the Borrower
or any of its Significant Subsidiaries, except in the cases
of clauses (ii), (iv) and (v), where such violation, breach,
default or Lien could not reasonably be expected to have a
Material Adverse Effect; and
c) that this Assumption Agreement has been duly executed and
delivered by the Borrower and will be a legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally (whether considered
in a proceeding in equity or at law).
3. The Guarantor represents and warrants that:
a) it has all requisite power and authority, corporate or
otherwise, and all material governmental authorizations to
execute and deliver, and to perform its obligations under,
this Assumption Agreement;
b) the execution, delivery and performance by the Guarantor of
this Assumption Agreement has been duly authorized by all
necessary corporate action on the part of the Guarantor, and
does not and will not (i) require any consent or approval of
the stockholders of the Guarantor, (ii) violate any provision
of any law (including, without limitation, the Securities
Act), rule, regulation (including, without limitation,
Regulations T, U and X), order, writ, judgment , injunction,
decree, determination or award applicable to the Guarantor,
(iii) violate the certificate of incorporation or by-laws of
the Guarantor, (iv) result in the breach of, or constitute a
default or an event which, with notice or lapse of time or
both, would constitute a default under, any indenture, loan
or credit agreement or any agreement, lease or instrument to
which the Guarantor or any of its Significant Subsidiaries is
a party or by which it or any of its properties or the
properties of any of its Significant Subsidiaries may be
bound or affected or (v) result in or require the creation or
imposition of any Lien, upon or with respect to any of the
properties of the Guarantor or any of its Significant
Subsidiaries, except in the cases of clauses (ii), (iv) and
(v), where such violation, breach, default or Lien could not
reasonably be expected to have a Material Adverse Effect; and
c) that this Assumption Agreement has been duly executed and
delivered by the Guarantor and will be a legal, valid and
binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally (whether considered
in a proceeding in equity or at law).
4. The covenants and agreements set forth herein shall be binding
upon, and shall inure to the benefit of, the respective
successors and assigns of the Borrower and the Guarantor.
5. The Lender shall be a third-party beneficiary to this Assumption
Agreement and shall be entitled to enforce the provisions
hereof.
6. This Assumption Agreement may not be modified, changed or
supplemented, nor may any obligations hereunder be deemed
waived, except (i) by written instrument signed by the party to
be charged and (ii) with the written consent of the Lender.
7. This Assumption Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without
regard to conflict of laws principles.
8. (A) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN
NEW YORK, NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS ASSUMPTION AGREEMENT, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE COURT OR
TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH
OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
(B) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSUMPTION
AGREEMENT IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
9. EACH OF THE BORROWER AND THE GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS ASSUMPTION AGREEMENT OR THE
ACTIONS OF EACH PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
IN WITNESS WHEREOF, each of the parties has caused this
Assumption Agreement to be duly executed and delivered as of July 31, 1998.
ROUNTABLE PARTNERS, L.L.C.
By: /s/ Xxxxxxx Xxxxxxxxx
_______________________
Xxxxxxx Xxxxxxxxx
President
KNIGHT/TRIMARK GROUP, INC.
By: /s/ Xxxxxx Xxxxxx
_______________________
Xxxxxx Xxxxxx
Executive Vice President
