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EXHIBIT 10.12
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("ASSIGNMENT"), effective as of
February 27, 1997 (the "EFFECTIVE DATE") is between Triad Systems Corporation,
a Delaware corporation ("ASSIGNOR"), and Triad Park, LLC, a Delaware limited
liability company ("ASSIGNEE").
RECITALS
A. 0000 Xxxxx Xx. Corp., a California corporation and a wholly-owned
subsidiary of Assignor ("3055"), is a party to the Note and First Deed of Trust
(as defined below).
B. Immediately prior to the effectiveness of this Agreement, 3055 has
merged with and into Assignor, with Assignor as the surviving corporation (the
"MERGER"). By virtue of the Merger, Assignor has assumed all rights and
obligations of 3055, including, without limitation, those under the Note and
the First Deed of Trust.
C. Assignor now desires to assign to Assignee all of its rights and
obligations arising from the Note and the First Deed of Trust, and Assignee
desires to accept the assignment and to assume all future liabilities under the
Note and First Deed of Trust for the benefit of The Variable Annuity Life
Insurance Company, a Texas corporation.
AGREEMENTS
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
Assignor and Assignee agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, "NOTE" means the Promissory Note, dated
August 23, 1988, in the original principal sum of $15,500,000, executed by 3055
as Maker in favor of the Variable Annuity Life Insurance Company, a Texas
corporation ("VARIABLE").
(b) As used in this Agreement, "FIRST DEED OF TRUST" means the First Deed
of Trust and Assignment of Rents, Security Agreement and Fixture Filing, dated
as of August 23, 1988, by and among 3055, as Trustor, Xxxxx-XxXxxxxx Financial
Corporation, as Trustee, and Variable, as Beneficiary, recorded as Series No.
88-215552, in Alameda County, State of California
2. ASSIGNMENT. Assignor assigns to Assignee all of its rights and
obligations under the Note and the First Deed of Trust.
3. ASSUMPTION. Assignee assumes and agrees to perform all obligations of
Assignor to be performed under the Note and the First Deed of Trust after the
Effective
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Date. This assumption is not intended to amend the provision of the Note
defining the circumstances when the Maker does or does not have recourse
liability.
4. INDEMNITY. Assignee shall indemnify, defend and hold Assignor harmless
from and against all claims, losses, damages, costs, expenses and liabilities
(including reasonable attorneys' fees) arising out of or relating to the
performance of the Note and the First Deed of Trust after the Effective Date.
5. ATTORNEYS' FEES. If any legal action or other proceeding is commenced
to enforce or interpret any provision of, or otherwise relating to, this
Agreement, the losing party shall pay the prevailing party's actual expenses
incurred in the investigation of any claim leading to the proceeding,
preparation for and participation in the proceeding, any appeal or other post
judgment motion, and any action to enforce or collect the judgment including
contempt, garnishment, levy, discovery and bankruptcy. For this purpose
"EXPENSES" include, without limitation, court or other proceeding costs and
experts' and attorneys' fees and their expenses. The phrase "prevailing party"
shall mean the party who is determined in the proceeding to have prevailed or
who prevails by dismissal, default or otherwise.
6. CHOICE OF LAW AND FORUM. This Agreement shall be construed in
accordance with, and governed by, the internal laws of the State of California.
Any action to enforce or interpret its provisions must be brought in State or
Federal Courts located in San Francisco, California.
7. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and counterpart signature pages may
be assembled to form a single original document.
8. NOTICES. All notices, consents, requests, demands or other
communications to or upon the respective parties shall be in writing and shall
be effective for all purposes upon receipt on any business day before 5:00 PM
local time and on the next business day if received after 5:00 PM or on other
than a business day, including without limitation, in the case of (i) personal
delivery, (ii) delivery by messenger, express or air courier or similar
courier, (iii) delivery by United States first class certified or registered
mail, postage prepaid and (iv) transmittal by telecopier or facsimile,
addressed as follows:
If to Assignor, to:
Triad Systems Corporation
0000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Assignee, to:
Triad Park, LLC
0000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
McCutchen, Doyle, Xxxxx & Enersen, LLP
Three Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
In this section "BUSINESS DAYS" means days other than Saturdays, Sundays, and
federal and state legal holidays. Either party may change its address by
written notice to the other in the manner set forth above. Receipt of
communications by United States first class or registered mail will be
sufficiently evidenced by return receipt. Receipt of communications by
facsimile will be sufficiently evidenced by a machine generated confirmation of
transmission without an error message. In the case of illegible or otherwise
unreadable facsimile transmissions, the receiving party shall promptly notify
the transmitting party of any transmission problem and the transmitting party
shall promptly resend any affected pages.
9. SUCCESSORS AND ASSIGNS: ASSIGNABILITY. No rights of any party under
this Agreement are assignable without the written consent of all other parties,
which any other party may withhold in its absolute discretion.
10. THIRD PARTIES. This Agreement is for the express benefit of The
Variable Annuity Life Insurance Company, a Texas corporation ("BENEFICIARY")
whose address is c/o American General Realty Advisors, Inc., Attention:
Director, Mortgage Loans-Asset Management, Xxx 0000, Xxxxxxx, Xxxxx 00000.
Nothing in this Agreement shall be construed to give any person other than the
express parties to this Agreement and Beneficiary any benefits, rights or
remedies.
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11. WAIVER/MODIFICATION/AMENDMENT. No amendment of, or waiver of any
obligation under, this Agreement will be enforceable unless set forth in a
writing signed by the party against which enforcement is sought.
The parties have executed this Assignment and Assumption Agreement as of
the Effective Date.
"ASSIGNOR"
TRIAD SYSTEMS CORPORATION
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: President
"ASSIGNEE"
TRIAD PARK, LLC
By 3055 MANAGEMENT CORP., ITS SOLE
MANAGER
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title:
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