Exhibit 10.10
CONFORMED COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of September 29, 1997 between XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK (the "Assignor") and CABLE MICHIGAN, INC. (the "Assignee").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Term Credit Agreement dated as of November 26, 1989 and amended and
restated as of August 16, 1995 among Mercom, Inc. (the "Borrower") and the
Assignor (as the same may have been further amended from time to time prior to
the date hereof, the "Credit Agreement") and the Pledge Agreement, the
Subsidiary Guaranty and the Security Agreement (each as defined in the Credit
Agreement);
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $14,150,725 are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of all of its Loans
outstanding thereunder (the "Assigned Amount"), and the Assignee proposes to
accept such assignment and assume the corresponding obligations of the Assignor
under the Credit Agreement;
WHEREAS, in connection with such assignment, the Assignor proposes also to
assign to the Assignee all of its rights under the Pledge Agreement, the
Subsidiary Guaranty and the Security Agreement (the "Security Documents",
together with the Credit Agreement, the "Loan Documents");
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
Section 2. Assignment. (a) The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement, and the
Assignee hereby accepts such assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement. The Assignor hereby
assigns and sells to the Assignee all of its rights under each of the Security
Documents. Upon the execution and delivery hereof by the Assignor and the
Assignee, the execution of the consent attached hereto by the Borrower and the
payment of the amounts specified in Section 3 required to be paid on the date
hereof (i) the Assignee shall, as of the date hereof, succeed to the rights and
be obligated to perform the obligations of the Assignor as the Bank under the
Loan Documents Agreement and (ii) and the Assignor shall be released from its
obligations under the Loan Documents to the extent such obligations have been
assumed by the Assignee; provided that the provisions of Section 8.04 of the
Credit Agreement shall continue to inure to the benefit of the Assignor. The
assignment provided for herein shall be without recourse to the Assignor.
(b) The Assignor is delivering herewith to the Assignee the certificates
evidencing the Pledged Securities (as defined in the Pledge Agreement (all of
which are described on Schedule 1 hereto)), including any related stock powers.
(c) The Assignor will, at the sole cost and expense of, as between the
Assignor and the Assignee, the Assignee (and the Borrower will, and will cause
each of its Subsidiaries to, at the Borrower's sole cost and expense), do,
execute, acknowledge and deliver all such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment and transfers as the Assignee
shall request, which may be necessary in the reasonable judgment of the
Assignee, to assure, perfect, convey, assign and transfer to the Assignee the
property and rights conveyed or assigned pursuant to the Security Documents, or
which may facilitate the performance of the terms of the Security Documents, or
the filing, registering or recording of the Security Documents.
(d) All costs and expenses in connection with the transfer of any security
interests under the Security Documents, including without limitation reasonable
legal fees and other reasonable costs and expenses in connection with the
granting, perfecting and maintenance of any security interests under the
Security Documents or the preparation, execution, delivery, recordation or
filing of documents and any other acts as the Assignee may reasonably request in
connection with the grant of such security interests shall be, as between the
Assignor and the Assignee, be the sole responsibility of the Assignee and, as
between the Assignee and the Borrower, be the sole responsibility of and paid by
the Borrower promptly upon demand.
Section 3. Release. Xxxxxx hereby acknowledges that all amounts payable
under the Loans made by it pursuant to the Revolving Credit Agreement dated as
of November 26, 1989 and amended and restated as of August 16, 1995 (as the same
may have been further amended from time to time prior to the date hereof)
between the Borrower and Xxxxxx have been paid in full and hereby agrees that
references to the "Credit Agreements" in any of the Security
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Documents shall refer solely to the Credit Agreement (as such term is defined
herein), as the same may hereafter be amended from time to time.
Section 4. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds $14,196,860.24, representing the principal amount
of the Loans outstanding on the date hereof and interest accrued thereon to the
date hereof.
Section 5. Non-Reliance on Assignor; Indemnity. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition or statements of the Borrower
or any other Person party to a Security Document, the validity and
enforceability of the Borrower's or any such other Person's obligations under
the Credit Agreement, any Note or any Security Document or the validity,
priority or perfection of any Lien created by the Security Documents or the
value of any property purported to be subject to any such Lien. The Assignee
acknowledges that, as the owner of 62% of the outstanding shares of common stock
of the Borrower, it has adequate information concerning the foregoing matters
and access thereto superior to that of the Assignee and that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower.
Section 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ R. Xxxxx Xxxxxxxxxxxx
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Title: Vice President
CABLE MICHIGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President, Treasurer
The undersigned consents to the foregoing assignment.
MERCOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Vice President, Treasurer
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COMMUNICATIONS AND CABLEVISION, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Vice President, Treasurer
ALLEGAN COUNTY CABLEVISION,
INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Vice President, Treasurer
COLDWATER CABLEVISION, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Vice President, Treasurer
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