Exhibit 2.3
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this
"Assignment and Acceptance") dated as of July 12, 2001 is made between
Xxxxxxxxxx Securities, LLC (the "Assignor") and The Reliable Life Insurance
Company (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Loan
Agreement dated as of July 12, 2001 (as amended, amended and restated,
modified, supplemented or renewed, the "Loan Agreement") among UNOVA, Inc.,
a Delaware corporation ("Parent"), each of Parent's Subsidiaries identified
on the signature pages thereof (such Subsidiaries, together with Parent,
each a "Borrower" and collectively, jointly and severally, the
"Borrowers"), the lenders party thereto (including the Assignor, the
"Lenders"), and Special Value Investment Management, LLC, as agent for the
Lenders (the "Agent"). Any terms defined in the Loan Agreement and not
defined in this Assignment and Acceptance are used herein as defined in the
Loan Agreement;
WHEREAS, as provided under the Loan Agreement, the
Assignor has made a term loan (the "Loan") to the Borrowers; and
WHEREAS, the Assignor wishes to assign to the Assignee
part of the rights and obligations of the Assignor under the Loan Agreement
in respect of the Loan in an amount equal to $1,500,000 (the "Assigned
Amount") on the terms and subject to the conditions set forth herein and
the Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this
Assignment and Acceptance, (i) the Assignor hereby sells, transfers and
assigns to the Assignee, and (ii) the Assignee hereby purchases, assumes
and undertakes from the Assignor, without recourse and without
representation or warranty (except as provided in this Assignment and
Acceptance) 2.38% of (A) the Loan of the Assignor and (B) all related
rights, benefits, obligations, liabilities and indemnities of the Assignor
under and in connection with the Loan Agreement and the Loan Documents.
(b) With effect on and after the Effective Date (as
defined in Section 5 hereof), the Assignee shall be a party to the Loan
Agreement and succeed to all of the rights and be obligated to perform all
of the obligations of a Lender under the Loan Agreement, including the
requirements concerning confidentiality and the payment of indemnification.
The Assignee agrees that it will perform in accordance with the applicable
terms all of the obligations which by the terms of the Loan Agreement are
required to be performed by it as a Lender. It is the intent of the parties
hereto that the outstanding Loan of the Assignor shall, as of the Effective
Date, be reduced by an amount equal to the Assigned Amount and the Assignor
shall relinquish its rights and be released from its obligations under the
Loan Agreement to the extent such obligations have been assumed by the
Assignee.
(c) After giving effect to the assignment and assumption
set forth herein, on the Effective Date the Assignee's portion of the Loan
will be equal to the Assigned Amount.
(d) As of the Effective Date, after giving effect to the
assignment and assumption set forth herein and all other assignments and
assumptions relative to the Loan effective as of such date, the Assignor's
portion of the Loan will be $31,500,000.
2. Payments. As consideration for the sale, assignment and
transfer contemplated in Section 1 hereof, the Assignee shall pay to the
Assignor on the Effective Date in immediately available funds an amount
equal to $1,500,000.
3. Reallocation of Payments. Any interest, fees and other payments
accrued to the Effective Date with respect to the Loan shall be for the
account of the Assignor. Any interest, fees and other payments accrued on
and after the Effective Date with respect to the Assigned Amount shall be
for the account of the Assignee. Each of the Assignor and the Assignee
agrees that it will hold in trust for the other party any interest, fees
and other amounts which it may receive to which the other party is entitled
pursuant to the preceding sentence and pay to the other party any such
amounts which it may receive promptly upon receipt.
4. Independent Credit Decision. The Assignee (a) acknowledges that
it has received a copy of the Loan Agreement and the Schedules and Exhibits
thereto, together with copies of the most recent financial statements of
the Borrowers, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter
into this Assignment and Acceptance, and (b) agrees that it will,
independently and without reliance upon the Assignor, the Agent 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 and legal
decisions in taking or not taking action under the Loan Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the
effective date for this Assignment and Acceptance shall be July 12, 2001
(the "Effective Date"); provided that the following conditions precedent
have been satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Agent required for an effective
assignment of the Assigned Amount by the Assignor to the Assignee
shall have been duly obtained and shall be in full force and
effect as of the Effective Date; and
(iii) the Assignee shall pay to the Assignor all amounts
due to the Assignor under this Assignment and Acceptance.
(b) Promptly following the execution of this Assignment
and Acceptance, the Assignor shall deliver to the Parent and the Agent for
acknowledgment by the Agent, a Notice of Assignment in the form attached
hereto as Schedule 1.
6. Withholding Tax. The Assignee (a) represents and warrants to
the Assignor, the Agent and the Borrowers that under applicable law and
treaties no tax will be required to be withheld by the Borrowers with
respect to any payments to be made to the Assignee hereunder, (b) agrees to
furnish (if it is organized under the laws of any jurisdiction other than
the United States or any State thereof) to the Agent and the Borrowers
prior to the time that the Agent or the Borrowers are required to make any
payment of principal, interest or fees hereunder, duplicate executed
originals of either U.S. Internal Revenue Service Form W-8ECI or U.S.
Internal Revenue Service Form W-8BEN (wherein the Assignee claims
entitlement to the benefits of a tax treaty that provides for a complete
exemption from U.S. federal income withholding tax on all payments
hereunder) and agrees to provide new Forms W-8ECI or W-8BEN upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the Assignee, and (c) agrees to comply with
all applicable U.S. laws and regulations with regard to such withholding
tax exemption.
7. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is
the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any Lien or other
adverse claim, (ii) it is duly organized and existing and it has the full
power and authority to take, and has taken, all action necessary to execute
and deliver this Assignment and Acceptance and any other documents required
or permitted to be executed or delivered by it in connection with this
Assignment and Acceptance and to fulfill its obligations hereunder, (iii)
no notices to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due execution,
delivery and performance of this Assignment and Acceptance, and apart from
any agreements or undertakings or filings required by the Loan Agreement,
no further action by, or notice to, or filing with, any Person is required
of it for such execution, delivery or performance, and (iv) this Assignment
and Acceptance has been duly executed and delivered by it and constitutes
the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors'
rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation or warranty in
connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of the Borrowers, or the
performance or observance by the Borrowers, of any of their respective
obligations under the Loan Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is
duly organized and existing and it has full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment
and Acceptance and any other documents required or permitted to be executed
or delivered by it in connection with this Assignment and Acceptance, and
to fulfill its obligations hereunder, (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any
already given or obtained) for its due execution, delivery and performance
of this Assignment and Acceptance, and apart from any agreements or
undertakings or filings required by the Loan Agreement, no further action
by, or notice to, or filing with, any Person is required of it for such
execution, delivery or performance, and (iii) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of the Assignee, enforceable against
the Assignee in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors'
rights and to general equitable principles.
8. Further Assurances. The Assignor and the Assignee each hereby
agree to execute and deliver such other instruments, and take such other
action, as either party may reasonably request in connection with the
transactions contemplated by this Assignment and Acceptance, including the
delivery of any notices or other documents or instruments to the Borrowers
or the Agent, which may be required in connection with the assignment and
assumption contemplated hereby.
9. Miscellaneous.
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties
hereto. No failure or delay by either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof and any
waiver of any breach of the provisions of this Assignment and Acceptance
shall be without prejudice to any rights with respect to any other or
further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own
costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. The
Assignor and the Assignee each irrevocably submits to the non-exclusive
jurisdiction of any State or Federal court sitting in the County of New
York, State of New York over any suit, action or proceeding arising out of
or relating to this Assignment and Acceptance and irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined in such New York State or Federal court. Each party to this
Assignment and Acceptance hereby irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE LOAN AGREEMENT,
ANY RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, OR STATEMENTS (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused this Assignment and Acceptance to be executed and delivered by their
duly authorized officers as of the date first above written.
THE RELIABLE LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
Title: Asst. Treasurer
XXXXXXXXXX SECURITIES, LLC
By: /s/ Xxxx Xxxxxxxxxx
Title: President
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
NOTICE OF ASSIGNMENT AND ACCEPTANCE
July 12, 2001
Special Value Investment Management, LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx
Re: UNOVA, INC. and its Subsidiaries
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We refer to the Loan Agreement dated as of July 12, 2001
(as amended, amended and restated, modified, supplemented or renewed from
time to time the "Loan Agreement") among UNOVA, Inc., a Delaware
corporation ("Parent"), each of Parent's Subsidiaries identified on the
signature pages thereof (such Subsidiaries, together with Parent, each a
"Borrower" and collectively, the "Borrowers"), the Lenders referred to
therein and Special Value Investment Management, LLC, as agent for the
Lenders (the "Agent"). Terms defined in the Loan Agreement are used herein
as therein defined.
1. We hereby give you notice of the assignment by
Xxxxxxxxxx Securities, LLC (the "Assignor") to The Reliable Life Insurance
Company (the "Assignee") of 2.38% of the right, title and interest of the
Assignor in and to the Loan Agreement (including the right, title and
interest of the Assignor in and to the Term Loan of the Assignor (the
"Assignment and Acceptance"). We understand and agree that the Assignor's
portion of the Term Loan after giving effect to the assignment is
$31,500,000.
2. The Assignee agrees that, upon receiving the consent
of the Agent to such assignment, the Assignee will be bound by the terms of
the Loan Agreement as fully and to the same extent as if the Assignee were
the Lender originally holding such interest in the Loan Agreement.
3. The following administrative details apply to the
Assignee:
(A) Notice Address:
Assignee name: The Reliable Life Insur. Co.
Address: c/o Unitrin, Inc.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Investment Accounting
(B) Payment Instructions:
Account No.:276074
At: Bank of New York/Cust
ABA No.: 000000000
Reference: The Reliable Life Insur. Co.
4. You are entitled to rely upon the representations,
warranties and covenants of each of the Assignor and Assignee contained in
the Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused this Notice of Assignment and Acceptance to be executed by their
respective duly authorized officials, officers or agents as of the date
first above mentioned.
Very truly yours,
XXXXXXXXXX SECURITIES, LLC
By: /s/ Xxxx Xxxxxxxxxx
Title: President
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
Special Value Investment Management, LLC
as Agent
By: /s/ Xxxx Xxxxxxxxxx
Title: Member
