ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT 10(26)
Reference is made to the Amended and Restated Revolving and Term Loan Credit Agreement dated as of November 1, 200l (as amended, modified, supplemented, or restated to the Effective Date, the “Credit
Agreement”) among AZZ incorporated (“Borrower”), Bank of America, N.A., as Administrative Agent for Lenders (“Administrative Agent”), and Agents and
Lenders party thereto. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
“Assignor” and “Assignee” referred to on Schedule 1
agree as follows:
1. Assignor hereby sells and assigns to Assignee, without recourse
and without representation or warranty except as expressly set forth herein, and Assignee hereby purchases and assumes from Assignor, an interest in and to Assignor’s Rights and obligations under the Credit Agreement and the related Loan
Documents as of the Effective Date equal to the percentage interest specified on Schedule 1 (the “Assigned Facility”). After giving effect to such sale and assignment, Assignee’s Committed Sum under such
Assigned Facility and the amount of the Principal Debt owed to Assignee under such Assigned Facility will be as set forth on Schedule 1.
2. Assignor (a) represents and warrants that 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 adverse claim; (b) 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 Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency, or value of the Loan Documents or any other instrument or document furnished pursuant thereto; (c) makes no representation or warranty and assumes no responsibility with respect to the
financial condition of any party to any Loan Document or the performance or observance by any such party of any of its obligations under the Loan Documents or any other instrument or document furnished pursuant thereto; and (d) attaches the Notes
held by Assignor (to the extent any of the Principal Debt being assigned and owed to Assignor is evidenced by Notes) and requests that Administrative Agent exchange such Notes for new Notes if so requested by either Assignor or Assignee. Any such
new Notes shall be prepared in accordance with the provisions of Section 3.1(b) of the Credit Agreement and will reflect the respective Committed Sums or Principal Debt of Assignee and Assignor after giving effect to this Assignment
and Acceptance Agreement.
3. Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance Agreement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the Current Financials and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance Agreement; (c) agrees that it will, independently and without reliance upon Administrative Agent, Assignor, 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 decisions in taking or not taking action under the Credit Agreement; (d) confirms that it is an Eligible Assignee; (e) appoints and authorizes
Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (f) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender; and (g)
attaches any U.S. Internal Revenue Service or other forms required under Section 46(d) of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance Agreement by Assignor, Assignee, and Borrower (to the extent required hereunder), it will be delivered to Administrative Agent
for acceptance and recording by Administrative Agent pursuant to the Credit Agreement. The effective date for this Assignment and Acceptance Agreement shall be the date set forth on Schedule I hereof (the
“‘Effective
Date”), which shall not, unless otherwise agreed to by
Administrative Agent in its sole discretion, be earlier than five Business Days from the date of such acceptance and recording by Administrative Agent.
5. Upon such acceptance and recording by Administrative Agent, as of the Effective Date, (a) Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance Agreement, have the Rights and obligations of a Lender thereunder, and (b) Assignor shall, to the extent provided in this Assignment and Acceptance Agreement, relinquish its Rights and be
released from its obligations under the Agreement.
6. Upon such acceptance and
recording by Administrative Agent, from and after the Effective Date, Administrative Agent shall make all payments under the Credit Agreement, the Notes (to the extent any of the Principal Debt owed to Assignee is evidenced by Notes), and loan
accounts in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest, and commitment fees and other fees with respect thereto) to Assignee. Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the other Loan Documents for periods prior to the Effective Date directly between themselves.
7. Unless Assignee is a Lender, an Affiliate of Assignor, or an Approved Fund, this Assignment and Acceptance Agreement is conditioned upon the
consent of Administrative Agent and, unless a Default or Potential Default then exists, Borrower, pursuant to the definition of “Eligible Assignee” in the Credit Agreement. The execution and delivery of this Assignment and
Acceptance Agreement by Borrower and Administrative Agent is evidence of this consent.
8. Administrative Agent has waived payment of the processing fee required by Section 13.13(b)(iv) of the Credit Agreement. This waiver shall apply only to the assignment contemplated by this Assignment and
Acceptance Agreement and shall not constitute a waiver or release by Administrative Agent of any other obligation or right arising now or hereafter under the Credit Agreement.
9. THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF TEXAS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
10. This
Assignment and Acceptance Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of Schedule I to this Assignment and Acceptance Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have caused Schedule I to this
Assignment and Acceptance Agreement to be executed by their officers thereunto duly authorized as of the date specified thereon.
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SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
| Assigned Facility |
Committed Sum or Principal Debt Assigned (as applicable) |
Commitment Percentage (i.e.
the proportion that Assignee’s Committed Sum to be acquired bears to the aggregate Committed Sum of all Lenders) or Percentage of Principal Debt assigned (i.e. the proportion that the Principal Debt to be acquired by Assignee bears to the
aggregate Principal Debt under the respective Facility)(set forth to at least 8 decimal points) | ||
| Revolver Facility |
$5,555,555.56 |
12.34567902% | ||
| Term Facility |
$4,444,444.44 |
12.34567901% |
EFFECTIVE DATE OF ASSIGNMENT: August
29, 2002
| XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION, as
Assignor | ||
| By: |
/s/ XXXXX
XXXXXXXX | |
| Xxxxx Xxxxxxxx Vice
President | ||
Date: August 27, 2002
| Address for Notice: 000 Xxxx Xxxxxx, Xxxxx 000 Xx. Xxxxx, Xxxxx 00000 Attn: Xxxxx Xxxxxxxx Telephone: (000) 000-0000 Telecopier: (000) 000-0000 |
| WASHINGTON MUTUAL BANK, FA, as Assignee | ||
| By: |
/s/ XXXXX XXXXX
| |
| Xxxxx Xxxxx Vice
President | ||
Date: August 27, 2002
| Address for Notice: 000 X. 0xx Xxxxxx, Xxxxx 000 Xx. Xxxxx, Xxxxx 00000 Attn: Xxxxx Xxxxx Telephone: (0 00) 000-0000 Telecopier: (8 17) 348-8 177 |
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If Section 13.13(b) and clause (d) of the definition
of “Eligible Assignee” of the Credit Agreement so require, Borrower and Administrative Agent consent to this Assignment and Acceptance Agreement.
| AZZ INCORPORATED | ||
| By: |
/s/ XXXX XXXXX
| |
| Xxxx Xxxxx Asst
Secretary | ||
Date: August 29, 2002
| BANK OF AMERICA, N.A., as Administrative Agent | ||
| By: |
/s/ XXXXXXX X.
XXXX | |
| Xxxxxxx X. Xxxx Vice
President | ||
Dated: August 26, 2002
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TERM NOTE
| $4,444,444.44 |
August 29, 2002 |
FOR VALUE RECEIVED, the undersigned, AZZ INCORPORATED, a
Texas corporation (“Borrower”), hereby promises to pay to the order of WASHINGTON MUTUAL BANK, FA (“Lender”), at the offices
of BANK OF AMERICA, N.A., as Administrative Agent under the Credit Agreement (as hereinafter described), the principal sum of Four Million Four Hundred Forty-Four Thousand Four Hundred Forty-Four and 44/100 Dollars ($4,444,444.44), which
principal shall be payable on the dates and in the amounts provided for in Section 3.2(c) of the Credit Agreement (together with accrued and unpaid interest thereon) at such interest rates, on such
dates and in such amounts as are specified in the Credit Agreement.
This note has been executed and delivered
under, and is subject to the terms of, the Amended and Restated Revolving and Term Loan Credit Agreement, dated as of November 1, 2001 (as further amended, modified, supplemented, or restated from time to time, the “Credit
Agreement”), among Borrower, Administrative Agent, Lender, and other Agents and Lenders party thereto, and is one of the “Term Notes” referred to therein. Unless defined herein,
capitalized terms used herein that are defined in the Credit Agreement have the meaning given to such terms in the Credit Agreement. Reference is made to the Credit Agreement for provisions affecting this note regarding applicable interest rates,
principal and interest payment dates, final maturity, voluntary and mandatory prepayments, acceleration of maturity, exercise of Rights, payment of attorneys’ fees, court costs and other costs of collection, certain waivers by Borrower and
others now or hereafter obligated first payment of any sums due hereunder and security for the payment hereof. Without limiting the immediately preceding sentence, reference is made to Section 3.9 of the Credit Agreement
for usury savings provisions.
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE OF TEXAS AND
OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION ENFORCEMENT, AND INTERPRETATION HEREOF.
| AZZ INCORPORATED | ||
| By: |
/s/ XXXX X.
XXXXX | |
| Xxxx X. Xxxxx, | ||
| Assistant Secretary | ||
5
REVOLVER NOTE
| S5,555,555.56 |
August 29,2002 |
FOR VALUE RECEIVED, the undersigned, AZZ INCORPORATED, a
Texas corporation (“Borrower”), hereby promises to pay to the order of WASHINGTON MUTUAL BANK, FA (“Lender”), at the offices of BANK OF AMERICA, N.A., as
Administrative Agent under the Credit Agreement (as hereinafter described), on the Termination Date, the lesser of (a) Five Million Five Hundred Fifty-Five Thousand Five Hundred Fifty-Five and 56/100 Dollars ($5,555,555.56) and (b) the
aggregate Revolver Principal Debt disbursed by Lender to Borrower and outstanding and unpaid on the Termination Date (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is subject to the terms of, the Amended and Restated Revolving and Term Loan Credit Agreement, dated as of November 1,
2001 (as further amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), among Borrower, Administrative Agent, Lender, and other Agents and Lenders party thereto, and is one of the
“Revolver Notes” referred to therein. Unless defined herein, capitalized terms used herein that are defined in the Credit Agreement have the meaning given to such terms in the Credit Agreement. Reference is made to the
Credit Agreement for provisions affecting this note regarding applicable interest rates, principal and interest payment dates, final maturity, voluntary and mandatory prepayments, acceleration of maturity, exercise of Rights, payment of
attorneys’ fees, court costs, and other costs of collection, certain waivers by Borrower and others now or hereafter obligated for payment of any sums due hereunder and security for the payment hereof. Without limiting the immediately preceding
sentence, reference is made to Section 3.9 of the Credit Agreement for usury savings provisions.
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION HEREOF.
| AZZ INCORPORATED | ||
| By: |
/s/ XXXX X. XXXXX
| |
| Xxxx X. Xxxxx, | ||
| Assistant Secretary | ||
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TERM NOTE
| $4,026,144.06 |
August 29, 2002 |
FOR VALUE RECEIVED, the undersigned, AZZ INCORPORATED, a
Texas corporation (“Borrower”), hereby promises to pay to the order of XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION (“Lender”), at the offices of BANK OF AMERICA,
N.A., as Administrative Agent under the Credit Agreement (as hereinafter described), the principal sum of Four Million Twenty-Six Thousand One Hundred Forty-Four and 06/l00 Dollars ($4,026,144.06), which principal shall be payable on the dates
and in the amounts provided for in Section 3.2(c) of the Credit Agreement (together with accrued and unpaid interest thereon) at such interest rates, on such dates and in such amounts as are specified in the Credit
Agreement.
This note has been executed and delivered under, and is subject to the terms of, the Amended and
Restated Revolving and Term Loan Credit Agreement, dated as of November 1, 2001 (as further amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), among Borrower, Administrative
Agent, Lender, and other Agents and Lenders party thereto, and is one of the “Term Notes” referred to therein. Unless defined herein, capitalized terms used herein that are defined in the Credit Agreement have the meaning given to
such terms in the Credit Agreement. Reference is made to the Credit Agreement for provisions affecting this note regarding applicable interest rates, principal and interest payment dates, final maturity, voluntary and mandatory prepayments,
acceleration of maturity, exercise of Rights, payment of attorneys’ fees, court costs and other costs of collection, certain waivers by Borrower and others now or hereafter obligated for payment of any sums due hereunder and security for the
payment hereof. Without limiting the immediately preceding sentence, reference is made to Section 3.9 of the Credit Agreement for usury savings provisions.
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF BORROWER AND THE
LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION HEREOF.
This Note is in substitution and
replacement of that certain Note dated November 1, 2001, executed by Borrower and payable to the order of Lender in the original principal amount of $9,411,765.00.
| AZZ INCORPORATED | ||
| By: |
/s/ XXXX X.
XXXXX | |
| Xxxx X. Xxxxx, Assistant
Secretary | ||
7
REVOLVER NOTE
| $5,032,679.44 |
August 29, 2002 |
FOR VALUE RECEIVED, the undersigned, AZZ INCORPORATED, a
Texas corporation (“Borrower”), hereby promises to pay to the order of XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION (“Lender”), at the offices of BANK OF AMERICA,
N.A., as Administrative Agent under the Credit Agreement (as hereinafter described), on the Termination Date, the lesser of (a) Five Million Thirty-Two Thousand Six Hundred Seventy-Nine and 44/100 Dollars ($5,032,679.44) and (b) the aggregate
Revolver Principal Debt disbursed by Lender to Borrower and outstanding and unpaid on the Termination Date (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is subject to the terms of, the Amended and Restated Revolving and Term Loan Credit Agreement, dated as of November 1,
2001 (as further amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), among Borrower, Administrative Agent, Lender, and other Agents and Lenders party thereto, and is one of
the “Revolver Notes” referred to therein. Unless defined herein, capitalized terms used herein that are defined in the Credit Agreement have the meaning given to such terms in the Credit Agreement. Reference is
made to the Credit Agreement for provisions affecting this note regarding applicable interest rates, principal and interest payment dates, final maturity, voluntary and mandatory prepayments, acceleration of maturity, exercise of Rights, payment of
attorneys’ fees, court costs, and other costs of collection, certain waivers by Borrower and others now or hereafter obligated for payment of any sums due hereunder and security for the payment hereof. Without limiting the immediately preceding
sentence, reference is made to Section 3.9 of the Credit Agreement for usury savings provisions.
THE LAWS (OTHER THAN CONFLICT-OF-LAWS PROVISIONS THEREOF) OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF BORROWER AND THE LENDER AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND
INTERPRETATION HEREOF.
This Note is in substitution and replacement of that certain Note dated November 1, 2001,
executed by Borrower and payable to the order of Lender in the original principal amount of $10,588,235.00.
| AZZ INCORPORATED | ||
| By: |
/s/ XXXX X.
XXXXX | |
| Xxxx X. Xxxxx, Assistant
Secretary | ||
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