Exhibit 10.08
-------------
ASSIGNMENT AND ACCEPTANCE
Dated _______________, 19___
Reference is made to that certain Amended and Restated Credit
Agreement dated as of November __, 1996 (the "Credit Agreement") among
Xxxxxxxxxx Realty Investors, a Texas real estate investment trust, (the
"Company"), the Banks (as defined in the Credit Agree-ment), Texas Commerce
Bank National Association, a national banking association ("TCB"), as Agent
for the Banks (the "Agent"), NationsBank of Texas, N.A., as Documentary Agent
and Commerzbank, A.G., as Co-Agent. Terms defined in the Credit Agreement and
not defined herein are used herein with the same meaning.
________________________ (the "Assignor") and _____________________
(the "Assignee") agree as follows:
NOW, THEREFORE, for and in consideration of ten dollars ($10) in
hand paid and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an aggregate
interest equal to $______________ in principal amount, and a proportionate
interest as of the Effective Date (as defined below) in and to all of the
Assig-nor's rights and obligations under the Credit Agreement (including,
without limitation, a proportionate interest in the Assignor's Commitment
[including the Letter of Credit Commitment ] as in effect on the Effective
Date, the Note, including without limitation, Advances owing to the Assignor
on the Effective Date, and the interest of the Assignor in any Letter of
Credit).
2. The Assignor (i) represents and warrants that as of the date
hereof (prior to giving effect to this Assignment and Acceptance) its
Commitment is $__________; (ii) its Letter of Credit Commitment is $________;
and the aggregate outstanding principal amount of Advances owing to it is
$__________; (iii) represents and warrants that it is the legal and
bene-ficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (iv) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any other instrument or document furnished
pursuant thereto; (v) makes no representation or warranty and assumes no
res-ponsibility with respect to the financial condition of the Borrower or any
Guarantor or the performance or observance by the Borrower or any Guarantor of
any of its obligations under any Loan Document to which it is a party, or any
other in-strument or document furnished pursuant thereto; and (vi) attaches
the Note referred to in paragraph 1 above and requests that the Agent exchange
such Note for new Note(s) as follows: a Note dated _______________, 19___ in
the principal amount of $__________ payable to the order of the Assignee; and
a Note dated _______________, 19___ in the principal amount of $__________
payable to the order of the Assignor.
3. The Assignee (i) confirms that it has received a copy of the
Loan Documents, together with copies of the most recent Financial Statements
referred to in Section 6.01 of the Credit Agreement and such other docu-ments
and informa-tion as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assign-ment and Acceptance; (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, con-tinue to make its own credit decisions in taking
or not taking action under the Credit Agreement; (iii) appoints and authorizes
the Agent to take such action as the Agent on its behalf, and to exercise such
powers under the Loan Documents, as are delegated to the Agent by the terms of
the Loan Documents, together with such powers as are reasonably inci-dental
thereto; (iv) agrees that it will perform in accord-ance with their terms all
of the obligations which by the terms of the Credit Agreement and the other
Loan Documents are required to be performed by it as a Bank; (v) (if such
Assignee is a bank or financial institution organized outside the United
States) agrees that it will deliver to the Borrower (with a copy to the Agent)
such certificates, documents or other evidence as may be required from time to
time, including any certificate or statement of exemption required under
Treasury Regulation Section 1.1441-4(a) or Section 1.1441-6(c) or any
subsequent version thereof, to establish that it is not subject to withholding
under Section 1441 or 1442 of the Code, or comparable provisions, because
payments to it are effectively connected with the conduct of a trade or
business conducted in the United States or because it is fully exempt from
United States tax under a provision of an applicable tax treaty; and (vi)
specifies as its address for notices the offices set forth beneath its name on
the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall
be _________________________________________________________ (the "Effective
Date"). Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance
and recording by the Agent, and a copy will be delivered to the Borrower.
5. Upon such acceptance and recording, as of the Effective Date
(i) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assign-ment and Acceptance, have the rights and obligations
of a Bank there-under and under the other Loan Documents and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement and
the other Loan Documents and in the event that the Assignor has assigned
(pursuant to a right granted under the Credit Agreement) to the Assignee
hereunder all of its rights and obligations under the Credit Agreement and the
other Loan Documents, the Assignor shall cease to be a party to the Credit
Agreement and such other Loan Documents.
6. Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement
and the Note in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Note
for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be gov-erned by, and
construed in accordance with, the laws of the State of Texas.
[NAME OF ASSIGNOR]
By
Title:
[NAME OF ASSIGNEE]
By
Title:
Accepted this _____ day
of _______________, 19___
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Agent
By
Title:
