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EXHIBIT 10.52
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of January
12, 1999 (the "Credit Agreement") among Denali Incorporated, a Delaware
corporation (the "Borrower"), the lenders which are or may become parties to the
Credit Agreement (the "Lenders"), Canadian Imperial Bank of Commerce, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), and ING (U.S.) Capital LLC, as documentation agent. Terms defined in
the Credit Agreement and not otherwise defined herein are used herein with the
meanings so defined.
________________________________________ (the "Assignor") and Southwest Bank of
Texas, N.A. (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), all of the Assignor's interest (the
"Assigned Interest") in and to the Assignor's rights and obligations under the
Credit Agreement as are set forth on SCHEDULE 1 (individually, an "Assigned
Facility"; collectively, the "Assigned Facilities"), in a principal amount for
each Assigned Facility as set forth on SCHEDULE 1.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Documents or any other instrument or
document furnished pursuant thereto, other than that it has not created any
adverse claim upon the interest being assigned by it hereunder and that such
interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of, the Borrower or any Subsidiary or any other obligor or
the performance or observance by, the Borrower or any Subsidiary or any obligor
of any of their respective obligations under the Credit Agreement or any other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note(s) held by it evidencing the Assigned
Facilities and requests that the Agent exchange such Note(s) for a new Note or
Notes payable to the Assignee (and, if the Assignor is retaining any portion of
its rights and obligations under the Loan Documents, to the Assignor) in the
amounts which reflect the assignment being made hereby.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 9.1 thereof 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; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative
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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 decisions in
taking or not taking action under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are incidental thereto;
and (e) agrees that it will be bound by the provisions of the Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender including,
if it is organized under the laws of a jurisdiction outside the United States,
its obligation pursuant to subsection 6.11(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall
be March 15, 1999 (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to Section
13.6(c) of the Credit Agreement, effective as of the Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be earlier than
five Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) 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.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
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SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT, DATED AS OF JANUARY 12, 1999
AMONG
DENALI INCORPORATED
THE LENDERS NAMED THEREIN,
CANADIAN IMPERIAL BANK OF COMMERCE, AS ADMINISTRATIVE AGENT FOR THE LENDERS
(IN SUCH CAPACITY, THE "ADMINISTRATIVE AGENT"), AND
ING (U.S.) CAPITAL LLC, AS DOCUMENTATION AGENT.
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Name of Assignor:
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Name of Assignee: Southwest Bank of Texas, N.A.
Effective Date of Assignment: March 15, 1999
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned
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Term Loan $ 666,666.66 3.33%
Acquisition Loan $ 1,166,666.67 3.33%
Revolving Credit Loan $ 666,666.67 3.33%
ING (U.S.) CAPITAL LLC SOUTHWEST BANK OF TEXAS, N.A.
By /S/ ▇▇▇▇▇▇ ▇▇▇▇ By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Title: Sr. Vice President
KEY CORPORATE CAPITAL INC.
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CIBC INC.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director, CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp, as Agent
Accepted:
Canadian Imperial Bank of Commerce,
as Administrative Agent
By /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
[Add if applicable]Denali Incorporated
as Borrower
By /S/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CFO/Treasurer
