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EXHIBIT 10.22
FORM ASSIGNMENT AND ACCEPTANCE
Dated ___________________________
Reference is made to the Revolving Credit and Term Loan Agreement,
dated as of _____________, ____ (the "Credit Agreement"), among
_______________, a ____________ corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement) and __________________, as Agent for the
Lenders (the "Agent"). Terms defined in the Credit Agreement and not otherwise
defined herein are used herein with as therein defined.
______________________________________ (the "Assignor") and
_________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and
to all of the Assignor's rights and obligations under the Credit Agreement as
of the date hereof which represents the percentage interest specified on
Section 1 of Schedule 1 of the aggregate outstanding rights and obligations
under the Credit Agreement, including, without limitation, such interest in the
Assignor's Working Capital Commitment outstanding on the Effective Date (as
hereinafter defined), the Working Capital Advances owing to the Assignor
outstanding on the Effective Date (as hereinafter defined), the Term Advance
owing to the Assignor outstanding on the Effective Date, and the Notes held by
the Assignor. After giving effect to such sale and assignment, the Assignee's
Working Capital Commitment and the amount of the Working Capital Advances and
of the Term Advance owing to the Assignee will be set forth in Section 2 of
Schedule 1.
2. The Assignor (i) 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; (ii) 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; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Notes referred to in
paragraph 1 above and requests that the Agent exchange such Notes for a new
Term Note payable to the order of the Assignee in a principal amount equal to
the Term Advance purchased and a new Working Capital Note payable to the order
of the Assignee in a principal amount equal to the Working Capital Commitment
assumed by the Assignee pursuant hereto.
3. The Assignee (i) confirms that it has received a copy of the
Loan Documents, together with copies of the financial statements delivered to
each Lender in connection therewith and such other documents and information as
it has deemed appropriate to make its own credit
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analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the 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 any Loan Document; (iii) confirms that it is
an Eligible Assignee; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (vi) specifies as its Domestic Lending Office (and
address for notices) and Eurodollar Lender Office the offices set forth beneath
its name on the signature pages hereof; and (vii) attaches the forms prescribed
by the Internal Revenue Service of the United States certifying as to the
Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes or such other documents as are specified in
Section 2.11 of the Credit Agreement.
4. 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. The effective date of this Assignment and
Acceptance shall be the date of acceptance thereof by the Agent, unless
otherwise specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) 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 (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.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes 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
Notes for periods prior to the Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
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Schedule 1
to
Assignment and Acceptance
Dated ______________________
Section 1.
----------
Percentage Interest Assigned: ______%
Section 2.
----------
Assignee's Working Capital Commitment: $________________
Aggregate Outstanding Principal Amount of
Working Capital Advances owing to
the Assignee: $________________
Outstanding Principal Amount of Term
Advance owing to the Assignee: $________________
Working Capital Note payable to the order
of the Assignee
Dated: _________________
Principal amount: $________________
Term Note payable to the order of the Assignee
Dated: _________________
Principal amount: $________________
Section 3.
----------
Effective Date: _________________
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________________________________
By:_____________________________
Title:
________________________________
By:_____________________________
Title:
________________________________
By:_____________________________
Title:
Domestic Lending Office:
________________________________
________________________________
________________________________
________________________________
Eurodollar Lending Office:
________________________________
________________________________
________________________________
________________________________
Accepted this ____________ day
of ___________________, 1996
__________________________________
By:_______________________________
Title:
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FORM CONSENT LETTER
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
Re: Assignment and Acceptance (the "Assignment and
Acceptance") dated _________________, 1996 between
___________________________ ("Assignor") and
___________________________ ("Assignee")
Ladies and Gentlemen:
Pursuant to the Assignment and Acceptance and subject to your consent, Assignor
has made an assignment to Assignee (the "Assignment") of that interest in
Assignor's rights under the Credit Agreement as is identified in the Assignment
and Acceptance (the "Interest"). The term "Credit Agreement" means the Credit
Agreement referred to in the Assignment and Acceptance. Unless otherwise
defined herein, terms used herein and defined in the Credit Agreement shall be
used herein as so defined.
In order to induce _________________________ (the "Borrower") to grant its
consent to the Assignment, the Assignee hereby represents and warrants as of
the date the Assignment is effected to, and agrees with, the Borrower as
follows: Assignee (i) has received a copy of the Credit Agreement and the
other Loan Documents, together with such financial statements and other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into the Assignment and Acceptance; (ii) is a
sophisticated purchaser and has, independently and without reliance upon the
Borrower or any representations or warranties made by the Borrower, and based
on such documents and information as it has deemed appropriate, made its own
credit decisions in entering into the Assignment and Acceptance and purchasing
the Interest; (iii) has appointed and authorized the Agent to take such action
as the Agent on its behalf and to exercise such powers and discretion under the
Credit Agreement and the other Loan Documents as are delegated to the Agent by
the Lenders by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms, and hereby assumes for the benefit of the
Borrower, all obligations and liabilities of the Assignor under or in
connection with the Loan
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Documents to the full extent as if Assignee were a Lender signatory to the
Credit Agreement and the other Loan Documents to which Assignor is a party; (v)
specifies as its Domestic Lending Office and Eurodollar Lending Office (and as
addresses for notices) the offices set forth beneath its name on the Assignment
and Acceptance; (vi) to the extent applicable, has attached hereto four
original copies of each certificate or form required by the first sentence of
Section 2.11(e) of the Credit Agreement; (vii) has executed this letter and the
Assignment and Acceptance in the form attached here and confirms that both do
constitute the duly authorized, legal, valid and binding obligations of
Assignee, enforceable in accordance with their terms; and (viii) without
implying any characterization of the Interest as a "security" within the
meaning of any applicable securities laws, is not acquiring the Interest with a
view to, or for resale in connection with, any distribution or public offering
of all or part thereof or of any interest therein in a manner which would
violate applicable securities laws, provided that, this clause (viii) shall be
without prejudice to Assignee's rights to effect such resale in accordance with
all applicable law and the Loan Documents.
Without limiting the generality of the foregoing, Assignee specifically
acknowledges and agrees that the Borrower shall not be liable to Assignee for
any increased costs described in Section 2.09 of the Credit Agreement or for
any Taxes or Other Taxes incurred by Assignee at any time.
By signing a copy of this letter in the space provided, the Borrower accepts
the agreements of Assignee herein and consents to the purchase by Assignee of
the Assignment.
_____________________________
By: _________________________
Title:
Accepted and consenting as of
the date first above written
_____________________________
By: _________________________
Title:
