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Exhibit 10(xlviii)
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of August 22,1997 among ▇▇▇▇▇ FARGO BANK (TEXAS),
N.A. (the "Assignor"), TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the
"Assignee"), THE NORTH AMERICAN COAL CORPORATION (the "Borrower") and ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
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WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Credit Agreement dated as of September 27, 1991 among the
Borrower, the Assignor and the other Banks party thereto, as Banks, and the
Agent (as amended from time to time, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $7,500,000;
WHEREAS, immediately prior to the effectiveness hereof, there are no
outstanding Committed Loans made to the Borrower by the Assignor under the
Credit Agreement; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of its Commitment
thereunder in an amount equal to $7,500,000 (the "Assigned Amount") and the
Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
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SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount. Provided that all the
Committed Loans made by the Assignor to the Borrower have been repaid in full,
upon the (x) execution and delivery hereof by the Assignor, the Assignee, the
Borrower and the Agent and (y) payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. It is understood that commitment and/or facility
fees accrued to the date hereof are for the account of the Assignor and such
fees accruing from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party. The Assignor shall pay to the Agent an
administrative fee for processing this assignment of $2,000.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower and the Agent pursuant to Section
9.06(c) of the Credit Agreement. The execution of this Agreement by the Borrower
and the Agent is evidence of this consent. Pursuant to Section 9.06(c) the
Borrower agrees to execute and deliver a Note payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
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SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.
By /s/ ▇▇▇ ▇▇▇▇▇▇
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Title: Assistant Vice President
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
THE NORTH AMERICAN COAL
CORPORATION
By /s/ K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Controller and Treasurer
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VICE PRESIDENT
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