Exhibit 10.11
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Assignment Agreement
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(Related to Bank Credit Agreement)
Reference is made to the Credit Agreement described in Item 2 of Annex I annexed
hereto (as amended and as the same may from time to time be further amended,
modified or supplemented, the "CREDIT AGREEMENT"). Except as defined herein or
in Annex I attached hereto, terms defined in the Credit Agreement are used
herein as therein defined.
THE HUNTINGTON NATIONAL BANK (the "ASSIGNOR") and LASALLE BANK NATIONAL
ASSOCIATION (the "ASSIGNEE") hereby agree as follows:
The Assignor hereby sells and assigns to the Assignee without recourse and
without representation or warranty (other than as expressly provided herein),
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 in Item 4 of Annex I (the "Assigned Share") of all of Assignor's
outstanding rights and obligations under the Credit Agreement indicated in Item
4 of Annex I, including, without limitation, all rights and obligations with
respect to the Assigned Share of the Assignor's Commitment and of the Loans,
Unpaid Drawings and the Notes held by the Assignor. After giving effect to such
sale and assignment, the Assignee's Commitment will be as set forth in Item 4 of
Annex I.
The Assignor (i) represents and warrants that it is duly authorized to enter
into and perform the terms of this Assignment Agreement, 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 liens or security interests; (ii) 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 other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents 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 the
Borrower or any of its Subsidiaries or the performance or observance by the
Borrower or any of the other Credit Parties of any of its obligations under the
Credit Agreement or the other Credit Documents or any other instrument or
document furnished pursuant thereto.
The Assignee (i) represents and warrants that it is duly authorized to enter
into and perform the terms of this Assignment Agreement; (ii) confirms that it
has received a copy of the Credit Agreement and the other Credit Documents,
together with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment Agreement; (iii)
agrees that it will, independently and without reliance upon the Administrative
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 the Credit Agreement; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the
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Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (v) agrees that it will perform in accordance
with the Administrative Agent's terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender.
Following the execution of this Assignment Agreement by the Assignor and the
Assignee, an executed original hereof (together with all attachments) will be
delivered to the Administrative Agent. The effective date of this Assignment
Agreement shall be the date of execution hereof by the Assignor, the Assignee
and the consent hereof by the Administrative Agent and the receipt by the
Administrative Agent of the administrative fee referred to in section 12.4(c) of
the Credit Agreement, unless otherwise specified in Item 5 of Annex I hereto
(the "Settlement Date").
Upon the delivery of a fully executed original hereof to the Administrative
Agent, as of the Settlement Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment Agreement, have
the rights and obligations of a Lender thereunder and under the other Credit
Documents, and (ii) the Assignor shall, to the extent provided in this
Assignment Agreement, relinquish its rights and be released from its obligations
under the Credit Agreement and the other Credit Documents.
It is agreed that upon the effectiveness hereof, the Assignee shall be entitled
to (x) all interest on the Assigned Share of the Loans at the rates specified in
Item 6 of Annex I, (y) all Commitment Fees (if applicable) on the Assigned Share
of the Commitment at the rate specified in Item 7 of Annex I, and (z) all Letter
of Credit Fees (if applicable) on the Assignee's participation in all Letters of
Credit at the rate specified in Item 8 of Annex I hereto, that, in each case,
accrue on and after the Settlement Date, such interest and, if applicable,
Commitment Fees and Letter of Credit Fees, to be paid by the Administrative
Agent, upon receipt thereof from the Borrower, directly to the Assignee. It is
further agreed that all payments of principal made by the Borrower on the
Assigned Share of the Loans that occur on and after the Settlement Date will be
paid directly by the Administrative Agent to the Assignee. Upon the Settlement
Date, the Assignee shall pay to the Assignor an amount specified by the Assignor
in writing that represents the Assigned Share of the principal amount of the
respective Loans made by the Assignor pursuant to the Credit Agreement that are
outstanding on the Settlement Date, net of any closing costs, and that are being
assigned hereunder. The Assignor and the Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Settlement Date directly between themselves on the Settlement Date.
THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE HUNTINGTON NATIONAL BANK, LASALLE BANK NATIONAL ASSOCIATION,
as Assignor as Assignee
By: By:
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Name: Name:
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Title: Title:
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Acknowledged and Agreed:
NATIONAL CITY BANK,
as Administrative Agent
By:
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Name:
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Title:
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ANNEX I
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The Borrower:
ANTHONY & SYLVAN POOLS CORPORATION
Name and Date of Credit Agreement:
Credit Agreement, dated as of July 8, 1999, as amended, among
Anthony & Sylvan Pools Corporation, the Lenders from time to
time party thereto, and National City Bank, as Administrative
Agent.
Date of Assignment Agreement:
February 8, 2002
Amounts (as of date of item #3 above):
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COMMITMENT LOANS
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Aggregate Amount for all Lenders $35,000,000 $13,000,000.00
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Assigned Share 28.57142857% 28.57142857%
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Amount of Assigned Share $10,000,000 $3,714,285.72
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Amount Retained by Assignor $ 0.00 $0.00
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Settlement Date:
February 22, 2002
Rate of Interest to the Assignee:
As set forth in section 2.7 of the Credit Agreement (unless
otherwise agreed to by the Assignor and the Assignee).
Commitment Fee:
As set forth in section 4.1(a) of the Credit Agreement (unless
otherwise agreed to by the Assignor and the Assignee).
Letter of Credit Fees:
As set forth in section 4.1(b) of the Credit Agreement (unless
otherwise agreed to by the Assignor and the Assignee).
Notices:
ASSIGNOR: ASSIGNEE:
The Huntington National Bank LaSalle Bank National Association
917 Euclid Avenue 135 S. LaSalle
Cleveland, Ohio 44115 Mailcode 135-1112
Attention: Laura L. Conway, Vice President Chicago, Illinois 60603
Telephone No.: 216-515-6258 Attention: Tracy Harper, Asst. Vice President
Facsimile No.: 216-515-6076 Telephone No.: 312-904-7012
Facsimile No.: 312-904-9293
Payment Instructions:
ASSIGNOR: ASSIGNEE:
The Huntington National Bank LaSalle Bank National Association
917 Euclid Avenue 135 S. LaSalle
Cleveland, Ohio 44115 Mailcode 135-1112
ABA No. 044-000-024 Chicago, Illinois 60603
Account No.: GL 15804-777777 ABA No. 071 000 505
Reference: Anthony & Sylvan Pools Corporation Account No.: GL 137 8018 7300
Attention: Commercial Loan Operations Reference: Anthony & Sylvan Pools Corporation
Telephone No.: 216-515-6743 Attention: Kim Allen
Facsimile No.: 216-515-6251 Telephone No.: 312-904-8173
Facsimile No.: 312-904-9293
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