EXHIBIT 10.10
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as
of _____________, 200__, is between _________________(the "Assignor") and
_______________ (the "Assignee"), and acknowledged (or deemed acknowledged) by
Interfund Investment Fund I, LLC (the "Company") and Collateral Service
Associates, LLC, as the Collateral Agent under the Collateral Agency Agreement
described below.
WHEREAS, the Assignor is a party to a Note Purchase Agreement, dated as
of ________________, 200__ (as amended or otherwise modified from time to time,
the "Note Purchase Agreement"), with Interfund Investment Fund I, LLC (the
"Company");
WHEREAS, in conjunction with the Note Purchase Agreement, the Company
issued to the Assignor one or more 8% Secured Promissory Notes, each dated as of
________________, 200__ (each a "Note" and collectively, the "Notes");
WHEREAS, in order to secure its obligations under the Note(s) and
related agreements, the Company entered into a Security Agreement, dated as of
December 22, 2003 (as amended or otherwise modified from time to time, the
"Security Agreement"), with the Collateral Agent whereby the Company granted a
security interest in the Collateral (as defined therein) to the Collateral
Agent, for the benefit of the Collateral Agent and the Noteholders (as defined
in the Collateral Agency Agreement), including the Assignor, in order to secure
such obligations;
WHEREAS, the Company, the Collateral Agent and the Noteholders entered
into a Collateral Agency Agreement, dated as of February 5, 2004 (as amended or
otherwise modified from time to time, the "Collateral Agency Agreement"),
whereby the Noteholders appointed the Collateral Agent as collateral agent in
accordance with the terms thereof;
WHEREAS, the Assignor desires to assign to Assignee all of its right,
title and interest in the Assigned Notes (as defined below) and to delegate to
the Assignee the Assigned Interest (as defined below), in each case, as more
fully set forth below; and
WHEREAS, the Assignee desires to become a Noteholder under the
Collateral Agency Agreement and to accept such assignment and delegation of the
Assigned Interest from the Assignor.
NOW THEREFORE, in consideration of the foregoing and the agreements
herein contained, the Assignor and the Assignee hereby agree as follows:
1. Capitalized terms used but not otherwise defined herein have the
respective meanings given to them in the Collateral Agency Agreement.
2. Without recourse and without representations or warranties of any
kind (except as expressly set forth below), the Assignor hereby irrevocably (i)
assigns and transfers to the
Assignee all of the Assignor's right, title and interest in and to the
specific Notes described on Schedule A hereto (collectively, the "Assigned
Notes"), and (ii) delegates, assigns and transfers to the Assignee a
proportionate interest in its rights and duties under the Collateral Agency
Agreement and in connection with the Collateral (collectively, the "Assigned
Interest"), in each case, together with all proceeds, profits and returns of and
from, all rights to prosecute, settle or otherwise pursue, and all distributions
on and rights arising out of, the Assigned Notes and the Assigned Interest,
subject to the limitations contained in the Collateral Agency Agreement.
3. The Assignee hereby irrevocably assumes, purchases and accepts such
assignment and delegation and agrees to be a Noteholder with respect to the
Assigned Notes and the Assigned Interest and to be bound by the terms and
conditions of the Collateral Agency Agreement and the Loan Documents.
4. The Assignor and the Assignee each acknowledge and agree that
interest and fees accrued prior to the Effective Date (as defined below) are for
the account of the Assignor.
5. The assignment and delegation contemplated by this Agreement will be
effective and the Assignee will become a Noteholder under the Collateral Agency
Agreement and the Loan Documents, and shall be deemed to be a signatory to the
Collateral Agency Agreement, as of the date of this Agreement ("Effective Date")
and upon (i) payment of the Purchase Price (as defined below) to the Assignor,
(ii) execution and delivery of this Agreement by each of the Assignor and the
Assignee, and (iii) execution and delivery of a new Note Purchase Agreement by
the Assignee in favor of the Company. If the conditions precedent set forth in
the preceding sentence are satisfied, the assignment and delegation contemplated
by this Agreement shall become effective without the need for acknowledgment by
the Company or the Collateral Agent; provided, however, that if the Assignee is
not a Qualified Transferee, the assignment and delegation contemplated by this
Agreement shall be null and void.
6. The Assignee will pay to the Assignor, in immediately available
funds, not later than 12:00 noon (Eastern time) on the Effective Date, an amount
equal to $__________ (the "Purchase Price").
7. Promptly after the Effective Date, the Assignor will deliver to the
Assignee the original Assigned Notes (or "lost note" affidavits). The Assignee
may, at its option, request that the Company issue replacement Notes evidencing
the indebtedness represented by the Assigned Notes by delivering a written
request therefor to the Company together with the original Assigned Notes (or
"lost note" affidavits).
8. The Assignor represents and warrants to the Assignee that the
Assignor is the legal and beneficial owner of the interests being assigned and
delegated hereby, free and clear of
any adverse claim, lien, encumbrance, security interest, restriction on
transfer, purchase option, call or similar right of a third party. The Assignee
represents, warrants, and covenants the following to the Assignor (and to the
Collateral Agent and the Company as third party beneficiaries of this
Agreement): (i) the Assignee is a Qualified Transferee, and will continue to be
a Qualified Transferee; (ii) the Assignee has made its own independent
investigation and appraisal of the financial condition and affairs of the
Company, has conducted its own evaluation of the Loan Documents, the Company's
creditworthiness and the interests being assigned and delegated hereby, has made
its decision to become a Noteholder independently and without reliance upon the
Assignor or the Collateral Agent, and will continue to do so; and (iii) the
Assignee understands that its ability to further assign and delegate the
interest being assigned and delegated hereby is restricted by the terms of the
Loan Documents.
9. No course of dealing and no delay or failure of any party hereto in
exercising any right, power or privilege hereunder or under any other documents
or instruments pursuant to or in connection herewith shall affect any other or
future exercise thereof or exercise of any other right, power or privilege; nor
shall any single or partial exercise of any such right, power or privilege or
any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege.
10. The provisions of this Agreement are deemed to be severable. If any
provision of this Agreement shall be held invalid or unenforceable, in whole or
in part, such provision shall, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability of the remaining provisions hereof.
11. This Agreement may be executed in any number of counterparts each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. This Agreement may be delivered by
facsimile with the same force and effect as if it were a manually delivered
counterpart.
12. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that the
Assignee may not assign or transfer any of its rights or obligations hereunder
or any interest therein unless such assignee or transferee constitutes a
Qualified Transferee and such Qualified Transferee executes and delivers to the
Collateral Agent an Assignment Agreement; and any such purported assignment or
transfer shall be null and void.
13. The Company and the Collateral Agent shall each be third-party
beneficiaries of this Agreement. No other Person shall have any rights hereunder
or shall be entitled to rely on any provision hereof.
14. THIS AGREEMENT AND ALL MATTERS RELATING TO OR ARISING OUT OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
15. EACH PARTY HERETO WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A JURY
TRIAL IN CONNECTION WITH ANY LITIGATION COMMENCED BY OR AGAINST ANY OTHER PARTY
HERETO (OR THE COMPANY OR THE COLLATERAL AGENT) WITH RESPECT TO THIS AGREEMENT
AND ALL MATTERS RELATING TO OR ARISING OUT OF THIS AGREEMENT.
16. EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF COURTS OF RECORD OF THE STATE OF FLORIDA LOCATED
IN PALM BEACH COUNTY, FLORIDA AND THE UNITED STATES DISTRICT COURT LOCATED IN
SUCH COUNTY, WHICHEVER THE COLLATERAL AGENT MAY ELECT.
17. Any amendment of this Agreement must be in writing and signed by
each of the parties to be bound thereby.
18. Each party hereto shall execute and deliver to any other party
hereto such additional agreements, documents and instruments and take such
further actions as may be reasonably requested by such other party to effectuate
the provisions and purposes of this Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement as of the date and year first written above.
ASSIGNOR:
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By:_______________________________
Name Printed: ____________________
Title:____________________________
ASSIGNEE:
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By: ______________________________
Name Printed: ____________________
Title:____________________________
Acknowledged:
COMPANY:
Interfund Investment Fund I, LLC
By: ______________________________
Name Printed: ______________________
Title:______________________________
COLLATERAL AGENT:
COLLATERAL SERVICE ASSOCIATES, LLC
By: ______________________________
Name Printed: ______________________
Title:______________________________
[SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT]
EXHIBIT C
SCHEDULE A
ASSIGNED INTEREST
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NOTE NO.: PRINCIPAL BALANCE (AS OF THE EFFECTIVE DATE):
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