TCO » Topics » Fifth Third Bank, a Michigan banking corporation

This excerpt taken from the TCO 8-K filed Aug 10, 2006.

Fifth Third Bank, a Michigan banking corporation


By: /s/ Timothy J. Kalil                                               

Name: Timothy J. Kalil                                               

Title: Vice President                                                   


Loan Commitment: $20,000,000.00


Address for Notices:

Fifth Third Bank

1000 Town Center

Suite 1400


Southfield, Michigan 48075

Attention: Jessica English

Fax: (248) 603-0149


With a copy to:

Fifth Third Bank

5050 Kingsley Drive

Mail Code: 1MOC2B

Cincinnati, OH 45263

Attention: Tania Baker

Fax: (513) 358-1060



Signature Page - 15







ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of __________, 200__, between [insert name of assigning Bank] (“Assignor”) and [insert name of Assignee] (“Assignee”).

Preliminary Statement

1.     This Assignment and Assumption Agreement (this “Agreement”) relates to the Amended and Restated Secured Revolving Credit Agreement (as the same may be amended from time to time, the “Loan Agreement”) dated as of August 9, 2006 among Borrowers, the Banks party thereto and Administrative Agent. All capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Loan Agreement.

2.     Subject to the terms and conditions set forth in the Loan Agreement, Assignor has made a Loan Commitment to Borrowers in the current principal amount of $____________ (“Assignor’s Loan Commitment”).

3.     Assignor desires to assign to Assignee all of the rights of Assignor under the Loan Agreement and other Loan Documents in respect of a portion of its Loan and Loan Commitment in an amount equal to $__________ (“Assigned Loan Commitment”) and a portion of the outstanding principal balance of Assignor’s Loan in the same proportion as the Assigned Loan Commitment bears to Assignor’s Loan Commitment (the “Assigned Loan” the Assigned Loan Commitment and Assigned Loan referred to collectively as the “Assigned Loan and Commitment”); and Assignee desires to accept assignment of such rights and assume the corresponding obligations from 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.Assignment. Assignor hereby assigns and sells to Assignee all of the rights of Assignor under the Loan Agreement in and to the Assigned Loan and Commitment, and Assignee hereby accepts such assignment from Assignor and assumes all of the obligations of Assignor under the Loan Agreement with respect to the Assigned Loan and Commitment. Upon the execution and delivery hereof by Assignor, Assignee, Borrowers (if applicable) and Administrative Agent and the payment of the amount specified in Section 2 hereof required to be paid on the date hereof, (1) Assignee shall, as of the commencement of business on the date hereof, succeed to the rights and obligations of a Bank under the Loan Agreement and other Loan Documents with a Loan and a Loan Commitment in amounts equal to the Assigned Loan and Commitment and (2) the Loan and Loan Commitment of Assignor shall, as of the commencement of business on the date hereof, be reduced correspondingly and Assignor released from its obligations under the Loan Agreement to the extent such obligations have been assumed by Assignee. Assignor represents and warrants that it (x) owns the Assigned Loan and Commitment free and clear of all liens and other encumbrances and (y) is legally authorized to enter into and perform this Agreement. Except as set forth in the immediately preceding





sentence, the assignment provided for herein shall be without representation or warranty by, or recourse to, Assignor.

SECTION 2.Payments. As consideration for the assignment and sale contemplated in Section 1 hereof, Assignee shall pay to Assignor on the date hereof in immediately available funds an amount equal to the amount of the Assigned Loan. It is understood that any fees paid to Assignor under the Loan Agreement are for the account of Assignor, except as Assignor and Assignee shall have otherwise agreed. Assignor and Assignee shall prorate interest when and as received from Borrowers. Each of Assignor and Assignee hereby agrees that if it receives any amount under the Loan 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.

SECTION 3.Consent of Borrower and Administrative Agent; Execution and Delivery of Notes. This Agreement is conditioned upon the consent of Borrowers and of Administrative Agent pursuant to Section 12.05 of the Loan Agreement, except as otherwise provided in such section. The execution of this Agreement by Borrowers and Administrative Agent is evidence of this consent. Pursuant to Section 12.05 of the Loan Agreement, each Borrower has agreed to execute and deliver Notes payable to the respective orders of Assignee and Assignor to evidence the assignment and assumption provided for herein.

SECTION 4.Non-Reliance on Assignor. Assignor makes no representation or warranty in connection with, and shall have no responsibility with respect to, the solvency, financial condition, or statements of any Borrower or any other party to any Loan Document, or the validity and enforceability of the obligations of any Borrower or any other party to a Loan Document in respect of the Loan Agreement or any other Loan Document. Assignee acknowledges that it has, independently and without reliance on Assignor, and based on such documents and information as it has deemed appropriate, made its own analysis of the Collateral, credit analysis of each Borrower and decision to enter into this Agreement `and will continue to be responsible for making its own independent appraisal of the Collateral and of the business, affairs and financial condition of Borrower and the other parties to the Loan Documents.

SECTION 5.Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the Laws of the State of New York (without giving effect to New York’s principles of conflicts of law).

SECTION 6.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.






SECTION 7.Certain Representations and Agreements by Assignee. Assignee represents and warrants that it is legally authorized to enter into and perform this Agreement. In addition, Assignee represents that it is entitled to receive any payments to be made to it under the Loan Agreement or hereunder without the withholding of any tax and agrees to furnish the evidence of such exemption as specified in Section 10.13 of the Loan Agreement and otherwise to comply with the provisions of said Section.

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