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EXHIBIT 10.4
ASSIGNMENT AND ASSUMPTION AGREEMENT
Date: August 31, 1995
To: Bingo Press & Specialty Limited
301 Louth Street
St. Catharines, Ontario
and
Bank of America Canada, as Agent
Four King Street West
Toronto, Ontario M5H 1B6
Re: Assignment under the Credit Agreement referred to below
Ladies and Gentlemen:
We refer to Section 10.08 of the Credit Agreement, dated as of
December 13, 1994 (as amended or otherwise modified, the "Credit Agreement"),
among Stuart Entertainment, Inc., a Delaware corporation (the "U.S. Company"),
1089350 Ontario Inc. (n/k/a Bingo Press & Specialty Limited), an Ontario
corporation (the "Canadian Company"), the various financial lending
institutions from time to time parties thereto, Bank of America Canada, as
agent as provided therein (the "Canadian Agent"), and Bank of America National
Trust and Savings Association, as agent as provided therein (the "U.S. Agent").
Unless otherwise defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
Bank of America Canada (the "Assignor") hereby assigns and delegates
to The Chase Manhattan Bank of Canada (the "Assignee") an interest of 50% of
all of the rights and obligations of Assignor under the Credit Agreement and
the other Loan Documents in respect of Assignor's Revolving Commitment, Term
Commitment, outstanding Revolving Loans, outstanding Letters of Credit and
outstanding Term Loans to the Canadian Company (such interest in such rights
and obligations are hereinafter referred to as the "Assigned Interest"), and
Assignee hereby accepts such assignment and delegation. After giving effect to
such assignment and delegation, each of Assignee's and Assignor's Revolving
Commitment and Term Commitment (which is the outstanding principal balance of
its Term Loans) to the Canadian Company for the purposes of the Credit
Agreement will be as set forth above the signatures thereof.
The Assignor hereby instructs the Canadian Agent to make all payments
from the Effective Date (as defined below) hereof in respect of the Assigned
Interest directly to the
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Assignee; provided, that Assignee shall not be entitled to any portion of the
Upfront Fee set forth in Section 2.10(a) of the Credit Agreement or the
Administrative Fee set forth in Section 2.10(c) of the Credit Agreement. The
Assignor and the Assignee agree that all interest and fees accrued up to, but
not including, the Effective Date of the assignment and delegation being made
hereby are the property of the Assignor, and not the Assignee. The Assignee
agrees that, upon receipt of any such interest or fees, the Assignee will
promptly remit the same to the Assignor.
The Assignor represents and warrants to the Assignee that (a) the
Assignor is the legal and beneficial owner of the Assigned Interest and the
Assigned Interest is free and clear of any adverse claim, (b) the Assignor has
committed to make the Revolving Loans in an aggregate principal amount not to
exceed Cdn. $13,875,000 of which Cdn. $__________ is outstanding as of August
28, 1995 and has made a Term Loan in an aggregate principal amount of Cdn.
$13,875,000 of which Cdn. $12,487,500 is currently outstanding, (c) the
Assignor has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption Agreement and any other
documents required or permitted to be executed or delivered by it in connection
with this Assignment and Assumption Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this Assignment and
Assumption Agreement, and no governmental authorizations or consents or other
authorizations or consents are required in connection therewith, (d) this
Assignment and Assumption Agreement constitutes the legal, valid and binding
obligation of the Assignor enforceable against the Assignor in accordance with
its terms, (e) the making and performance by the Assignor of this Assignment
and Assumption Agreement and any other documents required or permitted to be
executed or delivered by it in connection with this Assignment and Assumption
Agreement do not and will not violate any law or regulation of the jurisdiction
of its organization or any other law or regulation applicable to it and (f) the
Assignor has neither given nor received written notice of the occurrence of a
Default or an Event of Default, except as described in the Waiver and First
Amendment to Credit Agreement dated as of April 14, 1995, and the Waiver and
Second Amendment to Credit Agreement dated as of August 14, 1995.
The Assignee hereby confirms that it has received a copy of the Credit
Agreement and the exhibits related thereto, together with copies of the
documents which were required to be delivered under the Credit Agreement as a
condition to the making of the Loans thereunder. The Assignee acknowledges and
agrees that it (i) has made and will continue to make such inquiries and has
taken and will take such care on its own behalf as would have been the case had
its Commitment been granted and its Loans been made directly by such Assignee
to the Canadian Company without the intervention of the Applicable Agent of
such Company, the Assignor or any other Lender and (ii) has made and will
continue to make, independently and without reliance upon the Agents, the
Assignor or any other Lender and based on such documents and information as it
has deemed appropriate, its own credit analysis and decisions relating to the
Credit Agreement. The Assignee further acknowledges and agrees that neither
the Agents nor the Assignor has made any representations or warranties about
the creditworthiness of the Companies or any other party to the Credit
Agreement or any other Loan Document or with respect to the legality, validity,
sufficiency or enforceability of the Credit
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Agreement or any other Loan Document or the value of any security therefor.
This Assignment shall be made without recourse to the Assignor.
The Assignee represents and warrants to the Canadian Agent that, as of
the date hereof, the Canadian Company will not be obligated to pay any greater
amount under Section 3.01 of the Credit Agreement than the Canadian Company is
obligated to pay to the Assignor under such Sections.
Except as otherwise provided in the Credit Agreement, effective as of
the date of acceptance hereof by the Agent:
(a) the Assignee (i) shall be deemed automatically to
have become a party to the Credit Agreement and have all the rights
and obligations of a "Lender" under the Credit Agreement as if it were
an original signatory thereto to the extent specified in the second
paragraph hereof; and (ii) agrees to be bound by the terms and
conditions set forth in the Credit Agreement as if it were an original
signatory thereto; and
(b) the Assignor shall be released from its obligations
under the Credit Agreement to the extent specified in the second
paragraph hereof.
The payment of the processing fee referred to in clause (a)(i)(C) of
Section 10.08 of the Credit Agreement is hereby waived by the Canadian Agent.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and Commitment(s):
(A) Address for Notices:
The Chase Manhattan Bank of Canada
150 King Street West
Toronto, Ontario M5H 1J9
Attention: Timothy Wilson
Telephone: (416) 585-3367
Facsimile: (416) 585-3370
with a copy to:
The Chase Manhattan Bank (National Association)
999 Broad Street
Bridgeport, Connecticut 06604
Attention: A. Neil Sweeny
Telephone: (203) 368-5010
Facsimile: (203) 382-6573
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(B) Payment Instructions:
Royal Bank of Canada
Main Branch, Toronto
Correspondent Banking Division
Transit No. 07172
F/A: The Chase Manhattan Bank of Canada
Account No. 219-247-4
(C) Effective Date of Assignment: August 31, 1995
The Assignee has delivered, if appropriate, to the Canadian Agent and
such Company's Applicable Agent the forms and certificates referred to in
Section 3.01(f) of the Credit Agreement.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER,
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF ILLINOIS.
This Assignment and Assumption Agreement may be executed in any number
of counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same agreement. Please evidence your
consent to and acceptance of the proposed assignment and delegation set forth
herein by signing and returning counterparts hereof to the Assignor and the
Assignee.
Assignee's Revolving Commitment = Cdn. $6,937,500
Assignee's Term Commitment (the outstanding principal
balance of its Term Loans) = Cdn. $6,243,750
Assignor's Revolving Commitment = Cdn. $6,937,500
Assignor's Term Commitment (the outstanding principal
balance of its Term Loans) = Cdn. $6,243,750
BANK OF AMERICA CANADA
By
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Title:
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THE CHASE MANHATTAN BANK OF CANADA
By
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Title:
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ACCEPTED AND CONSENTED
this ____ day of August 1995
BANK OF AMERICA CANADA,
as Agent
By
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Title:
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CONSENTED TO
this ____ day of August 1995
BINGO PRESS & SPECIALTY LIMITED
(f/k/a 108935 Ontario Inc.)
By
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Title:
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