EXHIBIT 10.56
ASSIGNMENT AND ACCEPTANCE AGREEMENT
Assignment and Acceptance Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, this "Agreement"), dated
as of August 22, 1996, by and between Fleet Bank, N.A. (formerly known as,
NatWest Bank N.A., the "Assignor") and Key Bank of New York (the "Assignee").
RECITALS
I. Reference is made to the Credit Agreement, dated as of May 4, 1995,
as amended by Amendment No. 1 and Reallocation Agreement, dated as of June 12,
1995, Amendment No. 2, dated as of October 27, 1995, Amendment No. 3, dated as
of November 30, 1995, by and among International Post Limited, the Lenders party
thereto, and The Bank of New York, as the Issuer and as the Agent (as the same
may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement").
II. The Assignor wishes to assign and delegate to the Assignee, and the
Assignee wishes to purchase and assume from the Assignor, some of the Assignor's
rights and obligations under the Loan Documents upon the terms, and subject to
the conditions, contained herein.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Assignor and the Assignee
hereby agree as follows:
1. Defined Terms
(a) Each capitalized term used herein which is not otherwise
defined herein shall have the meaning ascribed thereto in the Credit Agreement.
(b) When used in this Agreement, each of the following capitalized
terms shall have the meaning ascribed thereto unless the context hereof
otherwise specifically requires:
"Assigned Percentage": 58.333333%.
"Assignment Effective Date": as defined in Section 5.
"Assignee Notes": as defined in Section 5(a)(v).
"Assignor Rights and Obligations": as of the Assignment Effective
Date, the Assigned Percentage of all of the Assignor's rights and obligations
under the Loan Documents, including, without limitation, such percentage of its
Loans, its Letter of Credit Participation, its rights and obligations in respect
of the LC Outstandings, its Commitments, its Notes, and its rights and
obligations under the Security Agreement and the Guaranty.
"LC Outstandings": as of any date, the excess of (a) the aggregate
sum of all payments by the Assignor in participation of the Reimbursement
Obligations, over (b) all payments to the Assignor in respect of such
participation.
"New Assignor Notes": as defined in Section 5(a)(v).
"Purchase Price": an amount equal to the Assigned Percentage of the
sum of (a) the aggregate unpaid principal amount of the Assignor's Loans as of
the Assignment Effective Date, plus (b) the LC Outstandings as of the Assignment
Effective Date.
2. Assignment; Payment by Assignee
Pursuant to Section 11.7(c) of the Credit Agreement, the Assignor
hereby assigns and delegates to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, without recourse or, except as otherwise
specifically provided herein, representation or warranty, the Assignor Rights
and Obligations. The Assignee agrees to pay to the Assignor the Purchase Price
on the Assignment Effective Date.
3. Representations and Warranties
(a) Assignor. The Assignor hereby represents and warrants to the
Assignee as follows:
(i) aggregate unpaid principal amount of its Working Capital Loans
is $3,840,000, and such Working Capital Loans are composed of the following
Working Capital ABR Advances and Working Capital Eurodollar Advances: (1)
Working Capital ABR Advances: $0, and (2) Working Capital Eurodollar Advances:
(A) $480,000 for 31 days, the last day of which is August 29, 1996, (B)
$2,340,000 for 31 days, the last day of which is September 19, 1996, (C)
$180,000 for 31 days, the last day of which is September 8, 1996, and (D)
$840,000 for 30 days, the last day of which is September 6, 1996,
(ii) the aggregate unpaid principal amount of its Acquisition Loans
is $0,
(iii) the aggregate unpaid principal amount of its Term Loan is
$10,992,000, and such Term Loan is composed of the following Term Loan ABR
Advances and Term Loan Eurodollar Advances: (1) Term Loan ABR Advances: $12,000,
and (2) Term Loan Eurodollar Advances: $10,980,000 for 31 days, the last day of
which is September 12, 1996,
(iv) its Working Capital Commitment Amount is $6,000,000,
(v) its Acquisition Commitment Amount is $0.00,
(vi) the amount of its Letter of Credit Participation is
$717,889.40, and
(vii) the LC Outstandings are $0.00.
(b) Assignee. The Assignee hereby represents and warrants to
the Assignor that (i) it is legally authorized to enter into this Agreement,
(ii) it is an "accredited investor" within the meaning of Regulation D of the
Securities and Exchange Commission, as amended, and (iii) it has, independently
and without reliance upon the Assignor, and based on such documents and
information as it has deemed appropriate, reviewed the Loan Documents and made
its own evaluation of, and investigation into, the business, operations,
Property, financial and other condition and creditworthiness of the Borrower and
made its own decision to enter into this Agreement.
4. Covenants of the Assignee
The Assignee hereby covenants and agrees that it will,
independently and without reliance upon the Assignor, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, evaluations and decisions in taking or not taking
action under the Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, Property, financial
and other condition and creditworthiness of the Borrower.
5. Effectiveness of this Agreement
(a) Section 2 of this Agreement shall not become effective; until
such date (the "Assignment Effective Date") as all of the following conditions
shall have been fulfilled:
(i) The Agent shall have received this Agreement duly executed by
each of the Assignor, the Assignee and, if required by the Credit Agreement, the
Borrower;
(ii) The Agent shall have executed a copy of this Agreement;
(iii) The Assignor shall have delivered to the Assignee (with a
copy to the Agent) a duly completed letter in the form of Annex A hereto;
(iv) The Assignee shall have confirmed in writing to the Assignor
(with a copy to the Agent) that, on or before the Assignment Effective Date, it
shall have transferred (in accordance with Section 6 hereof) the Purchase Price
to the Assignor. At the time of such confirmation, the Assignee shall be deemed
to have remade the representations and warranties contained in Section 3(b)(i),
(ii) and (iii) hereof on and as of the date of such confirmation;
(v) The Agent shall have received (1) for the Assignee, (A) a new
Working Capital Note in a maximum principal amount equal to the Working Capital
Commitment Amount of the Working Capital Commitment assumed by the Assignee
hereunder, and (B) a new Term Note in a principal amount equal to the amount of
the Term Loan assigned to the Assignee hereunder, in each case payable to the
order to the Assignee and dated the first Borrowing Date (collectively, the
"Assignee Notes"), and (2) for the Assignor, (A) a new Working Capital Note in a
maximum principal amount equal to the Working Capital Commitment Amount of the
Working Capital Commitment retained by the Assignor, and (B) a new Term Note in
a principal amount equal to the amount of the Term Loan retained by the
Assignor, in each case payable to the order of the Assignor and dated the first
Borrowing Date (collectively, the "New Assignor Notes"); and
(vi) All of the conditions set forth in Section 11.7(c) with
respect to this Agreement, and the transactions contemplated hereby, shall have
been fulfilled.
(b) Upon the Assignment Effective Date, (i) the Agent shall record
the assignment contemplated hereby, (ii) the Assignee shall be a Lender, and
(iii) the Assignor, to the extent of the assignment provided for herein, shall
be released from its obligations under the Loan Documents.
(c) The Assignee hereby appoints and authorizes the Agent to take
such action, on and after the Assignment Effective Date, as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto.
(d) From and after the Assignment Effective Date, the Agent shall
make all payments in respect of the interest assigned hereby (including payments
of principal, interest, fees and other amounts) to the Assignee. The Assignor
and the Assignee shall make all appropriate adjustments with respect to amounts
under the Loan Documents which accrued prior to the Assignment Effective Date
and which were paid thereafter, directly between themselves.
(e) Each of the Assignee Notes and the New Assignor Notes shall be
held by the Agent in escrow, pending the effectiveness of Section 2 of this
Agreement and the delivery of, or against receipt of, all of the Assignor's
existing Notes, at which time they shall be returned to the Borrower.
6. Payment Instructions
All payments to be made to the Assignor by the Assignee hereunder
shall be made by wire transfer of immediately available funds to the Assignor
at:
Fleet Bank, N.A.
ABA #: 000000000
International Post Limited
Loan Operations Dept. 838
7. Notices
All notices, requests and demands to or upon the Assignee in
connection with this Agreement and the Loan Documents are to be sent or
delivered to the place set forth adjacent to its name on the signature page(s)
hereof.
8. Miscellaneous
(a) For purposes of this Agreement, all calculations and
determinations with respect to the outstanding principal amount of the
Assignor's Loans, the Assignor's Commitment Amounts and all other similar
calculations and determinations, shall be made and shall be deemed to be made as
of the commencement of business on the date of such calculation or
determination, as the case may be.
(b) Section headings have been inserted herein for convenience only
and shall not be construed to be a part hereof.
(c) This Agreement embodies the entire agreement and understanding
between the Assignor, the Assignee, the Borrower and the Agent with respect to
the subject matter hereof and supersedes all other prior arrangements and
understandings between the Assignor and the Assignee with respect to the subject
matter hereof.
(d) This Agreement may be executed in any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same agreement. It shall not be necessary in making proof
of this agreement to produce or account for more than one counterpart signed by
the party to be charged.
(e) Every provision of this Agreement is intended to be severable,
and if any term or provision hereof shall be invalid, illegal or unenforceable
for any reason, the validity, legality and enforceability of the remaining
provisions hereof shall not be affected or impaired thereby, and any invalidity,
illegality or unenforceability in any jurisdiction shall not affect the
validity, legality or enforceability of any such term or provision in any other
jurisdiction.
(f) This Agreement shall be binding upon and inure to the benefit
of the Assignor and the Assignee and their respective successors and permitted
assigns, except that neither party may assign or transfer any of its rights or
obligations hereunder (i) without the prior written consent of the other party,
and (ii) in contravention of the Credit Agreement.
(g) This Agreement and the rights and obligations of the parties
hereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York without regard to principles of
conflicts of law.
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Agreement to be
duly executed on its behalf.
FLEET BANK, N.A. (formerly known
as NatWest bank N.A.)
By: /s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: Vice President
KEY BANK OF NEW YORK
By: /s/ XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Address for notices:
Key Bank of New York
0 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Consented to and Accepted this
20th day of August, 0000
XXX XXXX XX XXX XXXX, as Agent
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Consented to this 20th day
of August, 1996
INTERNATIONAL POST LIMITED
By: /s/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
ANNEX A TO ASSIGNMENT AND
ACCEPTANCE AGREEMENT
FORM OF LETTER
August 22, 0000
Xxx Xxxx xx Xxx Xxxx
0 Xxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Vice President
Re: Assignment and Acceptance Agreement, dated as of August 22,
1996, by and between Fleet Bank, N.A. (formerly known as NatWest Bank N.A.) and
Key Bank of New York (as the same may be amended, supplemented or otherwise
modified from time to time, the "Agreement")
Ladies and Gentlemen:
This letter is being delivered pursuant to Section 5(a)(iii) of the
Agreement. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the agreement.
The Assignor hereby represents and warrants to the Assignee as
follows:
(a) the aggregate unpaid principal amount of its Working Capital
Loans is $3,840,000, and such Working Capital Loans are composed of the
following Working Capital ABR Advances and Working Capital Eurodollar Advances:
(1) Working Capital ABR Advances: $0, and (2) Working Capital Eurodollar
Advances: (A) $480,000 for 31 days, the last day of which is August 29, 1996,
(B) $2,340,000 for 31 days, the last day of which is September 19, 1996, (C)
$180,000 for 31 days, the last day of which is September 8, 1996, and (D)
$840,000 for 30 days, the last day of which is September 6, 1996,
(b) the aggregate unpaid principal amount of its Acquisition Loans
is $0,
(c) the aggregate unpaid principal amount of its Term Loan is
$10,992,000, and such Term Loan is composed of the following Term Loan ABR
Advances and Term Loan Eurodollar Advances: (1) Term Loan ABR Advances: $12,000,
and (2) Term Loan Eurodollar Advances: $10,980,000 for 31 days, the last day of
which is September 12, 1996,
(d) its Working Capital Commitment Amount is $6,000,000,
(e) its Acquisition Commitment Amount is $0.00,
(f) the amount of its Letter of Credit Participation is
$717,889.40, and
(g) the LC Outstandings are $0.00.
Very truly yours,
FLEET BANK, N.A.
By: /s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: Vice President
cc: Xxxxxx X. Xxxxxx,
Vice President
EXHIBIT 27
