EXHIBIT 10(h)
ASSIGNMENT AND ASSUMPTION AGREEMENT
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This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment and
Assumption") is to be effectuated by the completion and execution of the
Assignment Execution Form attached hereto. A copy of the terms of the Assignment
and Assumption does not need to be physically attached to the Assignment
Execution Form, but rather these terms are incorporated therein by reference.
Terms defined in the Assignment Execution Form (or in the Loan Agreement
described therein) are used herein as therein defined.
The Assignor and the Assignee agree as follows:
1. Assignment; Effect of Certain Dates.
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For value received, without recourse, representation or warranty
(except as expressly set forth herein or in the Loan Agreement) the Assignor
sells and assigns to the Assignee, and the Assignee purchases and assumes from
the Assignor, all of the Assignor's right, title and interest in and to, and all
of the Assignor's obligations with respect to, the applicable Assigned Shares
under the Loan Agreement. The Agent shall confirm by telecopy to the Assignor
and the Assignee that the Agent has received a fully completed Assignment
Execution Form signed by the Assignor and the Assignee on the date that the
Agent sends such confirmations, which shall in no event be later than October
29, 1999 (the "Contract Date"), the obligations of the Assignor and the Assignee
hereunder shall be irrevocable as between themselves. Upon its receipt of a
fully completed Assignment Execution Form signed by the Assignor and the
Assignee, the Agent will send a copy of such Assignment Execution Form to the
Canadian Borrower. No (i) failure of any party to settle on the Settlement Date
any amount owed hereunder, (ii) dispute respecting settlement, or (iii)
bankruptcy, insolvency or other condition whatsoever respecting any Person shall
in any way impair, reduce or otherwise affect the transfer of the Assigned
Shares to the Assignee, and the release of the Assignor, as contemplated by this
Assignment and Assumption.
2. Rights and Obligations of Assignee;
Release of Assignor.
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(a) From and after the Settlement Date, the Assignee shall be entitled to
all rights, powers and privileges of the Assignor and shall perform
all of the duties and obligations of the Assignor under the Loan
Agreement and the other Loan Documents, to the extent of the Assigned
Shares, including without limitation (i) the right to receive all
payments in respect of the Assigned Shares which are unpaid on the
Settlement Date or become payable from and after the Settlement Date,
whether on account of principal, interest, fees, indemnities,
increased costs, additional amounts or otherwise, (ii) the right to
vote and to instruct the Agent under the Loan Agreement to the extent
of the Assigned Shares, (iii) the right to set off and to appropriate
and apply deposits of the Canadian Borrower as set forth in the Loan
Agreement or any other Loan Document, (iv) the right to receive
notices, requests, demands and other communications from the Agent
and/or any
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other party required to give notices, requests, demands or other
communications, (v) the obligation to fund all payments required to be
made by a Lender holding an Assigned Share, and (vi) the obligation to
provide to the Agent any withholding tax forms and other information
prescribed by the applicable taxation authority certifying as to the
Assignee's status for purposes of determining exemption from
withholding taxes with respect to all payments to be made to the
Assignee under the Loan Agreement or such other documents as are
necessary to indicate that all such payments are subject to such rates
at a rate reduced by an applicable tax treaty. From and after the
Settlement Date, the Assignor shall be released from all duties and
obligations under the Loan Agreement and all other Loan Documents to
the extent of the Assigned Shares.
(b) From and after the Settlement Date, Assignee shall be deemed a
"Lender" and a "Canadian Lender" for all purposes in connection with
the Loan Agreement and the other Loan Documents, as such term is
defined in the Loan Agreement, and, subject to further adjustments,
reductions, sales and assignments as provided for or contemplated in
the Loan Agreement, (i) the "Commitment" of Assignee for all purposes
under the Loan Agreement and the other Loan Documents shall be
U.S.$50,000,000 under the Canadian Revolving Credit Facility, and (ii)
the "Participation" of Assignee thereunder shall be equal to 100%,
respectively. Notwithstanding anything to the contrary contained
herein or in the Assignment Execution Form, the assignment provided
for herein shall be effective as of October ______, 1999 , which shall
be deemed the "Settlement Date", as such term is used herein. The
term "Assigned Shares", as used herein and in the Assignment Execution
Form, shall mean the aggregate of the Commitments of Assignor
assigned, as set forth in Section 4 of the Assignment Execution Form.
2. Representations and Warranties of Assignor.
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The Assignor (a) represents and warrants that it is the legal and
beneficial owner of its Assigned Share, and that such Assigned Share is free and
clear of any adverse claim or encumbrances; and (b) except for the
representations and warranties in subclause (a) above and in Section 4 below and
herein makes no representation or warranty and assumes no responsibility
whatsoever regarding the assignment affected hereby, including, without
limitation, with respect to any statements, warranties or representations made
in or in connection with the Loan Agreement or any other Loan Document or the
execution, legality, validity, enforceability, sufficiency or value of the Loan
Agreement or any other Loan Document, or the financial condition of each of the
Canadian Borrower, the Parent, the other Creditors, or any other Person, or the
performance or observance by each of the Canadian Borrower, the Parent, the
other Creditors or any other Party of any of its obligations under the Loan
Agreement or any other Loan Document.
3. Mutual Representations and Warranties.
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The Assignor and the Assignee severally represents and warrants to the
other of them as of the Contract Date and the Settlement Date as follows:
(a) it is duly organized and validly existing and has full power and
authority, and has taken or will take all action necessary, to execute
and deliver the Assignment Execution Form and to fulfil its
obligations under, and to consummate the transactions contemplated by,
this Assignment and Assumption;
(b) the making and performance by it of this Assignment and Assumption
does not and will not violate any law or regulation of the
jurisdiction of its incorporation or any other law or regulation
applicable to it;
(c) the Assignment Execution Form has been duly executed and delivered by
it and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as limited by (i)
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (ii) general equitable principles; and
(d) all approvals, authorizations or other actions by, or filings with,
any Governmental Authority, if any, necessary for the validity or
enforceability of its obligations under this Assignment and Assumption
have been obtained or taken, as the case may be.
4. Representations and Warranties of Assignee.
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The Assignee (i) confirms that it has received a copy of the Loan
Agreement and each of the other Loan Documents, which have in each case been
requested by it, together with copies of any financial statements requested by
it, and that it has, independently and without reliance on the Assignor, the
Agent or any other Person and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption; (ii) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Person 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 Loan
Agreement and any other Loan Documents; (iii) represents that it is eligible to
become an assignee of the Assigned Shares pursuant to the terms, if any, of the
Loan Agreement which limit assignees to persons having specified characteristics
or falling within certain classes; and (iv) appoints the Agent to act in the
capacity set forth in the Loan Agreement.
5. Single Net Payment.
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Unless the Assignor and Assignee agree otherwise, on the Settlement
Date a single, net, final payment shall be made, which shall be in an amount
mutually agreed upon by the
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Assignor and the Assignee, taking into account the then outstanding principal
amount, if any, of the Assigned Shares, any fees payable to or by the Assignee,
and all accrued fees, interest and other amounts payable under the Loan
Agreement or any related documents.
6. Governing Law.
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This assignment and assumption shall be governed by, and shall be
construed and enforced in accordance with, the laws of the Province of Ontario,
without regard to principles of conflicts of laws.
7. Counterparts; Amendments; Binding Effect.
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The Assignment Execution Form may be executed in any number of
counterparts and by different parties in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original, but all such
counterparts together shall constitute one and the same agreement. The terms
hereof may not be amended or modified except in writing executed by the Assignor
and the Assignee. Any change in the Settlement Date to an earlier date than that
specified on the Assignment Execution Form shall require the consent of the
Agent. The terms hereof shall bind and inure to the benefit of and be
enforceable by the parties executing (or deemed to have consented to) the
Assignment Execution Form and their respective successors and permitted assigns.
8 Effectiveness of Notices.
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Notices required to be given and other documents required to be
delivered pursuant to the terms hereof shall be deemed given or delivered when
actually received unless sent by facsimile transmission, in which case such
notice or other document shall be deemed given or delivered when sent (as
established by sender's facsimile transmission machine printout or similar
mechanical record).
9 Quebec Addendum.
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Addendum 1 to Exhibit "O" is hereby incorporated herein.
ASSIGNMENT EXECUTION FORM
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This Assignment Execution Form incorporates by reference all of the
terms and conditions of the Assignment and Assumption Agreement which is
attached hereto. By executing this Assignment Execution Form, and pursuant to
the terms of such Assignment and Assumption Agreement, the Assignor sells and
assigns to the Assignee, and the Assignee purchases and assumes from the
Assignor, in each case without recourse, representation or warranty (except as
set forth in the Assignment and Assumption Agreement), all of the Assignor's
right, title and interest in and to, and all of the Assignor's obligations with
respect to, the Assigned Shares (as calculated herein), and the Assignor are
released from such obligations.
1 Loan Agreement:
Title: Loan Agreement dated as of December 22, 1997
among InterTAN Canada Ltd., as Canadian
Borrower, Inter TAN U.K. Limited, as U.K.
Borrower, InterTAN, Inc., as a guarantor, Bank
of America Canada, as Agent and Lender and
Bank of America N.T. & S.A. (London, England
Branch Office), as a U.K. Lender, as amended
by Rectification and Amendment No. 1 dated
February 24, 1998, Second Amendment to Loan
Agreement dated as of January, 1999, Third
Amendment to Loan Agreement dated as of April
12, 1999 and Fourth Amendment to Loan
Agreement dated as of July 31, 1999.
Date: December 22, 1997
Name of Borrower(s): InterTAN Canada Ltd.
Name of Agent: Bank of America Canada
2 Name of Assignor: Congress Financial Corporation
(The Agent must enter the date of delivery to it of this Assignment
Execution Form, executed by Assignor and Assignee, and MUST INITIAL AND
RETURN A COPY OF THIS PAGE TO Assignor.)
3 Name of Assignee: Bank of America Canada
4 Assigned Shares:
(a) Total Loan Agreement Commitment for All U.S.: $50,000,000
Lenders as of Contract Date
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(b) Assigned Share of Assignor U.S.: $16,666,666.66
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(c) Percentage Amount of Assigned Share of 33%
Assignor of Total Commitments
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(d) Total Loans Outstanding for All Lenders as U.S.: $nil
of Contract Date (exclusive of Letters of
Credit)
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(e) Outstanding Amount of Assigned Loans U.S.: $nil
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5 Sales Price of Assigned Shares: See Schedule I (Schedule I may be omitted
when form is sent to the Agent).
Consent to/Acknowledged by as of October 28, 1999.
BANK OF AMERICA CANADA Assignor)
CONGRESS FINANCIAL CORPORATION
By: /s/Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxx
Name: Xxxxxx Xxxxxx Name: Xxxxx Xxxxx
Title: Vice-President Title: Vice President
(Assignee)
BANK OF AMERICA CANADA
By: /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice-President
The undersigned hereby intervene in the foregoing Assignment and Assumption
Agreement and unconditionally acquiesces in the assignment referred to therein
and agrees to pay the "Termination Fee" referred to in Schedule I.
INTERTAN CANADA LTD.
By: /s/Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
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Schedule I
Attached to Assignment
Execution Form executed
by Congress Financial Corporation, as Assignor
and Bank of America Canada, as Assignee
Principal Amount to be paid for Assigned Shares U.S.: $0
Canadian Unused Line Fee U.S.: $
L/C Fee U.S.: $
Termination Fee (to be paid by Canadian Borrower) U.S.: $
Net Payment due by Assignee U.S.: $
