ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
(Form)
THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT ("Assignment") is made
as of the ___ day of _____________, 200__, by and between
________________________________ (hereinafter referred to as "Assignor"), party
of the first part, and ____________________________ (hereinafter referred to as
"Assignee"), party of the second part.
R_E_C_I_T_A_L_S:
A> Reference is made to that certain Credit Agreement, dated as of
February 20, 2004 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Golden Road Motor Inn, Inc., a
Nevada corporation (the "Borrower"), Monarch Casino & Resort, Inc., a Nevada
corporation (the "Guarantor"), the Lenders therein named (herein together with
their respective successors and assigns collectively the "Lenders"), Xxxxx
Fargo Bank, National Association, as the swingline lender (herein in such
capacity, together with its successors and assigns, the "Swingline Lender"),
Xxxxx Fargo Bank, National Association, as the issuer of letters of credit
thereunder (herein in such capacity, together with their successors and
assigns, the "L/C Issuer") and Xxxxx Fargo Bank, National Association, as
administrative and collateral agent for the Lenders, Swingline Lender and L/C
Issuer (herein, in such capacity, called the "Agent Bank" and, together with
the Lenders, Swingline Lender and L/C Issuer, collectively referred to as the
"Banks").
B. In this Assignment, all capitalized words and terms not otherwise
defined herein shall have the respective meanings to be construed herein as
provided in Section 1.01 of the Credit Agreement and any reference to a
provision of the Credit Agreement shall be deemed to incorporate such provision
as a part hereof in the same manner and with the same effect as if the same
were fully set forth herein.
C. As of the date of this Assignment and as of the Effective Date, as
hereinafter defined, but before giving effect to the assignment contemplated
hereby, Assignor is and shall be the owner and holder of a ___________ percent
(____%) Syndication Interest in the Credit Facility.
D. As of the Effective Date, as hereinafter defined, Assignor desires to
assign to Assignee and Assignee desires to assume a ____________ percent
(____%) Syndication Interest in the Credit Facility.
E. This Assignment is made, executed and delivered pursuant to Section
10.10 of the Credit Agreement and shall also constitute notice to Borrower and
Agent Bank of the assignment and delegation to Assignee of the Syndication
Interest particularly described hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do agree as follows:
1. As of the Effective Date, as hereinafter defined, Assignor does hereby
transfer, convey, set over and assign unto Assignee, without recourse, warranty
or representation other than as set forth in Paragraph 5 hereinbelow (the
"Assigned Interest"), $________________ of the outstanding unpaid
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balance of the Credit Facility, representing an undivided _______________
percent (_____%) Syndication Interest.
2. From and after the Effective Date, Assignee shall and does hereby
assume and agree to perform all of the promises and covenants of Assignor as to
the Assigned Interest particularly described in Paragraph 1 hereinabove arising
or performable from and after the Effective Date and further agrees to
indemnify and hold Assignor harmless from any and all liabilities, damages,
costs or expenses which Assignor may incur by reason of the failure of Assignee
to fund or perform any obligation of Assignor as to the Assigned Interest
assigned hereunder arising or performable from and after the Effective Date at
the time and in the manner set forth in the Loan Documents, and does further
agree to assume and be bound by each and every term, condition, provision and
covenant contained in the Credit Agreement and each of the Loan Documents,
effective as of the Effective Date, to the same extent and manner as if
Assignee had originally been named in the Credit Agreement as a Lender holding
the Assigned Interest therein and Assignee shall be deemed to be a Lender party
to the Credit Agreement for all purposes thereof.
3. The "Effective Date" as used herein shall mean ___________, 200__,
provided that each of the following conditions precedent have been satisfied on
or before the Effective Date: (a) Assignor and Assignee have executed this
Assignment, (b) Borrower and Agent Bank have joined in the execution of this
Assignment for the purpose of evidencing their respective acknowledgment and
consent to the assignment by Assignor of the Assigned Interest in favor of
Assignee, (c) Assignee has delivered to Assignor _______________________
Dollars ($________________) in immediately available funds, and (d) Assignee
has delivered to Agent Bank in immediately available funds the Three Thousand
Five Hundred Dollar ($3,500.00) assignment fee in accordance with Section
10.10b of the Credit Agreement. Interest accrued but remaining unpaid on the
portion of the outstanding principal balance under the Credit Facility which is
allocable to the Assigned Interest assigned hereby and is owing to Assignor as
of the Effective Date shall be prorated to the Effective Date and disbursed by
Agent Bank to Assignor and Assignee, as applicable, from the next payment of
accrued interest under the Revolving Credit Note.
4. On the Effective Date, the respective aggregate Syndication Interests
of the Lenders in the Credit Facility shall be as set forth on the Schedule of
Lenders' Proportions in Credit Facility, a copy of which is marked "Schedule
2.01(a)" affixed hereto and by this reference incorporated herein and made a
part hereof, which shall restate the Schedule of Lenders' Proportions in Credit
Facility attached as Schedule 2.01(a) to the Credit Agreement, and all previous
amendments and reinstatements thereof, for the purpose of showing the Assigned
Interest as a decrease in Assignor's applicable Syndication Interest and
evidencing Assignee's applicable Syndication Interest in the Credit Facility.
5. Assignor represents and warrants that:
a. (i) it is the owner of the Assigned Interest being assigned and
transferred hereunder free and clear of any liens or other charges of any kind
created by or through Assignor, (ii) it is duly organized and existing and has
the full power and authority to take, and has taken, all action necessary to
execute and deliver this Assignment and any other documents required or
permitted to be executed or delivered by it in connection with this Assignment
and to fulfill its obligations hereunder, (iii) no notices to, or consents,
authorizations or approvals of, any Person are required
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(other than any already given or hereby obtained) for its due execution,
delivery and performance of this Assignment, and apart from any agreements or
undertaking or filings required by the Credit Agreement, no further action by,
or notice to, or filing with, any Person is required of it for such execution,
delivery or performance; and (iv) this Assignment has been duly executed and
delivered by it and constitutes its legal, valid and binding obligations,
enforceable against it in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
b. Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Loan Documents or any other instrument or document furnished
pursuant thereto. Assignor makes no representation or warranty in connection
with, and assumes no responsibility with respect to, the solvency, financial
condition or statements of the Borrower or the performance or observance by the
Borrower of any of its respective obligations under the Credit Agreement, the
Loan Documents or any other instrument or document furnished in connection
therewith.
6. Assignee represents and warrants that:
a. (i) it is duly organized and existing and it has full power and
authority to take, and has taken, all action necessary to execute and deliver
this Assignment and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment, and to fulfill its
obligations hereunder; (ii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Assignment;
and apart from any agreements or undertakings or filings required by the Credit
Agreement, no further action by, or notice to, or filing with, any person is
required of it for such execution, delivery or performance; (iii) this
Assignment has been fully executed and delivered by it and constitutes its
legal, valid and binding obligations, enforceable against it in accordance with
the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and (iv) it is
eligible under the Credit Agreement to be an assignee in accordance with the
terms hereof.
b. (i) under applicable law and treaties no tax will be required to be
withheld by Borrower or any Bank with respect to any payments to be made to the
Assignee under the Credit Agreement, (ii) it agrees to furnish (if it is
organized under the laws of any jurisdiction other than the United States or
any State thereof) to the Agent Bank and the Borrower prior to the time that
the Agent Bank or Borrower are required to make any payment of principal,
interest or fees hereunder, duplicate executed original of either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service From 1001 (wherein
the Assignee claims entitlement to the benefits of a tax treaty that provides
for a complete exemption from U.S. federal income withholding tax on all
payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements
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in accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the Assignee, and (iii) it agrees to comply with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
c. As of the Effective Date, no amounts are payable by Borrower to
Assignee under Sections 2.12 or 2.13 of the Credit Agreement, other than to the
extent amounts thereunder are payable to all of the Lenders.
7. The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Loan Documents, together with copies of the most recent
financial statements referred to in Section 5.08 of the Credit Agreement, and
such other documents and information as it has deemed appropriate to make its
own credit and legal analysis and decision to enter into this Assignment; (b)
agrees that it will, independently and without reliance upon the Assignor, the
Agent Bank or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit and
legal decisions in taking or not taking action under the Credit Agreement; and
(c) appoints and authorizes the Agent Bank to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Agent Bank by the terms thereof, together with such powers as are
reasonably incidental thereto.
8. Assignee hereby advises Borrower and Agent Bank of the following
administrative details with respect to the Assigned Interest:
a. Address for notices:
____________________________
____________________________
____________________________
____________________________
b. Telephone:
____________________________
c. Facsimile:
____________________________
d. Payment (wire) instructions:
____________________________
____________________________
____________________________
9. Borrower and Agent Bank join in the execution of this Assignment for
the purpose of evidencing and acknowledging their respective consents to the
transfer by Assignor to Assignee of the Assigned Interest and agree to
recognize Assignee as a Lender under the Credit Agreement and each of the Loan
Documents to the same extent as if Assignee were originally named as a Lender
therein as to the Assigned Interest. Borrower and Agent Bank further agree
that as of the Effective Date and consummation of each of the items specified
in Paragraph 3 hereinabove, Assignor shall be and is hereby fully released and
discharged from all liabilities, responsibilities and obligations with respect
to the Assigned Interest hereby assigned arising or performable on and after
the Effective Date.
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10. Any interest, commissions, fees and other payments accrued to but
excluding the Effective Date with respect to the Assigned Interest hereby
assigned shall be for the account of Assignor. Any interest, fees and other
payments accrued on and after the Effective Date with respect to the Assigned
Interest hereby assigned shall be for the account of the Assignee. Each of the
Assignor and the Assignee agree that it will hold in trust for the other party
any interest and other amounts which it may receive to which the other party is
entitled pursuant to the preceding sentence and pay to the other party any such
amounts which it may receive promptly upon receipt.
11. This Assignment may be signed in any number of counterparts, and
signatures to all counterparts thereto, when assembled together, shall
constitute signatures to this entire agreement with the same effect as if all
signatures were on the same document.
12. This Assignment shall, in all respects, be governed by the laws of the
State of Nevada and if any action is taken to enforce the terms hereof, such
action shall be commenced and maintained within the State of Nevada.
13. Any amendment or waiver of any provision of this Assignment shall be
in writing and signed by the parties hereto. No failure or delay by either
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof and any waiver of any breach of the provisions of
this Assignment shall be without prejudice to any rights with respect to any
other or further breach thereof.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing
Assignment as of the day and year first above written.
ASSIGNOR: ASSIGNEE:
________________________ ________________________
By _____________________ By _____________________
Name____________________ Name____________________
Title___________________ Title___________________
Borrower and Agent Bank hereby join in the execution of this Assignment
for the purpose of evidencing and acknowledging their respective consent as set
forth in Paragraph 9 above.
DATED as of the ____ day of _______________, 200__.
BORROWER: AGENT BANK:
GOLDEN ROAD MOTOR INN, INC., XXXXX FARGO BANK,
a Nevada corporation National Association
By_________________________ By_________________________
Name_______________________ Name_______________________
Title______________________ Title______________________
