Exhibit 2
ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE ("Agreement") dated as of August 8,
2001, is made with reference to that certain Second Amended and Restated
Loan Agreement dated as of November 1, 2000, as amended by the First Waiver
and Amendment to the Loan Agreement, dated as of January 31, 2001, the
Second Waiver and Amendment to the Loan Agreement, dated as of June 1,
2001, and the Debt Affirmation and Release Agreement (as defined below) (as
so amended, the "Loan Agreement") by and among Day Runner, Inc., a Delaware
corporation ("Day Runner"), Day Runner UK plc (now known as Day Runner UK
Limited), a company incorporated with limited liability under the laws of
England and Wales and formerly a wholly-owned indirect subsidiary of Day
Runner ("Bidco"), Filofax Limited, a company incorporated with limited
liability under the laws of England and Wales and formerly a wholly-owned
indirect subsidiary of Day Runner ("Filofax"; Day Runner, Bidco and Filofax
being referred to collectively herein as, the "Borrowers"), the Lenders
party thereto and each lender which may thereafter become a party thereto
pursuant to Section 12.8 of the Loan Agreement (the "Lenders") and ▇▇▇▇▇
Fargo Bank, a National Association, as Administrative Agent (in such
capacity, the "Administrative Agent"), and is entered into between the
"Assignor" described below, in its capacity as a Lender under the Loan
Agreement, and the "Assignee" described below.
Assignor and Assignee hereby represent, warrant and agree for
valuable consideration, the receipt of which is hereby acknowledged, as
follows:
1. Definitions. Capitalized terms defined in the Loan Agreement
are used herein with the meanings set forth for such terms in the Loan
Agreement. As used in this Agreement, the following capitalized terms shall
have the meanings set forth below:
"Assignee" means KAYSUN Holdings LLC.
"Assigned Pro Rata Share" means 50% of (a) the Revolving
Commitment of the Lenders under the Loan Agreement, (b) the outstanding
Revolving Loan made to Day Runner under the Loan Agreement, (c) the
outstanding Term Loan A made to Day Runner under the Loan Agreement, (d)
the outstanding Term Loan B made to Day Runner under the Loan Agreement,
(e) the outstanding Convertible Loan made to Day Runner under the Loan
Agreement, (f) the PIK Interest Notes (TLB) outstanding as of the Effective
Date of this Agreement and (g) the PIK Interest Notes (CL) outstanding as
of the Effective Date of this Agreement.
"Assignor" means Day Holdings LLC.
"Day Runner Loans" shall have the meaning ascribed to such term
in the Debt Affirmation and Release Agreement.
"Debt Affirmation and Release Agreement" shall mean the agreement
entered into as of April 25, 2001, by and among Day Runner, Bidco and
Filofax, as Borrowers, Day Runner Direct, Inc., Filofax, Inc., DRI
International Holdings, Inc., Filofax Group Limited, Inc., DR UK Holdings
Limited, Topps of England Limited, the Lenders and the Administrative
Agent.
"Effective Date" means August 8, 2001, the effective date of this
Agreement determined in accordance with Section 12.8 of the Loan Agreement.
2. Representations and Warranties of the Assignor. The Assignor
represents and warrants to the Assignee as follows:
(a) As of the date hereof, the Pro Rata Share of the Assignor is
50% of (i) the Revolving Commitment under the Loan Agreement, (ii) the
Revolving Loan made to Day Runner under the Loan Agreement, (iii) the
outstanding Term Loan A made to Day Runner under the Loan Agreement, (iv)
the outstanding Term Loan B made to Day Runner under the Loan Agreement,
(v) the outstanding Convertible Loan made to Day Runner under the Loan
Agreement, (vi) the outstanding PIK Interest Notes (TLB), and (vii) the
outstanding the PIK Interest Notes (CL). The Assignor is the legal and
beneficial owner of the Assigned Pro Rata Share, has made no prior
assignment, participation, pledge or disposition of the Assigned Pro Rata
Share and the Assigned Pro Rata Share constitutes the Assignor's entire Pro
Rata Share as of the date hereof and is free and clear of any adverse
claim;
(b) The Assignor has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement and any and all
other documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no
governmental authorizations or other authorizations are required in
connection therewith;
(c) This Agreement constitutes the legal, valid and binding
obligation of the Assignor; and
(d) The Assignor makes no representation or warranty and assumes
no responsibility with respect to the financial condition of Borrowers or
the Subsidiary Guarantors or the performance by Borrowers of the
Obligations, and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan
Agreement or the execution, legality, validity, enforceability, genuineness
or sufficiency of the Loan Agreement or any Loan Document other than as
expressly set forth above.
3. Representations, Warranties and Covenants of the Assignee. The
Assignee hereby represents and warrants to the Assignor as follows:
(a) The Assignee has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, and any and all
other documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no
governmental authorizations or other authorizations are required in
connection therewith;
(b) This Agreement constitutes the legal, valid and binding
obligation of the Assignee;
(c) The Assignee has independently and without reliance upon the
Assignor and based on such documents and information as the Assignee has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. The Assignee will, independently and without reliance upon
any Lender, and based upon 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;
(d) The Assignee has received copies of the Loan Agreement and
such of the Loan Documents delivered pursuant to Section 9.1 of the Loan
Agreement as it has requested, together with copies of the most recent
financial statements delivered pursuant to Section 8.1 of the Loan
Agreement;
(e) The Assignee will perform in accordance with their respective
terms all of the obligations which by the terms of the Loan Agreement are
required to be performed by it as a Lender; and
(f) The Assignee hereby makes each and every representation and
warranty contained in Section 4.9 of the Loan Agreement (pertaining to the
Convertible Notes and Conversion Stock).
4. Assignment. On the terms set forth herein, the Assignor, as of
the Effective Date, hereby irrevocably sells, assigns and transfers,
without recourse, to the Assignee all of the rights and obligations of the
Assignor under the Loan Agreement, the other Loan Documents (including,
without limitation, the Day Runner Loans, the Registration Rights Agreement
and the Shareholders Agreement, it being understood that the Assignor has
no interests in the Foreign Currency Loan), the Assignor's Notes to the
extent of the Assigned Pro Rata Share, including the related Conversion
Stock, and the Assignee irrevocably accepts such assignment of rights and
assumes such obligations from the Assignor on such terms and effective as
of the Effective Date. As of the Effective Date, the Assignee shall have
the rights and obligations of a "Lender" under the Loan Documents (and a
"Shareholder" under the Shareholders Agreement and the Registration Rights
Agreement), except to the extent of any arrangements with respect to
payments referred to in Section 5 hereof.
5. Payment. The assignment to the Assignee pursuant to this
Agreement shall be deemed a capital contribution by the Assignor to the
Assignee in accordance with Section 4 of that certain Limited Liability
Company Agreement dated as of August 8, 2001 (the "Operating Agreement") by
and among Assignor and Osmond Acquisition Company, LLC, and shall
constitute the Initial Contribution (as such term is defined in the
Operating Agreement) of the Assignor pursuant to Section 4.2 of the
Operating Agreement.
The Assignor and the Assignee hereby agree that if either receives
any payment of interest, principal, fees or any other amount under the Loan
Agreement, the Notes or any other Loan Documents which is for the account
of the other, it shall hold the same in trust for such party to the extent
of such party's interest therein and shall promptly pay the same to such
party.
6. Principal, Interest, Fees, etc. Any principal that would be
payable and any interest, fees and other amounts that would accrue from and
after the Effective Date to or for the account of the Assignor pursuant to
the Loan Agreement and its Notes shall be payable to the account of the
Assignor and the Assignee, in accordance with their respective interests as
adjusted pursuant to this Agreement.
7. Notes. The Assignor and the Assignee shall make appropriate
arrangements with Day Runner concurrently with the execution and delivery
hereof so that replacement Revolving Loan Notes, replacement Term Loan A
Notes, replacement Term Loan B Notes, replacement Convertible Notes,
replacement PIK Interest Notes (TLB), and replacement PIK Interest Notes
(CL), as applicable, are issued to the Assignor and the Assignee,
respectively, in principal amounts reflecting their respective Pro Rate
Shares of the Revolving Commitment and their outstanding Revolving Loans,
Term Loan A, Term Loan B, Convertible Loan, PIK Interest Note (TLB) and PIK
Interest Note (CL) (as adjusted pursuant to this Agreement).
8. Further Assurances. The Assignor and the Assignee further agree
to execute and deliver such other instruments, and take such other action,
as either party may reasonably request in connection with the transactions
contemplated by this Agreement, and the Assignor specifically agrees to
cause the delivery of (i) two original counterparts of this Agreement and
(ii) to the extent required, the Request for Registration to the
Administrative Agent for the purpose of registration of the Assignee as a
"Lender" pursuant to Section 12.8 of the Loan Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND PERFORMED IN NEW YORK.
10. Certain Agreements. By its signature hereto, the Assignee
agrees and acknowledges that it will be a party to, and will be bound by,
the Registration Rights Agreement and the Shareholders Agreement, as
defined in the Loan Agreement.
11. Notices. All communications among the parties or notices in
connection herewith shall be in writing, hand delivered or sent by U.S.
registered mail, postage prepaid, or by telecopy, addressed to the
appropriate party at its address set forth on the signature pages hereof.
All such communications and notices shall be effective upon receipt.
12. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns.
13. Interpretation. The headings of the various sections hereof
are for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
14. Counterpart. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officials, officers or agents
thereunto duly authorized as of the date first above written.
ASSIGNOR:
DAY HOLDINGS LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital
Advisors, L.P., its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Investment
Management, Inc., its General
Partner
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: General Counsel and Secretary
Address:
Telephone:
Facsimile:
ASSIGNEE:
KAYSUN HOLDINGS LLC
By: Osmond Acquisition Company,
LLC, its Manager
By: Sunrise Capital Partners, L.P.,
its Manager
By: Sunrise Advisors, LLC, its
General Partner
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
By: Day Holdings LLC, its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Advisors,
L.P., its Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Investment
Management, Inc., its General Partner
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: General Counsel and Secretary
Address:
Telephone:
Facsimile: