Exhibit 10.11
ASSIGNMENT AND ASSUMPTION
AGREEMENT
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THIS ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of November 20, 1998
("Assignment and Assumption Agreement") is by and among Bagcraft Corporation of
America, a Delaware corporation ("Seller"), Packaging Dynamics, LLC, a Delaware
limited liability corporation ("Company"), and Bagcraft Acquisition, LLC
("Buyer"), a Delaware limited liability corporation and a wholly owned
subsidiary of the Company.
RECITALS
A. The parties to this Assignment and Assumption Agreement, along with
certain other parties, have entered into that certain Assets Purchase Agreement
dated as of August 26, 1998, as amended by Amendment No. 1 to Assets Purchase
Agreement dated as of September 30, 1998, Amendment No. 2 to the Assets Purchase
Agreement, dated as of October 26, 1998 and Amendment No. 3 to the Assets
Purchase Agreement, dated as of November 16, 1998 (the "Purchase Agreements").
B. Pursuant to the Purchase Agreement, substantially all of the assets of
Seller are being acquired by Buyer.
C. Seller is currently indebted to the City of ▇▇▇▇▇▇ Springs, Kansas
pursuant to various promissory notes and Seller is a party to various agreements
with the City of ▇▇▇▇▇▇ Springs, Kansas which relate to such notes (which notes
and agreements are described on Exhibit "A" attached hereto and incorporated by
reference herein and which are collectively referred to herein as the "▇▇▇▇▇▇
Springs Debt").
D. Seller desires to assign to Company all of its rights in connection
with the ▇▇▇▇▇▇ Springs Debt and to delegate all of its duties and obligations
relating to the ▇▇▇▇▇▇ Springs Debt and Company desires to assume all duties and
obligations of Seller in connection with the ▇▇▇▇▇▇ Springs Debt, subject to the
terms of this Assignment and Assumption Agreement.
E. This Assignment and Assumption Agreement is made pursuant to Section
3.1(b) of the Purchase Agreement.
NOW, THEREFORE, to induce Buyer and Seller to consummate the transactions
contemplated by the Purchase Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller hereby assigns to Company and Company, for itself, its successors and
assigns, from and after the date hereof, hereby assumes and agrees with Seller
as follows:
1. Effective as of the date hereof, Seller hereby assigns to the Company,
all of Seller's rights in connection with the ▇▇▇▇▇▇ Springs Debt and Seller
further delegates to Company all of Seller's obligations, liabilities, duties
and responsibilities in connection with the ▇▇▇▇▇▇ Springs Debt. Seller hereby
represents and warrants to the Buyer that (i) the aggregate principal amount
outstanding under and with respect to the ▇▇▇▇▇▇ Springs Debt is $6,833,333.20
and (ii) all agreements, instruments and other documents evidencing the ▇▇▇▇▇▇
Springs Debt (including all amendments and waivers thereto) are listed on
Exhibit "A" hereto.
2. Effective as of the date hereof, upon the terms and conditions herein
contained, the Company hereby absolutely and irrevocably (a) accepts and assumes
such delegation of the ▇▇▇▇▇▇ Springs Debt, (b) assumes and shall be fully
liable for payment and performance with respect to the ▇▇▇▇▇▇ Springs Debt, and
(c) accepts the assignment of all right, title and interest of Seller under and
with respect to the ▇▇▇▇▇▇ Springs Debt.
3. The Company, for itself and its successors and assigns, from and after
the date hereof, shall timely pay, perform and discharge all obligations first
arising after the date hereof, under or in connection with the ▇▇▇▇▇▇ Springs
Debt and, in connection therewith, agrees to indemnify, defend and hold harmless
Seller and its successors and assigns from and against any and all damages,
pursuant to and in accordance with the Purchase Agreement, arising out of the
non-performance by Company of any such obligation with respect to the ▇▇▇▇▇▇
Springs Debt to be performed by Company or otherwise resulting from the failure
of the Company to fulfill its obligations under this Assignment and Assumption
Agreement. The Seller, for itself and its successors and assigns, shall
indemnify, defend and hold harmless the Company and the Buyer, and their
respective successors and assigns, from and against any and all damages arising
out of the non-performance by the Seller of any obligation with respect to the
▇▇▇▇▇▇ Springs Debt, accrued or to be performed on or prior to the date hereof,
including the obligation to pay principal and interest accrued through the date
hereof.
4. This Assignment and Assumption Agreement is limited solely to the
▇▇▇▇▇▇ Springs Debt and neither Company nor Buyer shall be deemed to have
assumed or agreed to pay or discharge or be in any way liable for any other
liabilities of Seller, pursuant to this Assignment and Assumption Agreement.
5. This Assignment and Assumption Agreement will be enforceable against
the successors and assigns of Company and the Seller, and will inure to the
benefit of the successors and assigns of Seller.
6. For the consideration aforesaid, each party hereto, for itself and its
successors and assigns, has covenanted, and by this Assignment and Assumption
Agreement, does covenant with the other party hereto, its successors and
assigns, that each party hereto and its successors and assigns, will do, execute
and deliver, or cause to be done, executed and delivered, all such further acts
and instruments which the other party hereto may reasonably request in order to
more fully effectuate the assumption of the ▇▇▇▇▇▇ Springs Debt provided for in
this Assignment and Assumption Agreement.
7. The validity, interpretation, construction and performance of this
Assignment and Assumption Agreement shall be governed by the internal
substantive laws of the State of Kansas, without reference to the choice of law
provisions of Kansas law.
8. This Assignment and Assumption Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be duly executed by their authorized representatives as
of the date and year first above written.
BAGCRAFT CORPORATION OF AMERICA
By /s/ ▇▇▇▇▇▇▇ ▇. Arduino
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Title Vice President, CFO
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PACKAGING DYNAMICS, LLC
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
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Title VP
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BAGCRAFT ACQUISITION, LLC
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
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Title VP
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CONSENT OF THE CITY OF ▇▇▇▇▇▇ SPRINGS AND KDOCH
In consideration of the execution of that Inter-Creditor Agreement of even
date herewith between the City of ▇▇▇▇▇▇ Springs, the Kansas Department of
Commerce and Housing ("KDOHC"), Company, Buyer and NationsBank, N.A. and in
consideration of that certain Guaranty of the ▇▇▇▇▇▇ Spring Debt of even date
herewith, executed by Buyer in favor of the City of ▇▇▇▇▇▇ Springs, the City of
▇▇▇▇▇▇ Springs and KDOCH hereby consent to the foregoing Assignment and
Assumption Agreement and to the transfer of the assets by Bagcraft Corporation
of America to Buyer pursuant to the Purchase Agreement.
In witness whereof, the City of ▇▇▇▇▇▇ Springs and KDOCH have each caused
this Consent to be executed by its duly authorized representative as of this
20th day of November, 1998.
CITY OF ▇▇▇▇▇▇ SPRINGS
By [signature illegible]
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Title Mayor
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KANSAS DEPARTMENT OF COMMERCE
AND HOUSING
By /s/ ▇▇▇▇ ▇▇▇▇
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Title Community Development Director
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EXHIBIT "A"
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to
Assignment and Assumption Agreement
That certain Loan Agreement between Bagcraft Corporation of America and the
City of ▇▇▇▇▇▇ Springs, Kansas dated December 27, 1993, pursuant to which the
City of ▇▇▇▇▇▇ Springs agreed to loan Bagcraft Corporation of America
$5,000,000.
That certain subordinated Promissory Note dated December 27, 1993, in the
original principal amount of $5,000,000, made by Bagcraft Corporation of
America, as Debtor, in favor of the City of ▇▇▇▇▇▇ Springs, Kansas.
That certain Security Agreement dated December 27, 1993, made by Bag craft
Corporation of America, as Debtor, in favor of the City of ▇▇▇▇▇▇ Springs,
Kansas, as Secured Party.
That certain Construction Loan Commitment dated February 15, 1994, by the
City of ▇▇▇▇▇▇ Springs, Kansas, as Lender.
That certain Construction Loan Commitment dated February 15, 1994, between
the City of ▇▇▇▇▇▇ Springs, Kansas, as Lender, and Bagcraft Corporation of
America, as Borrower, pursuant to which the City of ▇▇▇▇▇▇ Springs, Kansas
agreed to loan to Bagcraft Corporation of America up to $7,000,000.
That certain Promissory Note dated February 15, 1994, in the original
principal amount of $7,000,000 made by Bagcraft Corporation of America, as
Borrower, in favor of the City of ▇▇▇▇▇▇ Springs, Kansas.
That certain First Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing dated February 15, 1994, made by Bagcraft
Corporation of America, as Grantor, in favor of the City of ▇▇▇▇▇▇ Springs,
Kansas, as Mortgagee.
That certain Security Agreement dated February 15, 1994, made by Bagcraft
Corporation of America, as Debtor, in favor of the City of ▇▇▇▇▇▇ Springs,
Kansas, as Secured Party.
That certain Inter-Creditor Agreement dated as of February 15, 1994, by and
among General Electric Capital Corporation, the City of ▇▇▇▇▇▇ Springs, Kansas,
Bagcraft Corporation of America and the Kansas Department of Commerce and
Housing.
That certain Collateral Assignment of Interest and Licenses, Agreements and
Plans, dated February 15, 1994, made by Bagcraft Corporation of America as
Assignor in favor of the City of ▇▇▇▇▇▇ Springs, Kansas, as Assignee.
Any and all other documents executed by the Bagcraft Corporation of America
in favor of either the City of ▇▇▇▇▇▇ Springs, Kansas or the Kansas Department
of Commerce and Housing in connection with any of the foregoing.
All financing statements executed in connection with any of the foregoing
documents.