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EXHIBIT 10.32
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made as of
this 3rd day of April 1998 by and among The Delicious Frookie Company, Inc., a
Delaware corporation ("Delicious"), and Xxxxx Xxxxxxx, an individual and
resident of the State of California ("Xxxxxxx"), and American Pacific Financial
Corporation, a California corporation ("APFC") (Xxxxxxx and APFC are
collectively referred to herein as the "Assignees").
WHEREAS, Delicious has executed and delivered to Xxxxxxx Foods, L.L.C., a
Delaware limited liability company ("Xxxxxxx"), a certain Promissory Note in the
original principal amount of $1,500,000 (the "Purchase Note"), a copy of which
is attached hereto as Exhibit A;
WHEREAS, the Purchase Note was made by Delicious pursuant to that certain
Asset Purchase Agreement dated as of April 3, 1998 between Delicious and Xxxxxxx
(the "Purchase Agreement"); and
WHEREAS, Delicious has secured its obligations under the Purchase Note
pursuant to a certain Security Agreement dated as of April 3, 1998 made by
Delicious in favor of Xxxxxxx (the "Security Agreement") and that certain
Trademark Security Agreement dated as of April 3, 1998 made by Delicious in
favor of Xxxxxxx (the "Trademark Security Agreement").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption of Purchase Note. Delicious does hereby sell,
assign, transfer and set over to Xxxxxxx and APFC the Purchase Note and each of
Xxxxxxx and APFC hereby jointly and severally assumes and hereby agrees to pay,
defend, discharge all of the obligations of Delicious under the Purchase Note,
including, without limitation, the timely repayment of principal and interest
evidenced thereby. Notwithstanding such assignment and assumption, Delicious
does hereby unconditionally guarantee for the benefit of Xxxxxxx the full and
prompt payment when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all of the principal,
interest, and other obligations evidenced by the Purchase Note. Delicious hereby
agrees that the foregoing guaranty is an absolute guaranty of payment and is not
a guaranty of collection. Each of Delicious, Xxxxxxx, and APFC hereby waives all
rights of setoff and counterclaims which may arise under this Agreement, the
Purchase Agreement, the Purchase Note, or otherwise and all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor and notices of acceptance
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of the Purchase Note, and all other demands whatsoever, and covenants that its
respective obligations under this Agreement and the Purchase Note will not be
discharged except by complete payment of the Purchase Note in full in cash.
2. Reaffirmation of Security Agreement. Notwithstanding the execution and
delivery of this Agreement and the assignment and assumption of the Purchase
Note pursuant to the terms hereof, Delicious hereby (i) reaffirms all of its
obligations under, and grant of security interest to Xxxxxxx pursuant to the
Security Agreement and the Trademark Security Agreement, and (ii) acknowledges
and agrees that each of the Security Agreement and the Trademark Security
Agreement remains in full force and effect (including without limitation, with
respect to the obligations under the Purchase Note) and that each of the
Security Agreement and the Trademark Security Agreement is hereby ratified and
confirmed.
3. Joint and Several Obligations. The obligations of each of the Assignees
hereunder shall be joint and several.
4. Counterparts. This Agreement may be executed in one or more
counterparts.
5. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) AND DECISIONS OF THE STATE OF
ILLINOIS.
6. Jurisdiction. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE
JURISDICTION OF ANY ILLINOIS STATE COURT OR FEDERAL COURT SITTING IN CHICAGO,
ILLINOIS, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. THE PARTIES HERETO
WAIVE IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.
[Signature Page Immediately Follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Assignment and Assumption Agreement to be executed and delivered as of the date
first written above.
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
AMERICAN PACIFIC FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx,
President
THE DELICIOUS FROOKIE COMPANY, INC.
By: /s/ Xxxxxxx Xxxxx
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Title: President
ACKNOWLEDGMENT AND CONSENT
Notwithstanding the provisions of the Purchase Note prohibiting the
assignment and assumption thereof, the undersigned does hereby consent to
the assignment and assumption of the Purchase Note by the Assignees
pursuant to the terms hereof.
XXXXXXX FOODS, L.L.C.
By: /s/ Xxxxxx X. Xxxx
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Manager
[Signature Page to Assignment and Assumption Agreement]
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SPECIAL POWER OF ATTORNEY
I, XXXXX X. XXXXXXX, appoint XXXXXX X. XXXX, my attorney in fact to act on
my behalf as authorized signatory in connection with the acquisition by THE
DELICIOUS FROOKIE COMPANY, INC., a Delaware corporation of assets of XXXXXXX
FOODS, L.L.C., a Delaware limited liability company ("XXXXXXX"), and the secured
loan by REPUBLIC ACCEPTANCE CORPORATION, a Minnesota corporation, to AMERICAN
PACIFIC FINANCIAL CORP., a California corporation ("APFC"), to execute,
acknowledge, swear to, file and/or record any and all documents which are in
connection with the acquisition of the assets of XXXXXXX located at 0000 Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxx, or the loan executed in my name, in my personal
capacity, or in my capacity as President of APFC, pursuant to the terms and
conditions as set forth in the purchase and loan documents evidencing the
transaction. Such instruments or documents shall include by way of illustration
and without limitation any document which effects as sale, conveyance, or
hypothecation of assets of XXXXXXX, or any interest therein, escrow instructions
or supplements thereto, and all loan documents, deeds, leasehold deeds of trust,
bills of sale, UCC-1 financing statements, escrow closing statements or other
documents required, desirable or proper to bind XXXXXXX, APFC or the
undersigned. This special power of attorney will remain in full force and effect
for a period of six (6) months from the date indicated below, unless revoked by
subsequent written instrument.
Dated: March 20, 1998 /s/ XXXXX X. XXXXXXX
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XXXXX X. XXXXXXX
ACKNOWLEDGMENT
State of California )
) ss.
County of San Bernardino )
On this 20th day of March, in the year 1998, before me, Xxxxxxx X. Xxxxxxx
personally appeared Xxxxx X. Xxxxxxx, personally known to me (or provided to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to this instrument, and acknowledged that he executed it. However, any
acknowledgment taken outside this state in accordance with the laws of the place
where the acknowledgment is made, shall be insufficient in this state.
IN WITNESS WHEREOF I have hereunto set my hand and official seal.
/s/ XXXXXXX X. XXXXXXX
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Notary Public
My Commission expires: April 20, 2000
[Seal]
Xxxxxxx X. Xxxxxxx
Comm. #1093886
NOTARY PUBLIC - CALIFORNIA
SAN BERNARDINO COUNTY
Comm. Exp. April 10, 2000
