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EXHIBIT 10.4
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is entered into
among Lone Star U.S. Acquisitions, LLC, a Delaware limited liability company
("Assignor"), LSF3 Capital Investments I, LLC, a Delaware limited liability
company, and LSF3 Capital Investments II, LLC, a Delaware limited liability
company ("Assignees," and each, an "Assignee"), effective as of March 9, 2001.
WHEREAS, Assignor is a party to that certain Amended and Restated Stock
Purchase Agreement (the "Agreement") among the Stockholders (as defined in the
Agreement), Assignor, and Lone Star Fund III (U.S.), L.P., a Delaware limited
partnership, dated as of February 27, 2001; and
WHEREAS, effective as of March 9, 2001 (the "Effective Time"), Assignor
desires to assign, and each Assignee desires to acquire, Assignor's rights,
titles and interests as Buyer under the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Assignor hereby transfers, assigns
and conveys to Assignees, and each of them, all of Assignor's rights, titles and
interests as Buyer in, under and to the Agreement.
1. Assignment and Assumption.
(a) As of the Effective Time, Assignor hereby sells, transfers and
assigns to Assignees, and each of them, all of Assignor's rights, titles and
interests as Buyer in, under and to the Agreement, free and clear of any and all
claims, pledges, liens, security interests or other encumbrances (collectively,
"Encumbrances").
(b) As of the Effective Time, each Assignee hereby acquires and
accepts from Assignor all of Assignor's rights, titles and interests in, under
and to the Agreement and assumes all obligations related to the Agreement.
2. Warranties and Covenants.
(a) Assignor. As a material inducement for and in consideration of
Assignees' obligations under this Assignment, Assignor represents and warrants
to each Assignee that (i)Assignor has all requisite power and authority to
transfer and assign the Agreement to such Assignee and to perform its
obligations under this Assignment, (ii) neither this Assignment nor any
transaction contemplated hereby violates any law or agreement by which Assignor
is bound, and (iii) Assignor owns, and (upon consummation of the transactions
contemplated by this Assignment) Assignees will acquire, all right, title and
interest in and to the Agreement, free and clear of all Encumbrances.
(b) Assignees. As a material inducement for and in consideration of
Assignor's transfer of the Agreement, each Assignee represents and warrants to
Assignor that (i) Assignee has all requisite power and authority to perform its
obligations under this Assignment,
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and (ii) neither this Assignment nor any transaction contemplated hereby
violates any law or agreement by which any Assignee is bound.
3. Miscellaneous.
(a) Entire Agreement. This Assignment sets forth the entire
agreement and understanding, and supersedes any prior agreements and
understandings, written or oral, of the parties with respect to the subject
matter hereof.
(b) Amendments. This Assignment may not be amended except by written
agreement signed by each party against whom such amendment is sought to be
enforced.
(c) Assignment. Neither this Assignment nor any right or obligation
hereunder may be assigned in whole or in part by any party without the written
consent of all parties hereto. This Assignment shall benefit and bind the
parties hereto and their respective successors and permitted assigns.
(d) Choice of Law. This Assignment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Texas
(without regard to any such laws pertaining to conflicts of laws) applicable to
contracts executed and performed in such state.
(e) Counterparts. This Assignment may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
(f) Interpretation. Whenever in this Assignment the singular number
is used, the same shall include the plural where appropriate (and vice versa),
and words of any gender shall include each other gender where appropriate. As
used in this Assignment, "or" shall mean "and/or," and "including" or "include"
shall mean "including without limitation."
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IN WITNESS WHEREOF, this Assignment has been executed and delivered on
March 9, 2001.
Assignor: LONE STAR U.S. ACQUISITIONS, LLC
By: /s/ X.X. Dell
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Name: X.X. Dell
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Title: Sr. Vice President
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Assignees: LSF3 CAPITAL INVESTMENTS I, LLC
By: /s/ X.X. Dell
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Name: X.X. Dell
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Title: President
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LSF3 CAPITAL INVESTMENTS II, LLC.
By: /s/ X.X. Dell
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Name: X.X. Dell
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Title: President
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