Exhibit 2.2
EXECUTION COPY
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
This Amendment No. 1 (the "Amendment") is entered into as of June 12, 2001,
by and among (i) Applied Extrusion Technologies, Inc., a Delaware corporation
(the "Buyer"), and (ii) QPF, LLC, a Mississippi limited liability company (the
"Seller"), and Hood Companies, Inc., a Mississippi corporation (the "Parent";
each of the Seller and the Parent is sometimes referred to herein as "Selling
Party" and collectively as the "Selling Parties"). The Buyer and the Selling
Parties are collectively referred to herein as the "Parties."
The Parties entered into an Asset Purchase Agreement dated as of May 3,
2001. The Parties now desire to enter into this Amendment in order to amend and
supplement certain of the terms and provisions of such Asset Purchase Agreement.
Such Asset Purchase Agreement as in effect immediately prior to the
effectiveness of this Amendment is referred to herein as the "Prior Agreement",
and such Asset Purchase Agreement as in effect immediately after the
effectiveness of this Amendment is referred to herein as the "Amended
Agreement."
The purposes of this Amendment include, without limitation, to remove from
the Amended Agreement all references to the Purchase Note and the Purchase
Security Agreement, to provide for the Closing to occur on June 19, 2001 and to
provide that, notwithstanding the Closing on June 19, 2001, the Seller will
continue to operate the assets to be transferred to the Buyer under the Amended
Agreement until June 30, 2001, when title to such assets shall be transferred to
the Buyer.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. Definitions. Terms defined in the Amended Agreement and not otherwise
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defined herein are used herein with the meanings so defined.
2. Amendments to Prior Agreement. Effective as of the date of this Amendment,
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the Prior Agreement is hereby amended as follows:
2.1. Defined Terms. Section 1.1 of the Prior Agreement is amended as
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follows:
(a) The definitions of "Purchase Note" and "Purchase Security
Agreement" are deleted.
(b) The definition of "Note" is amended to read in its entirety as
follows:
"Note" means the Inventory Note.
(c) The definition of "Security Agreement" is amended to read in its
entirety as follows:
"Security Agreement" means the Inventory Security Agreement.
2.2. Section 2.5. Section 2.5 of the Prior Agreement is amended to
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read in its entirety as follows:
2.5. Purchase Price. In consideration for the Acquired Assets, the
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Buyer agrees to assume the Assumed Liabilities and to deliver to the Seller
as set forth below in this (S) 2.5, (i) $15,000,000 (the "Asset Purchase
Price") plus (ii) a note, in substantially the form attached hereto as
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Exhibit C (the "Inventory Note"), payable to the Buyer in an amount equal
to the sum of the Raw Materials and Supply Inventory Amount plus the Work-
----
in-Process and Finished Goods Inventory Amount, ((i) and (ii) together, the
"Purchase Price").
(a) The Purchase Price shall be payable by the Buyer to the
Seller as follows:
(i) Concurrently with the execution and delivery of this
Agreement, the Buyer is delivering to the Seller, by wire
transfer of immediately available funds, the amount of
$2,000,000 (the "Deposit") in prepayment of a portion of the
Asset Purchase Price. The Seller shall be entitled to retain the
Deposit whether or not the Closing actually occurs, unless any
of the following shall have occurred: (A) the Seller shall have
failed to issue a WARN notice with respect to all of the
employees at the Streamwood facility not more than five (5)
Business Days after the date hereof; (B) the Seller shall have
failed to publicly announce the transactions contemplated hereby
not more than five (5) Business Days after the date hereof; (C)
after the date hereof, the Seller shall have failed to provide
the Buyer and its representatives with full access to the
Streamwood Facility, all of the Acquired Assets and all
employees engaged in the Business; or (D) the Selling Parties
shall have failed to assist the Buyer in conducting an orderly
transition of the Business from the Seller to the Buyer in
accordance with the last sentence of (S) 5.3; provided, however,
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that, if the Closing shall not occur by virtue of either (A) a
willful or grossly negligent failure by either of the Selling
Parties to satisfy any condition set forth in (S) 6.1 or (B) the
Buyer having terminated this Agreement pursuant to (S) 10.1(b)
and if a basis for such termination arose by virtue of a willful
or grossly negligent act, failure to act or omission by either
of the Selling Parties, then the Seller shall promptly, and in
any event within two (2) Business Days, return the Deposit to
the Buyer.
(ii) Concurrently with the execution and delivery of this
Agreement, the Buyer is delivering to State Street Bank and
Trust Company, as Escrow Agent (the "Escrow Agent"), pursuant to
the Escrow Agreement in substantially the form attached hereto
as Exhibit M (as from time to time in effect, the
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"Escrow Agreement") the amount of $4,000,000 (the "Escrow
Amount"). Such funds shall be held by the Escrow Agent in
accordance with the terms of the Escrow Agreement and shall be
delivered to the Seller at the Closing in payment of a portion
of the Asset Purchase Price. The Seller shall be paid the Escrow
Amount whether or not the Closing actually occurs, unless the
Closing shall not occur by virtue of either (A) a failure by the
Selling Parties to satisfy any condition set forth in (S) 6.1 or
(B) the Buyer having terminated this Agreement pursuant to (S)
10.1(b), in which event the Escrow Amount shall be returned to
the Buyer.
(iii) At the Closing, the Buyer shall pay the balance of
the Asset Purchase Price ($9,000,000) by delivering to the
Seller, by wire transfer to such account as the Seller may
specify not less than two Business Days prior to the Closing,
immediately available funds in the amount of $9,000,000.
(iv) On June 30, 2001, the Buyer shall execute and deliver
to the Seller the Inventory Note. The Buyer's payment of the
Inventory Note shall be secured by a security interest in the
Inventory pursuant to an Inventory Security Agreement (the
"Inventory Security Agreement") in substantially the form of
Exhibit D hereto, which the Buyer shall execute and deliver to
the Seller on June 30, 2001.
(b) The Buyer will use its reasonable commercial efforts to
consume or sell the Inventory. The Buyer will remit cash payments to
the Seller in the amount of the purchase price paid by the Buyer for
any Inventory determined pursuant to Exhibit E which is consumed or
sold, such payments to be made at the time the Buyer moves such
Inventory from a facility under the control of the Seller. Each such
payment shall automatically reduce the balance outstanding on the
Inventory Note by the amount of such payment, and the Buyer shall pay
the outstanding balance on the Inventory Note, if any, to the Seller
on the date which is 230 days after June 30, 2001.
2.3. Section 2.6. Section 2.6 of the Prior Agreement is amended to read
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in its entirety as follows:
2.6. Inventory Amount Calculations.
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(a) Raw Materials and Supply Inventory. On June 30, 2001, the
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Buyer and the Seller shall together conduct a physical count of that
portion of raw materials and supply inventory acquired and held by the
Seller for use in the Business in the Ordinary Course of Business that
will not be slow moving or obsolete as of June 30, 2001. The Seller
shall prepare, and shall furnish to the Buyer on June 30, 2001, a
certificate, executed by the Chief Financial Officer of the Seller,
that sets forth the aggregate cost of such raw materials and supply
inventory calculated in accordance with Exhibit E (the "Raw Materials
and Supply Inventory Amount") and that sets forth the book value of
such raw materials and supply inventory calculated in accordance with
GAAP.
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(b) Work-in-Process and Finished Goods Inventories. On June
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30, 2001, the Buyer and the Seller shall together conduct a physical
count of work-in-process inventory and finished goods inventory
acquired and held by the Seller for use in the Business in the
Ordinary Course of Business. The Seller shall prepare, and shall
furnish to the Buyer on June 30, 2001, a certificate, executed by the
Chief Financial Officer of the Seller, that sets forth the aggregate
cost of such work-in-process and finished goods inventory calculated
in accordance with Exhibit E (the "Work-in-Process and Finished Goods
Inventory Amount") and that sets forth the book value of such work-in-
process and finished goods inventory calculated in accordance with
GAAP.
2.4. Section 2.7. Section 2.7 of the Prior Agreement is amended to read in
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its entirety as follows:
2.7. Determination of Amounts. The Buyer and the Seller, on June 30,
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2001, will agree upon each of the Raw Materials and Supply Inventory Amount
and the Work-in-Process and Finished Goods Inventory Amount. The principal
amount of the Inventory Note shall be equal to the sum of the Raw Materials
and Supply Inventory Amount plus the Work-in-Process and Finished Goods
----
Inventory Amount. If the Parties disagree as to any of such amounts: (a) the
Buyer and the Seller shall each deliver to the other its determination of
the sum of the Raw Materials and Supply Inventory Amount plus the Work-
----
in-Process and Furnished Goods Inventory Amount (each a "Disputed Amount");
(b) the Buyer shall deliver to the Seller the Inventory Note in an amount
equal to (x) the sum of the Buyer's Disputed Amount plus the Seller's
----
Disputed Amount divided by (y) 2.0; (c) PricewaterhouseCoopers (the
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"Independent Accountant") shall review the Disputed Amounts and shall,
within ten (10) days of June 30, 2001, select either the Buyer's Disputed
Amount or the Seller's Disputed Amount as most closely being equal to the
sum of the actual Raw Materials and Supply Inventory Amount plus the Work-
----
in-Process and Finished Goods Inventory Amount, and this determination will
be final and binding on the Parties; (d) the Parties shall co-operate with
the Independent Accountant in responding to requests for information; (e)
the expenses of the Independent Accountant shall be borne by the Party whose
Disputed Amount was not so selected by the Independent Accountant; and (f)
the Buyer shall deliver to the Seller a new Inventory Note reflecting the
Disputed Amount chosen by the Independent Accountant in exchange for the
Inventory Note delivered to the Seller at June 30, 2001, which the Seller
shall deliver to the Buyer marked "Cancelled".
2.5. Section 2.8. Section 2.8 of the Prior Agreement is amended by
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substituting the date "June 19, 2001" for the date "June 29, 2001" appearing
therein.
2.6. Section 2.9. Section 2.9 of the Prior Agreement is amended to read
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in its entirety as follows:
2.9. Deliveries at the Closing.
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(a) At the Closing, the Selling Parties will deliver to the
Buyer properly executed and acknowledged, if requested by the Buyer, (i)
the Xxxx of Sale in the form attached hereto as Exhibit G and the
Assignment and Assumption Agreement in the
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form attached hereto as Exhibit H, (ii) the various certificates,
instruments, and documents referred to in (S) 6.1 and elsewhere herein,
(iii) such other instruments of sale, transfer, conveyance and
assignment as the Buyer and its counsel may reasonably request.
(b) At the Closing, the Buyer will deliver to the Selling
Parties properly executed and acknowledged, if requested by the Selling
Parties, (i) the Assignment and Assumption Agreement in the form
attached hereto as Exhibit H, (ii) the various certificates,
instruments, and documents referred to in (S) 6.2 and elsewhere herein,
(iii) such other instruments of sale, transfer, conveyance and
assignment as the Selling Parties and their counsel may reasonably
request, and (iv) the consideration specified in (S) 2.5 to be delivered
by the Buyer to the Seller at the Closing.
(c) On or prior to June 30, 2001, the Seller shall collect and
assemble all of the Acquired Assets which are tangible into the
Streamwood Facility, provided that finished goods Inventory may continue
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to be stored with warehousemen and at the locations specified by the
Seller in a certificate given by the Seller to the Buyer at the Closing.
(d) It is understood and agreed that, although the Buyer will
acquire title to, and ownership of, all of the Acquired Assets on June
30, 2001, the Acquired Assets not constituting Inventory shall remain in
the possession of the Seller after such date and, in the case of such
Acquired Assets as are tangible, located at the Streamwood Facility,
provided that the Buyer shall be entitled to possession of any thereof
as from time to time may be requested by the Buyer after June 30, 2001.
The Seller shall take all actions reasonably requested by the Buyer in
order to identify such Acquired Assets as the property of the Buyer. The
Buyer agrees that it shall remove all Inventory from the Streamwood
Facility within 120 days after June 30, 2001.
2.7. Addition of Section 2.12. The Prior Agreement is amended by adding
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thereto a new Section 2.12 which shall read in its entirety as follows:
2.12. Continuing Operations. The Parties agree that, notwithstanding
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the occurrence of the Closing, the Seller shall continue to have title to and
possession of all of the Acquired Assets until June 30, 2001, and shall
continue to operate the Acquired Assets to produce Inventory between the
Closing and June 30, 2001. The Seller shall be responsible for all Losses
arising out of or related to the conduct of the Business or the ownership of
the Acquired Assets until title to the Acquired Assets is transferred to the
Buyer in accordance with the terms hereof. On and as of June 30, 2001, except
solely to the extent required to comply with (S) 5.10, the Selling Parties
shall have: (i) ceased all manufacturing operations at the Streamwood
Facility; (ii) closed the Streamwood Facility in accordance with (S) 5.12;
and (iii) terminated the employment of all of the employees of the Seller
except those employees that are to be retained by the Seller.
2.8. Section 5.10. Section 5.10 of the Prior Agreement is amended by
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substituting the phrase "June 30, 2001" for the phrase "the Closing Date" each
place where it appears therein.
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2.9. Section 5.11. Section 5.11 of the Prior Agreement is amended by
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substituting the phrase "June 30, 2001" for the phrase "the Closing Date" each
place where it appears therein. The first paragraph of Section 5.11 is amended
to read in its entirety as follows:
5.11. Accounts Receivable. For a period not exceeding six (6)
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months after June 30, 2001, the Buyer shall be responsible for managing the
collection of accounts receivable retained by the Seller and relating to
the Business; provided, however, that the Buyer shall not be responsible
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for managing the collection of accounts receivable retained by the Seller
and listed on Exhibit N and, provided, further, that the Buyer shall not be
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required to condition any sale to a customer on the payment by such
customer of all or any part of such an account receivable, commence any
collection proceedings in the nature of litigation, or take any other
action which is or may be adverse to such customer or the Buyer's
relationship with such customer.
2.10. Section 5.12. Section 5.12 of the Prior Agreement is amended to
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read in its entirety as follows:
5.12. Closing of Streamwood Facility; Maintenance, Storage, Removal
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and Shipment of Acquired Assets.
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(a) The parties acknowledge that the Acquired Assets are
located on real property and in buildings which, at and after June
30, 2001, either will be owned by Seller or will be owned by a third
party to which Seller has sold such real property and buildings (the
"Third Party Owner") either as of June 30, 2001 or sometime after
June 30, 2001. The parties further acknowledge that, as of June 30,
2001, substantially all of the Acquired Assets which are tangible
(excluding Inventory which is held in third party warehouses or on
consignment) will be located at the Streamwood Facility.
(b) On or prior to June 30, 2001, Seller shall discontinue
all manufacturing activities at the Streamwood Facility, except for
its slitting and shipping operations, as contemplated in Section
5.10 hereof, and except as may be mutually agreed to in writing by
the parties.
(c) Seller shall, and (if applicable) shall cause the Third
Party Owner to, continue to allow the Acquired Assets to remain in
the Streamwood Facility as follows:
(i) Seller shall, and (if applicable) shall cause the
Third Party Owner to, continue to allow the Acquired Assets
to remain in the Streamwood Facility for a period of not less
than six (6) months after June 30, 2001; provided that any
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Inventory at the Streamwood Facility will be removed in
accordance with (S) 2.9(d) hereof. At such time as the
Acquired Assets are no longer allowed to remain in the
Streamwood Facility pursuant to the immediately preceding
sentence, the Buyer will remove all Acquired Assets from the
Streamwood Facility in accordance with the other provisions
of this (S) 5.12.
(ii) Intentionally Omitted.
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(iii) Seller will, and will (if applicable) cause the
Third Party Owner to, from time to time allow Buyer
reasonable access to the Acquired Assets for the express
intent of selling or moving all or a portion of the Acquired
Assets.
When the Asset Purchase Price is paid in full at Closing, Seller
shall, and (if applicable) shall cause the Third Party Owner to,
give Buyer and its representatives all reasonable access to the
Acquired Assets for the purposes of dismantling, crating and
shipping any equipment included in the Acquired Assets. From and
after June 30, 2001, Seller shall use reasonable efforts to keep
Seller's employees, agents and representatives away from the
Acquired Assets to the extent that they remain in Seller's
Streamwood Facility, except as contemplated in Section 5.10 hereof.
From and after June 30, 2001, Buyer shall be solely responsible for
the Acquired Assets, including without limitation the protection and
insuring thereof and all Taxes relating thereto.
(d) Seller shall, and (if applicable) shall cause the Third
Party Owner to, maintain all insurance, security, services and
utilities relating to the Streamwood Facility so long as any of the
Acquired Assets remain therein, and, prior June 30, 2001, Seller
shall maintain all insurance on the Acquired Assets on the same
terms and conditions as such insurance exists on the date hereof.
(e) Intentionally Omitted.
(f) When Buyer removes the Acquired Assets from the
Streamwood Facility, Buyer shall not be required to restore or
repair those areas of the Streamwood Facility which may be required
to be damaged in order to separate and remove the Acquired Assets
from the Streamwood Facility. Notwithstanding the immediately
preceding sentence, Buyer shall be responsible for any and all other
damage caused by Buyer, its employees, agents and contractors to the
Streamwood Facility other than such damage as may be reasonably
necessary in connection with the separation and removal of the
Acquired Assets from the Streamwood Facility.
(g) Prior to commencing removal of any of the Acquired
Assets, Buyer shall furnish to the Selling Parties and (if
applicable) the Third Party Owner certificates of insurance from
Buyer's insurance carrier and from the insurance carrier of the
Person which is to perform the removal activity. Such certificates
of insurance shall be in such amounts and with such deductibles as
may be reasonably required by the Selling Parties and (if
applicable) the Third Party Owner; provided, however, that such
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amounts of coverage and deductibles must be reasonable in light of
the removal activity to be performed and shall name the Selling
Parties and (if applicable) the Third Party Owner as an additional
insured.
(h) Each Person, including without limitation Buyer, which
is removing any of the Acquired Assets shall carry workers
compensation as required by the law of the State of Illinois and
shall furnish evidence of the same to the Selling Parties and (if
applicable) the Third Party Owner prior to commencing any work at
the Streamwood Facility.
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(i) All Persons while on the Streamwood Facility shall
comply with all Federal, state and local laws, rules and regulations
and shall further comply with Seller's and (if applicable) the Third
Party Owner's reasonable general safety rules while on the
Streamwood Facility.
(j) After June 30, 2001, the Selling Parties and (if
applicable) the Third Party Owner shall have no obligation
whatsoever to maintain, repair and replace any Equipment included in
the Acquired Assets, including but not limited to the Equipment used
for the slitting and shipping operations contemplated in Section
5.10 hereof and any Equipment used for manufacturing if the parties
have mutually agreed in writing to continue manufacturing operations
after June 30, 2001. Buyer specifically understands, agrees and
acknowledges that from and after June 30, 2001, all costs and
expenses for repairing and maintaining repairing the Equipment shall
be at the sole cost and expense of Buyer and all obligation to
repair and maintain the Equipment shall be the sole responsibility
of Buyer.
(k) Buyer agrees to save harmless and indemnify the Selling
Parties and their successors and assigns for any loss, cost, damage
or injury arising or resulting from acts or omissions of the Buyer
or its agents in connection with their activities in the Streamwood
Facility and all work and activities undertaken by the Buyer
pursuant to this Agreement shall be undertaken by qualified
personnel. Buyer agrees to use reasonable commercial efforts to
obtain the agreement of any third party contractors performing work
on Buyer's behalf at the Streamwood Facility to indemnify the
Selling Parties and their successors and assigns for any loss, cost,
damage or injury arising or resulting from acts or omissions of such
third party contractor. The provisions of this (S) 5.12(k) are in
addition to the indemnities provided elsewhere in this Agreement.
(l) Each Selling Party, jointly and severally with the
other Selling Party, agrees to save harmless and indemnify the Buyer
and its successors and assigns for any loss, cost, damage or injury
arising or resulting from acts or omissions of either Selling Party
or the agents of either of them in connection with their activities
in the Streamwood Facility and all work and activities undertaken by
each Selling Party pursuant to this Agreement shall be undertaken by
qualified personnel. Each Selling Party agrees to use reasonable
commercial efforts to obtain the agreement of any third party
contractors performing work on behalf of either Selling Party at the
Streamwood Facility to indemnify the Buyer and its successors and
assigns for any loss, cost, damage or injury arising or resulting
from acts or omissions of such third party contractor. The
provisions of this (S) 5.12(l) are in addition to the indemnities
provided elsewhere in this Agreement.
2.11. Section 5.14. Section 5.14 of the Prior Agreement is amended to
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read in its entirety as follows:
5.14. Intentionally Omitted.
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2.12. Section 6.1(c). Section 6.1(c) of the Prior Agreement is amended
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to read in its entirety as follows:
(c) Intentionally Omitted.
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2.13. Exhibits.
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(a) Exhibits A and B to the Prior Agreement are hereby deleted.
(b) Exhibits G and H are amended to read in their entirety as set
forth in Exhibits G and H, respectively, to this Amendment.
(c) The legal opinions attached as Exhibits K and L to the Prior
Agreement will be modified as mutually agreed to by the Parties at Closing.
3. Miscellaneous.
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3.1. Entire Agreement. This Amendment and the Amended Agreement
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(including the documents referred to herein and therein) constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to
the extent they related in any way to the subject matter hereof.
3.2. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
3.3. Headings. The section headings contained in this Agreement are
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inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
3.4. Governing Law. This Amendment shall be governed by and construed in
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accordance with the domestic laws of the State of New York without giving effect
to any choice or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
3.5. Effect of Amendments. Except as specifically amended hereby, the
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Prior Agreement shall remain unchanged, and the Amended Agreement is hereby
confirmed by each Party as being in full force and effect.
3.6. Severability. Any term or provision of this Agreement that is
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invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
3.7. Construction. The Parties have participated jointly in the
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negotiation and drafting of this Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the Parties and no presumption or burden of
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proof shall arise favoring or disfavoring either Party by virtue of the
authorship of any of the provisions of this Amendment.
3.8. Incorporation of Exhibits. The Exhibits identified in this
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Amendment are incorporated herein by reference and made a part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date first above written.
APPLIED EXTRUSION TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
__________________________________________
Title: Senior Vice President and
Chief Financial Officer
_______________________________________
HOOD COMPANIES, INC.
By: /s/ Xxxxx X. Xxxxx
__________________________________________
Title: Vice President
_______________________________________
QPF, LLC
By: /s/ Xxxxx X. Xxxxx
__________________________________________
Title: Vice President
_______________________________________
EXHIBIT G
XXXX OF SALE
XXXX OF SALE, made, executed and delivered on June 19, 2001, by QPF,
L.L.C., a Mississippi limited liability company (the "Seller"), to Applied
Extrusion Technologies, Inc., a Delaware corporation (the "Buyer")
W I T N E S S E T H:
WHEREAS, the Buyer and the Seller are parties to an Asset Purchase
Agreement dated as of May 3, 2001 (the "Agreement") and Amendment No. 1 to the
Agreement, dated as of June __, 2001 (the "Amendment"; the Agreement, as amended
by the Amendment, the "Amended Agreement");
WHEREAS, the Buyer and the Seller now desire to carry out the intent and
purpose of the Amended Agreement by the Seller's execution and delivery to the
Buyer of this instrument evidencing the sale, conveyance, assignment, transfer
and delivery to the Buyer of the Acquired Assets (as defined in the Amended
Agreement), subject to the Assumed Liabilities (as defined in the Amended
Agreement); provided, however, that there shall be excluded all Excluded
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Liabilities (as defined in the Amended Agreement) and all Liabilities that are
not specifically stated in the Amended Agreement to be Assumed Liabilities; and
WHEREAS, it is the intention of the Buyer and the Seller that the Buyer
will not assume the Assumed Liabilities and the Seller will not transfer title
to the Acquired Assets until June 30, 2001, during which time the Seller will
continue to operate the Acquired Assets pursuant to the Amended Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Seller does hereby sell, convey, assign, transfer and deliver
unto the Buyer, effective on June 30, 2001, all of the Seller's right, title and
interest in and to the Acquired Assets, subject to the Assumed Liabilities and
free and clear of all Liens (as defined in the Amended Agreement), except as
listed on Schedule 2.1(a) of the Amended Agreement.
TO HAVE AND TO HOLD the Acquired Assets unto the Buyer, its successors and
assigns, FOREVER.
In the event that any provision of this Xxxx of Sale be construed to
conflict with a provision in the Amended Agreement, the provision in the Amended
Agreement shall be deemed to be controlling.
This instrument shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the Buyer and the Seller.
This Xxxx of Sale shall be construed and enforced in accordance with the
domestic substantive laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has executed this instrument under seal
of the Seller on the date first above written.
QPF, LLC
By:_____________________________
Title:
EXHIBIT H
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of June 19, 2001 (the
"Assignment Agreement") by and between Applied Extrusion Technologies, Inc., a
Delaware corporation (the "Buyer"), and QPF, L.L.C., a Mississippi limited
liability company (the "Seller")
W I T N E S S E T H :
WHEREAS, the Buyer and the Seller are parties to a Asset Purchase Agreement
dated as of May 3, 2001 (the "Agreement") and Amendment No. 1 to the Agreement,
dated as of June __, 2001 (the "Amendment"; the Agreement, as amended by the
Amendment, the "Amended Agreement");
WHEREAS, pursuant to the Amended Agreement, the Buyer agreed to assume
certain liabilities and obligations of the Seller as are expressly described as
being Assumed Liabilities in Section 2.3 of the Amended Agreement and the Seller
agreed to retain all other liabilities of the Seller, including, without
limitation, all Excluded Liabilities (as defined in the Amended Agreement);
WHEREAS, it is the intention of the Buyer and the Seller to reflect the
transfer of title of the Acquired Assets by the execution and delivery of this
Assignment Agreement between the Seller and the Buyer; and
WHEREAS, it is the intention of the Buyer and the Seller that the Buyer
will not assume the Assumed Liabilities and the Seller will not transfer title
to the Acquired Assets until June 30, 2001, during which time the Seller will
continue to operate the Acquired Assets pursuant to the Amended Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Buyer and the Seller hereby agree as follows:
1. Terms defined in the Amended Agreement and not otherwise defined herein are
used herein with the meanings so defined.
2. The Seller hereby assigns to the Buyer, free and clear of all Liens (except
as listed on Schedule 2.1(a) of the Amended Agreement), all of the Seller's
right, title and interest in, to and under all Contractual Obligations and other
property and assets constituting the Acquired Assets, effective as of June 30,
2001.
3. The Buyer hereby assumes all Liabilities of the Seller constituting the
Assumed Liabilities, effective as of June 30, 2001. Notwithstanding anything to
the contrary herein, or in any other writing delivered in connection herewith,
the Buyer is not assuming and will not
perform any Liabilities not specifically stated by the Amended Agreement to be
Assumed Liabilities and, in particular, is not assuming and will not perform any
of the Excluded Liabilities.
4. In the event that any provision of this Assignment Agreement be construed to
conflict with a provision of the Amended Agreement, the provision in the Amended
Agreement shall be deemed controlling.
5. This Assignment Agreement shall bind and shall inure to the benefit of the
respective parties and their assigns, transferees and successors.
6. This Assignment Agreement shall be construed and enforced in accordance with
the domestic substantive laws of the State of New York.
7. This Assignment Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will constitute
one and the same instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed this instrument under
seal as of the date first above written.
QPF, LLC
By: _____________________________
Title:
APPLIED EXTRUSION TECHNOLOGIES, INC.
By: _____________________________
Title:
EXHIBIT N
Excluded Accounts Receivable
Packaging Products Corporation
