EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION
AGREEMENT
ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made
as of the 31st day of December, 2008, by and between M&W
FIBERGLASS, LLC, a Wisconsin limited liability company
(“M&W”), ADVANCED FIBERGLASS TECHNOLOGIES, INC., a
Wisconsin corporation (“AFT”), and JAMIE L. MANCL AND
JENNIFER MANCL (the “Mancls”) and NEKOOSA PORT EDWARDS
STATE BANK (the “Original Purchaser”) and NEKOOSA PORT
EDWARDS STATE BANK (the “Trustee”).
WHEREAS, AFT proposes to buy substantially all
of the assets owned by M&W and assume all rights and
responsibilities of M&W under (i) that certain Bond Agreement
dated as of February 28, 2007 (the “Bond Agreement”) by
and among the City of Wisconsin Rapids, Wisconsin (the
“Issuer”), M&W, AFT, the Mancls, the Trustee and
the Original Purchaser pursuant to which the Issuer issued its
$4,000,000 Industrial Development Revenue Bonds, Series 2007A,
2007B and 2007C (Advanced Fiberglass Technologies Project) (the
“Bonds”), (ii) that certain Credit Agreement dated as
of February 28, 2007 (the “Credit Agreement”) by and
among AFT, M&W, the Mancls and Original Purchaser, and (iii)
all of the documents and agreements relating thereto;
and
WHEREAS, Section 6.11 of the Bond Agreement
allows M&W to dispose of all or substantially all of its assets
and thereafter be released from its obligations under the Bond
Agreement and the Bonds if: (i) the resulting, surviving or
transferee legal entity, as the case may be, is a legal entity
established and duly existing under the laws of one of the states
of the United States of America; (ii) such resulting, surviving or
transferee legal entity expressly assumes in writing all of the
obligations of M&W contained in the Bond Agreement and the
Security Documents (as such term is defined in the Bond Agreement);
(iii) the Original Purchaser while it remains a Bondowner shall
have consented in writing to such transaction; and (iv) the
resulting, surviving or transferee entity shall have net assets
immediately following such transaction at least equal to or greater
than that of M&W immediately prior to such
transaction;
WHEREAS, M&W is a party to the Bond
Agreement, the Credit Agreement and those agreements described in
Schedule 1 attached hereto (collectively, the “Assumed
Contracts”); and
WHEREAS, M&W wishes to assign its interest
in the Assumed Contracts to AFT, and AFT wishes to accept such
assignment and to assume all of M&W’s obligations and
liabilities under the Assumed Contracts; and
WHEREAS, the Original Purchaser has consented
pursuant to Section 6.11 of the Bond Agreement to the transfer of
substantially all of the assets of M&W to AFT and the
assumption of the obligations of M&W by AFT under the Assumed
Contracts, on the terms set forth herein,
WHEREAS, the Original Purchaser has also agreed,
on the terms set forth herein, to release Fiberglass Piping &
Fitting Company, a Wisconsin corporation (“Fiberglass Piping
& Fitting”) under its Unlimited Continuing Guaranty dated
as of February 28, 2007 in favor of the Original Purchaser and the
Trustee given as security for the Obligations (defined therein)
(the “Guaranty”);
NOW THEREFORE, in consideration of the recitals
and of the consummation of the transactions contemplated in this
Assignment and Assumption Agreement and for other good
and
valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
l.
Assignment . M&W hereby assigns to AFT all of
its right, title and interest in and to the Assumed
Contracts.
2.
Assumption . AFT hereby accepts the foregoing
assignment and assumes and agrees to pay, perform in accordance
with, and be bound by all of the covenants, terms and obligations
contained in the Assumed Contracts arising from and after the date
hereof. On and after the date hereof, all references in
the Assumed Contracts to “Borrower”,
“Debtor,” “Grantor,”
“Mortgagor” or words of similar import shall be deemed
to refer to AFT and all representations, warranties, covenants,
grants of security interests or liens, and other agreements made
therein are hereby made by AFT.
3.
Representation and Warranty of M&W . M&W
represents and warrants to AFT that at the time of the execution
and delivery of this Assignment and Assumption Agreement,
M&W’s right, title and interest in and to the Assumed
Contracts being ass
|
