EXHIBIT 4.4
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of February 7, 2003, among BWAY Corporation,
a Delaware corporation ("BWAY"), BWAY Manufacturing, Inc., a Delaware
corporation ("BWAY Manufacturing") and BWAY Finance Corp., a Delaware
corporation ("BWAY Finance").
W I T N E S S E T H:
WHEREAS, BWAY Finance and The Bank of New York, as trustee (the "Trustee")
executed and delivered an Indenture, dated as of November 27, 2002 (as amended
and supplemented by the Supplemental Indenture (defined below), the
"Indenture"), providing for the issuance of the 10% Senior Subordinated Notes
due 2010 the "Securities") of BWAY Finance;
WHEREAS, concurrently herewith, BWAY, BWAY Finance and BWAY Manufacturing
are executing and delivering to the Trustee, pursuant to Section 5.01(d) of the
Indenture, a Supplemental Indenture, dated as of the date hereof (the
"Supplemental Indenture"), pursuant to which BWAY is assuming BWY Finance's
obligations under the Indenture and the Securities and BWAY Manufacturing is
guaranteeing BWAY's obligations under the Indenture and the Securities:
WHEREAS, BWAY Finance is a party to each of (i) the Purchase Agreement,
dated November 21, 2002 (the "Purchase Agreement"), between BWAY Finance and
Deutsche Bank Securities Inc. (the "Initial Purchaser"), (ii) the Registration
Rights Agreement, dated as of November 27, 2002 (the "Registration Rights
Agreement"), between BWAY Finance and the Initial Purchaser and (iii) the Escrow
Agreement, dated as of November 27, 2002 (the "Escrow Agreement" and, together
with the Purchase Agreement and Registration Rights Agreement, the "Assigned
Agreements"), between BWAY Finance and The Bank of New York, as escrow agent
(the "Escrow Agent").
WHEREAS, BWAY Finance, pursuant to this Assumption Agreement, desires to
assign all of its right, title and interest to, and liabilities and obligations
under, the Assigned Agreements to BWAY and BWAY desires to assume all of BWAY
Finance's right, title and interest thereto and liabilities and obligations
thereunder; and
WHEREAS, this Assumption Agreement has been duly authorized by all
necessary corporation action on the part of each of BWAY, BWAY Finance and BWAY
Manufacturing.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, BWAY, BYWAY
Manufacturing and BWAY Finance mutually covenant and agree:
ARTICLE I
Assignment, Guarantee and Assumption
Section 1.1. Assignment. BWAY Finance hereby grants, assigns, conveys, sets
over and delivers to BWAY and its successors and assigns al of its right, title
and interest to, and liabilities and obligations under, the Assigned Agreements,
to have and hold unto BWAY and its successors and assigns forever.
Section 1.2. Assumption. In consideration of the assignment made herein to
BWAY, BWAY here agrees to assume, pay, perform and observe all covenants,
agreements, liabilities and obligations of BWAY Finance under the Assigned
Agreements. As provided in each of the Assigned Agreements, BWAY Finance shall
be released and discharged from and shall not be responsible to any person for
the discharge or performance of any duty or obligation pursuant to or in
connection with the Assigned Agreements and BWAY shall be substituted in lieu of
BWAY Finance as a party to each of the Assigned agreements. Upon and
concurrently with such assignment and assumption, BWAY Manufacturing agrees to
guarantee the payment, performance and observance of BWAY's covenants,
agreements, liabilities and obligations under the Assigned Agreements.
Section 1.3. Further Assurances. Each of BWAY Finance, BWAY Manufacturing
and BWAY shall execute such additional documents and instruments and take such
further action as may be reasonably required or desirable to carry out the
provisions hereof.
ARTICLE II
Miscellaneous
Section 2.1. Severability. In case any provision in this Assumption
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.2. Governing Law. This Assumption Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required thereby.
Section 2.3. Multiple Originals. The parties may sign any number of copies
of this Assumption Agreement, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Section 2.4. Headings. The Article and Section headings herein are inserted
for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be duly executed as of the date first written above.
BWAY CORPORATION
BY: /s/ Kevin C. Kern
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Name: Kevin C. Kern
Title: Chief Financial Officer
BWAY FINANCE CORP.
BY: /s/ James J. Connors II
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Name: James J. Connors II
Title: Vice President and Secretary
BWAY MANUFACTURING, INC.
BY: /s/ Jeffrey M. O'Connell
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Name: Jeffrey M. O'Connell
Title: Vice President and Secretary