EXHIBIT 10.22
PROMISSORY NOTES RESTRUCTURING AGREEMENT
This Agreement, entered into this 8th day of April 2002, is by, between,
and among Ultimate Sports Entertainment, Inc., a Delaware corporation
("Ultimate"), Xxxxx Xxxxxxxxx, an individual ("Xxxxxxxxx"), Unifund
Corporation, a Ohio corporation ("Unifund"), and The Xxxxxx Xxxxx Company, a
California corporation (the "Xxxxx Company").
RECITALS:
A. On or about June 27, 2000, Ultimate borrowed another $25,000 from
Unifund, a company controlled by Xxxxxxxxx, and issued a promissory note of
such date to Xxxxxxxxx for such amount, the maturity date of which was
extended by the holder to December 31, 2001 (hereinafter "Note #1").
B. On or about November 21, 2000, Ultimate borrowed $25,000 from Unifund,
a company controlled by Xxxxxxxxx, and issued a promissory note of such date
to Xxxxxxxxx for such amount, the maturity date of which was extended by the
holder to November 30, 2001 (hereinafter "Note #2").
C. The parties acknowledge that the funds were furnished by Unifund, that
the promissory notes were erroneously issued in the name of Xxxxxxxxx, and
that such funds are due and payable to Unifund.
D. Ultimate has been, and currently is, unable to repay the loans pursuant
to the terms of the promissory notes and desires to extend the payment terms
as set forth in this Agreement.
E. In a transaction unrelated to Ultimate, Unifund owes commissions in the
amount of $50,000 to the Xxxxx Company.
F. Unifund and the Xxxxx Company desire to use this transaction to assign
Note #1 to the Xxxxx Company, and to pay the balance owed for such commission
to the Xxxxx Company in cash, all in full satisfaction of the amount owed for
the commission.
NOW, THEREFORE, in consideration of the mutual terms and covenants of
this Agreement, the parties hereto agree as follows:
1. Cure of Default; Extension of Maturity Date. In order to cure any
default under both Note #1 and Note #2, Ultimate shall immediately issue to
Unifund 60,000 shares of Ultimate common stock (the "Shares"). In addition,
the parties agree that the maturity dates of Note #1 and Note #2 shall be, and
hereby are, extended to December 31, 2002, and that the principal of, and
interest on, such notes shall not be due and payable until December 31, 2002.
2. Assignment of Note #1 and Payment of Cash; Satisfaction of
Commission. Unifund hereby bargains, sells, assigns, and transfers Note #1,
and tenders $17,000, to the Xxxxx Company as full satisfaction of the $50,000
commission owned by Unifund to the Xxxxx Company. The Xxxxx Company hereby
accepts Note #1 and the $17,000 as full satisfaction of such commission due.
Funds shall be wire transferred to the Xxxxx Company as follows:
First Regional Bank
00000 xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Acct Name: Xxxxxx Xxxxx Co.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Acct No. 775091215
Routing No. 000000000
3. Transfer of Note #2. Xxxxxxxxx hereby tenders Note #2 to Ultimate
for transfer to Unifund. Ultimate hereby agrees to cancel Note #2 and issue a
new promissory note to Unifund in the form attached hereto, and incorporated
herein, as Exhibit "A."
4. Securities Law Provisions. Prior to executing this Agreement,
Unifund has executed and delivered to Ultimate a representation form, the form
of which is attached hereto as Exhibit "B," which has been accepted by
Ultimate.
5. Miscellaneous
5.1 Attorneys' Fees. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
will be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to
which it or they may be entitled.
5.2 Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between or among the parties pertaining to
the subject matter contained in it and supercedes all prior and
contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement will be
binding unless executed in writing by all the parties or the applicable
parties to be bound by such amendment. No waiver of any of the provisions of
this Agreement will constitute a waiver of any other provision, whether or not
similar, nor will any waiver constitute a continuing waiver. No waiver will
be binding unless executed in writing by the party making the waiver.
5.3 Governing Law. This Agreement and the rights and duties of
the parties hereto shall be construed and determined in accordance with the
laws of the State of California, and any and all actions to enforce the
provisions of this Agreement shall be brought in a court of competent
jurisdiction in the State of California, and in no other place.
5.4 Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of final jurisdiction, it is the intent
of the parties that all other provisions of this Agreement be construed to
remain fully valid, enforceable, and binding on the parties.
5.5 Assignment. This Agreement may not be assigned by any party
without the prior written consent of all other parties. This Agreement will
be binding on, and will inure to the benefit of, the parties to it and their
respective heirs, legal representatives, successors, and assigns.
5.6 Effect of Headings. The subject headings of the sections
and subsections of this Agreement are included for convenience only and will
not affect the construction of any of its provisions.
5.7 Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts and all such counterparts taken
together shall be deemed to constitute one instrument. Delivery of an
executed counterpart of this Agreement by facsimile shall be equally as
effective as delivery of a manually executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by facsimile
also shall deliver a manually executed counterpart of this Agreement, but the
failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, or binding effect of this Agreement.
5.8 Full Knowledge. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms and
conditions of this Agreement, that each party has had the benefit of counsel,
or has been advised to obtain counsel, and that each party has freely agreed
to be bound by the terms and conditions of this Agreement.
5.9 Corporate Approvals. Each of the entities entering into
this Agreement represents and warrants that the execution of this Agreement by
its corporate officer named below has been duly authorized by its board of
directors, is not in conflict with any bylaw or other agreement, and will be a
binding obligation of such entity, enforceable in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this document to be
effective the day and year first above written.
ULTIMATE: Ultimate Sports Entertainment, Inc.
By /s/ Xxxxxxxxx X. Licht________________
Xxxxxxxxx X. Xxxxx, President
XXXXXXXXX: /s/ Xxxxx Rosenberg___________________
Xxxxx Xxxxxxxxx, Individually
UNIFUND: Unifund Corporation
By /s/ Xxxxx Rosenberg________________
Xxxxx Xxxxxxxxx, President
XXXXX COMPANY: The Xxxxxx Xxxxx Company
By /s/ Xxxxxx Burke___________________
Xxxxxx Xxxxx, President
