EXHIBIT 1
Option B: Cash and Wickes Shares
PURCHASE AND SALE OF NOTES AND INTEREST
IN COLLATERAL DOCUMENTS AGREEMENT
THIS PURCHASE AND SALE OF NOTES AND INTEREST IN COLLATERAL DOCUMENTS
AGREEMENT ("the Agreement") is made and entered into as of the ___ day of
_________, 2001, by and between ___________, whose address is __________
(hereinafter referred to as "Holder"), and (ii) IMAGINE INVESTMENTS, INC., a
Delaware corporation, with principal office and place of business at Suite 1901,
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, XX 00000 (hereinafter referred to as
"Imagine") and Stone Holdings; Inc, a Delaware corporation, with its principal
office and place of business at 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, XX 00000
(hereinafter referred to as "Guarantor").
Recitals:
A. On or about April 1, 1999, Holder made a loan to Riverside Group, a
Florida corporation ("Borrower"), in the original principal amount of $100,000,
as evidenced by one or more Promissory Notes, dated April 1, 1999 (the "Note").
B. The Note was made pursuant to a Credit Agreement dated as of April 1,
1999 (the "Credit Agreement") pursuant to which the Holder and others
(collectively, the "Holders") made loans to the Borrower aggregating
$10,000,000.00 (collectively, the "Loan"). The Credit Agreement was entered into
between the Borrower, the parties executing same as Holders, and Xxxxxxxx X.
Xxxxxx (the "Agent"), as agent for the Holders.
c. In accordance with the Credit Agreement, the Agent, acting for the
Holders, entered into a certain Intercreditor Agreement, dated as of August 24,
1999, with American Founders Life Insurance Company and certain collateral
documents with the Borrower, encumbering assets of the Borrower. Further, the
Agent, acting for the Holders, entered into a Forbearance Agreement, dated as of
May 8, 2000, and an Amendment to Forbearance Agreement, dated as of August 14,
2000 (together the "Forbearance Agreements"). Pursuant to the Fobearance
Agreement, additional collateral for the Loan was granted by the Company to the
Agent, acting for the Holders (all collateral presently securing the Loan is
referred to herein as the "Collateral", and all documentation evidencing the
encumbrance and pledging of such collateral is referred to herein as the
"Collateral Documents"). The Credit Agreement, the Intercreditor Agreement, the
Note, the Forbearance Agreement and the Collateral Documents together are
referred to herein as the "Loan Documents"). The Loan is in default and the
Agent, on behalf of the Holders, has demanded payment and commenced action to
liquidate the Collateral.
D. Imagine now desires to purchase all of Holder's right, title and
interest in and to the Loan, the Note, all Collateral and any other security
therefor, the Collateral Documents and all other Loan Documents, without
recourse or warranties, except as expressly provided in this Agreement, in
exchange for payment of the consideration hereinafter described, upon the terms
and conditions set forth herein.
E. Imagine has conducted its own, independent examination of the Borrower's
financial condition, the Loan Documents, the Collateral and the prospects for
repayment of the Loan. Imagine has not relied upon any statement or assurance
from Holder, any other Holder or the Agent regarding the Borrower, the
Collateral or repayment of the Loan, except as expressly provided in this
Agreement.
F. Guarantor directly or indirectly owns all the outstanding stock of
Imagine.
Agreement:
NOW, THEREFORE, in consideration of payment of the "Consideration," as
hereinafter defined, by Imagine to Holder, and the mutual promises and covenants
contained herein and intending to be legally bound, the parties hereby agree as
follows:
1. Consideration. As consideration for the sale of the Note, Imagine shall
pay, transfer and deliver cash, and Guarantor shall cause Imagine to pay,
transfer and deliver, to Holder at the "Note Closing" (as defined in Section 7
hereof) (i) the sum of $______ in ("Cash Payment"), and (ii) ______ shares of
common stock in Wickes, Inc. (the "Wickes Shares"). (The Cash Payment and the
Wickes Shares are referred to herein as the "Consideration"). The Wickes Shares
shall be represented by either (i) a stock certificate in the name of Holder or
(ii) a stock certificate in the name of Imagine duly executed and assigned into
the name of Holder, signature guaranteed, with duly executed stock power and all
other actions necessary to transfer the Wickes Shares into the name of Holder.
After the Note Closing, Holder shall be deemed for all purposes to be the legal
and beneficial owner of the Wickes Shares, subject only to the Put/Call
described in Section 8 hereof.
2. Assignment of Note. At the Note Closing, Holder shall sell, assign and
deliver to Imagine, without warranty or recourse except as provided in this
Agreement, Holder's entire right, title and interest in and to the Loan, the
Note, all Collateral and other security therefor, the Collateral Documents and
all other Loan Documents, together with any claims that Holder may have against
Borrower arising out of, or in connection with, the Loan, and at the Note
Closing, Imagine agrees to accept such assignment and agrees to be bound by and
perform all of the provisions undertaken by Holder therein. This assignment
specifically includes all "voting" or "consent" rights of Holder under or
related to any and all of the Loan Documents.
3. Representation and Warranties of Imagine and Guarantor. Imagine and
Guarantor, jointly and severally, make the following representations and
warranties to Holder, each of which is true and correct on the date hereof,
shall remain true and correct to and including the Note Closing, shall be
unaffected by any investigation hereinafter made by Holder, and shall survive
the closing of the transactions provided for herein:
(a) Imagine and Guarantor are each corporations duly organized, validly
existing and in good standing under the laws of Delaware with full corporate
power and authority to carry on their respective business as now conducted and
to consummate the
2
transactions contemplated by this Agreement. Imagine and Guarantor have full
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of Imagine and Guarantor in accordance with its terms.
(b) Imagine and Guarantor have previously delivered to Agent copies
of (1) the audited financial statements of Guarantor, prepared on a
consolidating and consolidated basis, for the year ended September 30, 1999,
(the "Audited Financial Statements") and the unaudited interim financial
statements of Guarantor, dated September 30, 2000 (the "Interim Financial
Statement") ("The Audited Financial Statement and the Interim Financial
Statement are collectively referred to herein as the "Financial Statements").
The Audited Financial Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered by such statements and fairly and accurately present the
financial position of Guarantor. Since the date of the Interim Financial
Statement, Guarantor's financial condition has not deteriorated in any material
respect and Guarantor and its subsidiaries have not suffered any material
adverse change in its business, condition (financial or otherwise), results of
operations, properties or assets.
(c) Imagine has good and marketable title to the Wickes Shares, free
and clear of all liens, encumbrances, contracts, rights, options, restrictions
or assignments whatsoever. The document selling, assigning, conveying and
otherwise transferring from Imagine to Holder the Wickes Shares will grant and
transfer to Holder good and marketable title to the Wickes Shares, free and
clear of all liens, encumbrances, contracts, rights, options, restrictions and
assignments whatsoever, except for the Put/Call provisions contained in Section
8 of this Agreement. The Wickes Shares are not subject to any legend or transfer
restriction and to the best of Imagine's knowledge are duly and validly issued,
fully paid and nonassessable.
4. Representations and Warranties of Holder. Holder makes the following
representation and warranty to Imagine, which is true and correct on the date
hereof, shall remain true and correct to and including the Note Closing, shall
be unaffected by any investigation hereinafter made by Imagine, and shall
survive the closing of the transactions provided for herein;
(a) Holder is the owner and holder of the Note and the rights
assigned hereunder, free and clear of all rights, liens, security interests,
encumbrances and the like, and has not previously pledged, discounted, sold or
released any interest in the Note or rights assigned hereunder. No other party
has any rights in the Note or interest in any of Holder's interests being
assigned hereunder.
(b) To the knowledge of Holder, (i) the only principal payment on the
Note was in the amount of $5,000.00, paid to the Holder; and (ii) interest
payments totaling $298,000.00 were paid to all of the Holders during the year
2000.
3
Except for the foregoing representation and warranty, the Holder makes no
representations or warranties with respect to the Note, the Loan, the
Collateral or repayment prospects. The sale is "AS IS" and Holder does not
guarantee payment by Borrower.
5. Imagine's Deliveries at Note Closing. Imagine shall deliver, and
Guarantor shall cause Imagine to deliver, to Holder at the Note Closing, the
following documents, in each case duly executed and otherwise in proper form
(unless delivery is otherwise waived by the Agent):
(i) Cash Payment (by bank cashier's check or wire transfer of
immediately available funds, as may be requested by Holder).
(ii) A stock certificate or certificates representing the Wickes
Shares, duly endorsed for transfer or with duly executed stock
powers attached, signatures guaranteed.
(iii) Escrow Agreement in the form attached as Exhibit A hereto,
executed by Imagine.
(iv) Payment of all unpaid fees and expenses of Agent and Agent's
counsel, including without limitation the cost of publication of
notices of foreclosure sales and real estate foreclosure title
searches; provided, however, that if less than all of the
Holders agree to sell their Notes to Imagine, then Imagine's
payment of all unpaid fees and expenses of Agent and Agent's
counsel shall be treated as an advance and deducted, pro rata,
from future distributions on all notes. (The parties estimate
that such fees and expenses will be approximately $175,000.)
(v) General Release executed by Borrower in favor of Holder and
Agent in the form attached as Exhibit B.
(vi) Estoppel Agreement executed by Borrower in favor of Imagine
confirming outstanding principal balance and accrued by unpaid
interest on Note and that Note are free of counterclaims or
defenses, in form attached as Exhibit C.
6. Holder's Deliveries at Note Closing. Holder shall deliver to Imagine
at the Note Closing the following documents, in each case duly executed and
otherwise in proper form (unless delivery is otherwise waived by Imagine):
(i) The original Note, accompanied by separate "endorsement" (the
"Endorsements" referencing the Note, executed by Holder "Pay to
the Order of Imagine Investments, Inc. without recourse."
(ii) Notice of Assignment Addressed to Agent.
4
(iii) The Escrow Agreement, together with delivery to Escrow Agent of
the Wickes Shares and stock powers executed in blank to be held
pursuant to the Escrow Agreement.
(iv) Limited Release by Agent in favor of Holder, which release
shall not relieve the Holder of its obligations to indemnify
the Agent pursuant to the Credit Agreement, in the form
attached as Exhibit D.
7. Time and Location of Note Closing. The closing of the assignment of
Note (the "Note Closing") shall occur as soon as practical, but in no event more
than 15 business days from the date of this Agreement. The Parties acknowledge
that the Note Closing may be accomplished by exchange of documents by overnight
courier and telecopy. The parties acknowledge the Note Closing shall be deemed
to have occurred in Jacksonville, Florida.
8. Terms of "Call" and "Put" Upon Wickes Shares.
(a) Call. Except as otherwise provided in Section 8(c),
beginning on the Note Closing Date and ending on December 31, 2001, the Imagine
shall have the absolute, irrevocable and unconditional right and the option to
purchase the Wickes Shares (including, without limitation, all dividends,
distributions, stock splits and the like paid or received with respect of the
Wickes Shares, all of which shall be held by the Escrow Agent) from the Holder
at the Purchase Price as set forth in Section 9(a) hereof and upon the Payment
Terms set forth in Section 9(b) hereof (the "Call"). Imagine shall, if it
desires to exercise the Call, deliver to the Escrow Agent the certificate
attached as Exhibit A to the Escrow Agreement together with payment of the
Purchase Price by wire transfer to the Escrow Agent, both on or before December
31, 2001.
(b) Put. The Holder shall have the absolute, irrevocable and
unconditional right and option to require Imagine to purchase the Wickes Shares
for the Purchase Price as set forth in Section 9(a) hereof and upon the Payment
Terms set forth in Section 9(b) hereof (the "Put"). Except as otherwise provided
in Section 8(c), Holder shall, if it desires to exercise this Put, deliver at
any time on or before December 26, 200l to the Escrow Agent and Imagine the
Certificate attached as Exhibit B to the Escrow Agreement. Imagine shall be
obligated to pay the Purchase Price and close on or before December 31, 2001
unless the Put is accelerated pursuant to Section 8(c) hereof, in which case
Imagine must pay the Purchase Price and close within four (4) business days
following delivery of such accelerated Put notice.
(c) Expiration; Acceleration. The Put Option shall expire and be
of no force and effect unless the written exercise notice is delivered on or
before December 31, 2001. The Call Option shall expire and be of no force and
effect unless the written notice and payment of the Purchase Price to the Escrow
Agent has been received on or before December 31, 2001. In addition, Holder, in
its discretion, may immediately accelerate the Put (and if the Put is exercised
and Imagine fails to pay within four (4) business days) the Call shall be deemed
to be canceled) by written notice to Imagine,
5
Guarantor and Escrow Agent in the event that Imagine or Guarantor (i)
voluntarily files a petition under any chapter of the Bankruptcy Code; (ii) is
subject to an involuntary bankruptcy which is not dismissed within 60 days; or
(iii) commences an assignment for the benefit of creditors or similar insolvency
proceeding.
(d) Time is of the Essence. Time is of the essence for exercise
of the Put and Call and Payment of the Purchase Price.
(e) Guarantee by Guarantor. Guarantor hereby unconditionally and
irrevocably guarantees the payment and performance of Imagine under the Put/Call
option, including without limitation the timely payment of the Purchase Price,
including any increase in the Purchase Price following default and collection
expenses. Imagine and Guarantor agree that if the Put or Call is exercised,
payment of the Purchase Price shall be made in full without offset, deduction,
setoff or defense of any kind or nature whatsoever, and the entire Purchase
Price must be paid in cash.
(f) Default Interest Rate. In the event the Put or Call is
exercised and Imagine fails to pay to Holder the Purchase Price when due, the
amount due shall be increased by eighteen percent interest per annum, accruing
on a daily basis, until actually paid.
9. Purchase Price and Payment Terms.
(a) Purchase Price. The "Purchase Price" shall be $5.025 per share.
The Purchase Price per Wickes Share shall increase $0.05 each calendar month
beginning March 1, 2001, until the Put/Call Closing, which $0.05 increase shall
be pro rated over the course of the month in which the Put/Call Closing occurs.
For example, if the Put/Call Closing occurs in a thirty-day month, then on the
first day of such month the Purchase Price shall be the Purchase Price as of the
end of the prior month plus $0.00167, and if the Put/Call Closing occurs on the
thirtieth day of such thirty-day month, then the Purchase Price shall be the
Purchase Price as of the end of the prior month plus $0.05. The amount of the
Purchase Price shall be calculated by multiplying the number of Wickes Shares
initially deposited in escrow by the appropriate Purchase Price per share (based
on the month). The Purchase Price shall not be adjusted for stock splits,
dividends or distribution with regard to the Wickes Shares. The Purchase Price
shall be paid by wire transfer of immediately available Funds.
(b) Payment Terms. The Purchase Price shall be due and payable by
Imagine to Holder entirely in immediately available funds at the time of
delivery to Escrow Agent of the Call Notice or within four business days
following delivery of the Put Notice, which Put Notice may be delivered at any
time before December 26, 2001, provided that in no event shall the Purchase
Price be due and payable before December 26, 2001, except in the event of
acceleration as provided in Section 8(c) hereof. Payment shall be by wire
transfer of immediately available Funds to the Escrow Agent, for the account of
Holder (the "Payment Terms").
6
(c) No Sales. Until the Put/Call Closing or January 2, 2001 (whichever
occurs first), Holder shall not sell, or offer for sale, any of the Wickes
Shares or sell or offer for sale to Imagine in accordance with the Call or Put
rights set forth in this Assignment any sale which is expressly subject to the
Put/Call option and proxy and in which the Holder expressly agrees to be bound
by this Agreement and the Escrow Agreement and deliver documentation reasonably
acceptable to Escrow Agent and Imagine. Holder acknowledges that in any such
sale, the certificate shall not be delivered to the Holder until expiration of
the Put/Call and no such Put or Call being exercised.
(d) Closing in Third Party's Name. In the event the Put or Call is
exercised, Imagine may cause the purchase to be closed in the name of a third
party purchaser designated by Imagine, provided that Imagine and Guarantor shall
not be directly and primarily liable for the payment of the Purchase Price to
Holder and any assignment shall not release Imagine or Holder from any
obligations under this Agreement.
10. Imagine's Grant of Proxy. Effective at the Note Closing and
termination December 31, 2001 (or the earlier exercise of the Put/Call option),
Holder grants Imagine an irrevocable proxy, coupled with an interest, to vote
the Wickes Shares and to any successor proxies to vote the Wickes Shares.
11. Further Acts. Holder agrees that the Holder will, at any time, and
from time to time, after the date hereof, upon the request of Imagine, do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such future acts, assignments, transfers,
conveyances, documents and assurances, as may be requested to complete the
transactions contemplated herein.
12. Counterparts and Facsimile. This Assignment, and any other documents
referenced herein, may be executed by counterparts, and by signatures to
documents transmitted by facsimile, and all such facsimile signatures and
counterparts shall be deemed original signatures binding on the parties.
13. Binding Effect. This Assignment shall be binding upon and inure to
their respective heirs, personal representatives, successors and assigns of
Holder and Imagine.
14. Law Governing Agreement. This Agreement shall be governed, construed
and interpreted according to the internal laws of the State of Florida,
excluding any choice of law rules that may direct the application of the laws of
another jurisdiction.
15. Submission to Jurisdiction.
(a) ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS ARISING OUT OF
THIS AGREEMENT AND THE TRANSACTIONS ARISING FROM THIS AGREEMENT SHALL BE
BROUGHT IN FLORIDA STATE COURT IN JACKSONVILLE, FLORIDA OR UNITED STATES
FEDERAL DISTRICT COURT SITTING IN THE STATE OF FLORIDA IN JACKSONVILLE,
FLORIDA AND EACH PARTY HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE
JURISDICTION OF
7
SUCH COURTS FOR THE PURPOSE OF SUCH SUITS, LEGAL ACTIONS OR PROCEEDINCS. IN
ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING, EACH PARTY WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE
THEREOF MAY BE MADE BY CERTIFICATE OR REGISTERED MAIL DIRECTED TO IT AT ITS
ADDRESS SET FORTH BELOW. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUCH SUIT, LEGAL ACTION OR
PROCEEDING IN ANY SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY
SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. ASSIGNEE AND GUARANTOR ACKNOWLEDGE AND AGREE THAT
THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN JACKSONVILLE,
FLORIDA AS AN ESSENTIAL, SEPARATELY BARGAINED FOR, TERM OF THIS AGREEMENT.
(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THE WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
16. Notice. All notices, requests, demands and other communications
hereunder shall be given in writing and shall be: (a) personally delivered; (b)
sent by telecopier, facsimile transmission or other electronic means of
transmitting written documents; or (c) sent to the parties at their respective
addresses indicated herein by registered or certified U.S. mail, return receipt
requested and postage prepaid, or by private overnight mail courier service. The
respective addresses to be used for all such notices, demands or requests are as
follows:
(a) If to Holder, to the address set forth on the signature page
hereto;
8
(with a copy to)
Xxxxxxxx X. Xxxxxx, Esq.
000X Xxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
(and with a copy to)
Xxxxxxx X. Xxxxx, Esq.
Xxxxx & Lardner
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other person or address as Holder shall furnish to Imagine and
Guarantor in writing.
(b) If to Imagine, to:
Imagine Investments, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
(with a copy to)
Xxxxxxx Xxxxxxxxx, Esquire
Xxxxxxxxx Doll & XxXxxxxx PLLC
3300 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
or to such other person or address as Imagine shall furnish to Holder and
Guarantor in writing.
9
(c) If to Guarantor, to:
Stone Holdings, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxx
Facsimile: (000) 000-0000
(with a copy to)
Xxxxxxx Xxxxxxxxx, Esquire
Xxxxxxxxx Doll & XxXxxxxx PLLC
3300 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
or to such other person or address as Guarantor shall furnish to Holder and
Imagine in writing.
If personally delivered, such communication shall be deemed delivered upon
actual receipt; if electronically transmitted pursuant to this paragraph, such
communication shall be deemed delivered the next business day after transmission
(and sender shall bear the burden of proof of delivery); if sent by overnight
courier pursuant to this paragraph, such communication shall be deemed delivered
upon receipt; and if sent by U.S. mail pursuant to this paragraph, such
communication shall be deemed delivered as of the date of delivery indicated on
the receipt issued by the relevant postal service, or, if the addressee fails or
refuses to accept delivery, as of the date of such failure or refusal. Any party
to this Agreement may change its address for the purposes of this Agreement by
giving notice thereof in accordance with this Section.
17. Costs of Litigation. The parties agree that the prevailing party in any
action, proceeding or litigation (including bankruptcy) brought with respect to
or to enforce any right or remedy under this Agreement (including without
limitation the Put and Call and enforcement of the Guarantor's obligations)
shall be entitled to recover from the other party or parties all reasonable
costs and expenses of any nature whatsoever incurred by the prevailing party in
connection with such action, including without limitation attorneys' fees and
prejudgment interest.
18. Entire Agreement. This instrument embodies the entire agreement between
the parties hereto with respect to the transactions contemplated herein, and
there have been and are no agreements, representations or warranties between the
parties other than those set forth or provided for herein. All negotiations are
merged into this Agreement.
10
19. Construction. Each of the parties to this Agreement has participated
equally in the drafting of this Agreement and this Agreement shall not be
construed against any party on the basis of the Agreement having been drafted by
such party. The language used in this Agreement shall by deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any person.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. Survival of Representation and Warranties. The representations,
warranties, covenants and undertakings contained in this Agreement shall survive
Closing and the consummation of the transactions contemplated herein.
22. Headings. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. Consent to Agent's Resignation. Holder and Imagine hereby consent to
Agent's resignation pursuant to Section 13.8 of the Credit Agreement, if Agent
deems such resignation appropriate in Agent's sole discretion, and Imagine
further hereby waives all notice requirements of Section 13.8 of the Credit
Agreement.
24. Glossary of Terms. The following sets forth the location of definitions
of capitalization terms defined in the body of this Agreement:
Call - Section 8(a)
Cash Payment - Section 1
Consideration - Section 1
Note Closing - Section 7
Payment Terms - Section 9(b)
Purchase Price - Section 9(a)
Put - Section 8(b)
Wickes Shares - Section 1
Where any group or category of items or matters is defined collectively in
the plural number, any item or matter within such definition may be referred to
using such defined term in the singular number.
25. Entire Agreement. This instrument embodies the entire agreement
between the parties hereto with respect to the transactions contemplated herein,
and there have been and are no agreements, representations or warranties among
the parties other than those set forth or provided for herein or in the
documents described herein.
11
IN WITNESS WHEREOF, this Assignment has been executed by the parties hereto
as of the day, month and year first above written.
By:_________________________________
Name:
Title
Address:
Imagine Investments, Inc.
By: _________________________________
("Imagine")
_________________________)
) SS:
_________________________)
The foregoing instrument was acknowledged before me on this day of
___________, 2001 by ___________________________.
_____________________________________
Notary Public
My Commission Expires:
12
