Exhibit 10.6
Execution Copy
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of July 30, 2003, is
entered into by and between FirstPlus Financial Group, Inc., a Nevada
corporation ("Assignor"), and Class Representative Xxxxxx X. Xxxxxxx, III, on
behalf of all Class Members (the "Assignee") and Xxxxxxx Xxxxx Xxxxxxx Xxxxx &
Xxxxxx LLP and Sirota and Sirota LLP, each solely in its capacity as Plaintiffs'
Co-Lead Counsel and supervisor of the administration of the Settlement.
RECITALS
WHEREAS, Assignor is the beneficial holder of 2,200 Common Units of
Capital Lending Strategies, LLC ("Capital Lending"), a Texas limited liability
company governed by the Amended and Restated Regulations of CL Capital Lending,
LLC, dated February 11, 2003 and amended by that certain First Amendment to
Amended and Restated Regulations of CL Capital Lending, LLC, dated as of April
29, 2003 (together, and as may be amended, modified or supplemented from time to
time, the "Regulations").
WHEREAS, Assignor is party to that certain Stipulation and Agreement of
Settlement dated as of July 30, 2003 (the "Stipulation") related to the court
action entitled In re: FirstPlus Financial Group, Inc. Securities Litigation,
No. 3:98-CV-2551-M (the "Action").
WHEREAS, the Stipulation provides that Assignor will assign the
Certificate to Assignee, subject to the Escrow Agreement and the Stipulation, as
part of the Settlement Fund.
WHEREAS, pending the transfer of the Certificate, Assignor desires to
assign to Assignee all of its right, title and interest to any distribution of
cash or property from Capital Lending as described herein.
WHEREAS, Capital Lending, Assignee and Plaintiffs' Co-Lead Counsel have
entered into that certain Escrow Agreement, dated as of the date hereof (the
"Escrow Agreement").
WHEREAS, Capital Lending, Assignee and Plaintiffs' Co-Lead Counsel have
entered into that certain Registration Rights Agreement, dated as of the date
hereof (the "Registration Rights Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, in accordance with the provisions of
applicable law, the parties hereby agree as follows (Initial capitalized terms
not defined in this Agreement will have meanings ascribed to such terms in the
Stipulation):
AGREEMENT
1. Assignment.
(a) Effective solely upon the receipt by Assignor of written
notice from Capital Lending informing Assignor that Capital Lending has received
notice from the U.S. Securities and Exchange Commission informing Capital
Lending of the effectiveness of a registration statement under the Securities
Act of 1933, as amended, covering the distribution of Registrable Securities (as
defined in the Registration Rights Agreement) to the Holders (as defined in the
Registration Rights Agreement), Assignor hereby assigns, transfers and delivers
Certificate No. 002 representing 580 Common Units of Capital Lending (the "LLC
Interest") to Assignee, on behalf of the Authorized Claimants as part of the
Settlement Fund, including all related rights of Assignor under the Regulations
free and clear of liens, claims, charges, encumbrances, restrictions, and voting
agreements (except as otherwise set forth in the organizational documents of
Capital Lending, agreements between Capital Lending and the holders of the
common equity securities of Capital Lending or the Stipulation and the other
agreements, instruments or other documents delivered pursuant to the
Stipulation).
(b) Upon execution of this Agreement, Assignor shall deliver
to the Escrow Agent, on behalf of the Authorized Claimants as part of the
Settlement Fund, in accordance with the written instructions of the Escrow Agent
to be delivered by the Escrow Agent to Assignor as soon as practicable after the
date of this Agreement, the Certificate endorsed in blank, medallion signature
guaranteed or accompanied by duly executed assignment documents to be held by
the Escrow Agent in escrow pending (i) a distribution of Registrable Securities
pursuant to the Registration Rights Agreement and the Stipulation or (ii) the
Repurchase described in Section 5 below.
(c) Assignor hereby assigns, transfers and delivers to
Assignee, on behalf of the Authorized Claimants as part of the Settlement Fund,
all of its right, title and interest to any distribution of cash or property
from Capital Lending with respect to the LLC Interest in accordance with Section
7.3 and/or Section 7.4 of the Regulations (each, an "Assigned Distribution") to
the extent the amount of such Assigned Distribution exceeds the amount of taxes
payable by Assignor on the amount of income allocable to Assignor with respect
to the LLC Interest for the fiscal quarter for which such Tax Distribution (as
defined in the Regulations) were made.
2. Assumption and Acceptance. Assignee hereby accepts the foregoing
assignments and assumes the obligations of Assignor under the Regulations
relating thereto, to the extent applicable, and agrees to be bound by the terms
of the Regulations.
3. Termination or Failure of Settlement. If the Settlement is
terminated or fails to become effective for any reason, Assignee shall deliver
to Assignor the Certificate endorsed in blank or accompanied by duly executed
assignment documents and all right, title and interest in the Certificate and
the LLC Interest represented thereby, including all right, title and interest to
Assigned Distributions, shall revert back to, and vest in, Assignor immediately
upon such termination or failure of the Settlement.
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4. Regulations. Assignor and Assignee agree that the LLC Interest and
any Assigned Distribution is subject to and bound by the terms of the
Regulations and the Stipulation.
5. Repurchase.
(a) In the event that the Escrow Agent has not received a
written notice stating that a registration statement relating to the
distribution of Registrable Securities to the Authorized Claimants has been
declared effective by the U.S. Securities and Exchange Commission on or before
the seven year anniversary date of this Agreement, then the Plaintiffs' Co-Lead
Counsel, in their sole discretion, may cause Assignor to repurchase (the
"Repurchase") all but not less than all of the LLC Interest, including all
right, title and interest to the Assigned Distributions (together, the
"Repurchase Interest") for the price determined in accordance with Section 5(b)
below (the "Repurchase Price"). The Plaintiffs' Co-Lead Counsel shall jointly
give Assignor 90 days' prior written notice of exercise (the "Repurchase
Notice"). The Company shall pay to the Plaintiffs' Co-Lead Counsel, as Escrow
Agents under the Stipulation, the Repurchase Price on the 91st day following
written notice of exercise to be applied to the Settlement Fund pursuant to the
Stipulation.
(b) The Repurchase Price shall be as determined by Assignor
and the Plaintiffs' Co-Lead Counsel. If the parties cannot agree as to the
Repurchase Price, the Repurchase Price shall be the fair market value of the
Repurchase Interest determined by an independent appraiser or investment banker
selected jointly by the parties. The Plaintiffs' Co-Lead Counsel, solely in
their capacity as supervisors of the administration of the Settlement pursuant
to paragraph 12 of the Stipulation, agree to cause the Settlement Fund to pay
the costs of such valuation or appraisal.
6. Address for Distributions and Notifications. Assignor and Assignee
hereby instruct the Manager to henceforth send all Assigned Distributions to
Assignee, on behalf of the Authorized Claimants as part of the Settlement Fund,
in accordance with the written instructions of Plaintiffs' Co-Lead Counsel to be
delivered by Plaintiffs' Co-Lead Counsel to the Manager as soon as practicable
after the date of this Agreement.
7. Further Assurances. Assignor hereby agrees to execute and deliver
such further documents and instruments of conveyance and transfer and to take
such other action as Assignee may reasonably request to effectively convey and
transfer to Assignee any of the rights, interests or documents intended to be
transferred and assigned hereby. In addition, Assignor hereby agrees to deliver
to Assignee any certification or other documentation regarding the calculation
or payment of the Assigned Distributions.
8. Binding Effect. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto, their
respective successors and assigns.
9. Governing Law. The internal substantive laws, and not the laws of
conflicts, of the State of Texas shall govern the enforceability and validity of
this Agreement, the construction of its terms and the interpretation of the
rights and duties of the parties. The Court
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in the Action shall have continuing jurisdiction over the parties hereto for the
purpose of construing and enforcing this Agreement.
10. Entire Agreement. This Agreement and the documents delivered
pursuant to this Agreement embody the entire agreement and understanding of the
parties hereto in respect of the transactions contemplated by this Agreement.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute but one agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, this Assignment and Assumption Agreement has been
executed as of the day and year first written above.
FIRSTPLUS FINANCIAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------
Title: CEO
--------------------------------
Address for Notices:
0000 X. X'Xxxxxx Xxxx.
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: 214.231.7602
/s/ Xxxxxx X. Xxxxxxx, III
--------------------------
CLASS REPRESENTATIVE XXXXXX X. XXXXXXX, III
Address for Notices:
c/o Xxxxxxx Xxxxx Xxxxxxx Xxxxx &
Lerach LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx, Esq.
Telecopy No.: 619.231.7423
XXXXXXX XXXXX XXXXXXX XXXXX & XXXXXX LLP,
as Plaintiffs' Co-Lead Counsel and
Supervisor of the Administration of the
Settlement
By: /s/ Joy Xxx Xxxx
--------------------------------
Name: Joy Xxx Xxxx
--------------------------------
Title: A Member of the Firm
--------------------------------
Address for Notices:
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx, Esq.
Telecopy No.: 619.231.7423
SIROTA & SIROTA LLP,
as Plaintiffs' Co-Lead Counsel and
Supervisor of the Administration of the
Settlement
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------
Title: Partner
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Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopy No.: 212.425.9093
