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EXHIBIT 10.21
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of December 31, 1998 (this "AGREEMENT"),
by and between Nextera Funding, Inc. ("ASSIGNOR") and Knowledge Universe, Inc.
("ASSIGNEE").
W I T N E S S E T H :
WHEREAS, Assignor is party to the Securities Purchase Agreement, dated
as of August 31, 1998, (as it may be from time to time amended, supplemented or
otherwise modified, the "PURCHASE AGREEMENT"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and between
Nextera Enterprises, L.L.C. and Nextera Funding, Inc.; and
WHEREAS, Assignor desires to sell and assign to Assignee, and Assignee
desires to purchase and assume from Assignor, certain rights and obligations of
Assignor under the Purchase Agreement.
NOW, THEREFORE, in consideration of the agreements and covenants herein
contained, the parties hereto agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION
Subject to the terms and conditions hereof, as of the date hereof,
Assignor sells and assigns to Assignee, without recourse, representation or
warranty (except as expressly set forth herein), and Assignee purchases and
assumes from Assignor, the dollar amount of the Commitment specified on Schedule
I in all of the rights and obligations with respect to the commitments specified
in Section 2.1 of the Purchase Agreement and the other Financing Documents (the
"ASSIGNED SHARE"). In consideration of such assignment, Assignee hereby agrees
either to pay to Assignor or fund directly to Nextera Enterprises, Inc. on the
date hereof the principal amount of any outstanding commitments included within
the Assigned Share (such principal amount referred to herein as the "PURCHASE
PRICE"), such payment to be made by wire transfer of immediately available
funds. Upon the date hereof: (a) the Assignee shall have the rights and
obligations of a "Holder" to the extent of the Assigned Share and shall
thereafter be a party to the Purchase Agreement and a "Holder" for all purposes
of the Financing Documents; Assignor shall, to the extent of the Assigned Share,
relinquish its rights and be released from its obligations under the Purchase
Agreement. It is understood and agreed that Purchaser shall constitute the
"Majority Holder" for all purposes of the Purchase Agreement and the Financing
Documents.
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SECTION 2. CONDITIONS TO EFFECTIVENESS
Notwithstanding anything herein to the contrary, this Assignment
Agreement shall not be deemed to be effective until each of the following
conditions are satisfied, as determined in the reasonable judgment of the
Assignor: (I) the execution of a counterpart hereof by each of Assignor and
Assignee; (II) the payment of the Purchase Price; (III) Assignor shall have
received originally executed copies of one or more favorable opinions of counsel
for Assignee, in form and substance satisfactory to Assignor, dated as of the
date hereof with respect to, among other things, the enforceability, validity
and binding effect of this Assignment Agreement.
SECTION 3. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS
(a) Assignor represents and warrants to Assignee that Assignor is the
legal and beneficial owner of the Assigned Share, free and clear of any adverse
claim.
(b) Assignee represents and warrants to Assignor that it has acquired
the Assigned Share for its own account in the ordinary course of its business
and without a view to distribution of the Notes within the meaning of the
Securities Act or the Exchange Act or other federal securities laws; it has
received, reviewed and approved a copy of the Purchase Agreement (including all
Exhibits and Schedules thereto); and it has received from Assignor such
financial information regarding Company and its Subsidiaries as is available to
Assignor and as Assignee has requested, that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the assignment evidenced by this Agreement, and
that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. Assignor shall have no duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Assignee or to provide Assignee
with any other credit or other information with respect thereto, whether coming
into its possession before the making of the Initial Takedown or at any time or
times thereafter, and Assignor shall not have any responsibility with respect to
the accuracy of or the completeness of any information provided to Assignee.
(c) Each party to this Agreement represents and warrants to the other
party hereto that it has full power and authority to enter into this Agreement
and to perform its obligations hereunder in accordance with the provisions
hereof, that this Agreement has been duly authorized, executed and delivered by
such party and that this Agreement constitutes a legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms, except as enforceability
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may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and by general
principles of equity.
(d) Assignor shall not be responsible to Assignee for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Financing Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of Company or any of its Subsidiaries to Assignor or Assignee in
connection with the Financing Documents and the transactions contemplated
thereby or for the financial condition or business affairs of Company or any
other Person liable for the payment of any obligations, nor shall Assignor be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Financing Documents or as to the use of the proceeds of the Notes or as to
the existence or possible existence of any Event of Default or Default.
SECTION 4. MISCELLANEOUS
Assignor and Assignee each agrees from time to time, upon request of
such other party, to take such additional actions and to execute and deliver
such additional documents and instruments as such other party may reasonably
request to effect the transactions contemplated by, and to carry out the intent
of, this Agreement. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party (including, if applicable, any party required to evidence its consent
to or acceptance of this Agreement) against whom enforcement of such change,
waiver, discharge or termination is sought. Any notice or other communication
herein required or permitted to be given shall be given pursuant to Section 9.1
of the Purchase Agreement, and all for purposes thereof, the notice address of
Assignee shall be the address as set forth on Schedule I. In case any provision
in or obligation under this Agreement shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns. This Agreement may be
executed in one or more counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
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THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the Effective Date by their respective
officers thereunto duly authorized.
KNOWLEDGE UNIVERSE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
NEXTERA FUNDING, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
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SCHEDULE I TO
ASSIGNMENT AGREEMENT
1. Assigned Share: $37,500,000
2. Assignee Notice Instructions:
Knowledge Universe, L.L.C.
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
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