Exhibit 7.20
FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
(Investment Property)
THIS FIRST AMENDMENT TO SECURITY AGREEMENT is made as of September 15,
2000 between:
RIVERSIDE GROUP, INC.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
(the "Debtor")
and
XXXXXXXX X. XXXXXX,
as agent for the Holders (as defined below)
000-X Xxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
(the "Secured Party")
Recitation of Facts
The Debtor is obligated to the holders (together with their successors
and assigns, and persons who may later become holders, called "Holders") of
certain secured 11% Promissory Notes dated as of April 1, 1999 (as they may be
renewed or modified, called the "Notes") issued pursuant to a Credit Agreement
of even date herewith (as it may be modified called the "Credit Agreement") by
and among the initial Holders, the Secured Party and the Debtor. The Notes, the
Credit Agreement and all present and future obligations of the Debtor to the
Holders or the Secured Party of whatever nature, liquidated or contingent,
incurred in connection with the Notes, the Credit Agreement, this Agreement or
other Transaction Documents, as they may be modified or extended, are herein
called the "Indebtedness." In connection therewith, the Debtor and the Secured
Party executed a Security Agreement dated as of April 1, 1999 (the "Original
Agreement") whereby the Debtor granted the Secured Party a security interest in
certain collateral of the Debtor. The Debtor is currently in default on the
Notes and in consideration of the Holders agreement to forbear until December
31, 2000 pursuant to a Forbearance Agreement made as of May 8, 2000 and amended
as of August 14, 2000 (as amended, the "Forbearance Agreement"), the Debtor
wishes to amend the Original Agreement to grant to the Holders an additional
security interest in 3,119,067 shares of the common stock of Buildscape, Inc.
(the "Buildscape Shares").
Agreement
IN CONSIDERATION of the mutual benefits contained herein and to induce
the Holders to extend credit constituting indebtedness secured hereby, the
parties hereto agree as follows:
1. Definitions. The preceding defined terms and following terms shall
be added to Section 1 of the Original Agreement:
"Imagine Collateral" means the first priority lien in the
Buildscape Shares granted to Imagine Investments, Inc.
"Imagine Collateral Documents" means the documents evidencing
the lien of Imagine in the Buildscape Shares.
"Transaction Documents" means (a) this Agreement, (b) any
Control Agreement, (c) the Notes, (d) the Credit Agreement and all other
Collateral Documents, as defined in the Credit Agreement, and (e) the
Forbearance Agreement.
All terms used herein which are not otherwise defined herein shall have the same
meaning as is ascribed to them in the Original Agreement.
2. Warranties of Debtor. The Debtor represents and warrants to
the Secured Party that: the warranties of the Debtor contained in the original
Agreement or delivered in connection with the Original Agreement continue to be
true and correct in all material respects as of the date hereof. The Debtor
further represents and warrants to the Secured Party that, except as otherwise
described in the Forbearance Agreement, the Debtor is in full compliance with
the covenants and agreements of the Debtor set forth in the Credit Agreement,
the Original Agreement, and the other Collateral Documents.
3. Securities. Sections 6(a) and 6(b) of the Original Agreement
is amended and restated in its entirety as follows:
6. Securities. If any part of the Collateral is
Securities, the following provisions shad apply:
(a) Voting Rights. Debtor irrevocably constitutes and
appoints Secured Party, whether or not the Securities have
been transferred into the name of Secured Party or its
nominee, as Debtor's proxy with full power (subject to any
prior right of AFL as to AFL Collateral and subject to any
prior right of Imagine Investments, Inc. as to the Imagine
Collateral) to:
(i) attend all meetings of securities holders
of the Issuer held after the date of this
Agreement and to vote the Securities at
those meetings in such manner as Secured
Party shall in its sole discretion deem
appropriate, including without
limitation, in favor of liquidation of
the Issuer;
(ii) to consent in the sole discretion of
Secured Party to any action by or
concerning the Issuer for which the
consent of the securities holders of the
Issuer is or may be necessary or
appropriate; and
(iii) without limitation to do all things which
Debtor could do as a security holder of
the Issuer, giving to Secured Party full
power of substitution and revocation.
Notwithstanding the foregoing, Debtor alone shall have the
rights under this paragraph and Secured Party may not exercise
those rights (whether or not the Securities have been
transferred into the name of the Secured Party or its
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nominee) so long as no Event of Default has occurred and is
continuing. The proxy contained in this paragraph shall
terminate when this Agreement terminates as provided
hereafter. Except to the extent otherwise provided in the AFL
Collateral Documents, the Intercreditor Agreement, or the
Imagine Collateral Documents, Debtor hereby agrees not to give
or permit to exist any other proxies in derogation of this
proxy so long as this Agreement is in force.
(b) Transfer of Record. After the occurrence and during
the continuance of an Event of Default and subject to the
prior rights of AFL as to AFL Collateral, and the prior rights
of Imagine Investments, Inc. as to the Imagine Collateral,
Debtor authorizes and appoints Secured Party, as Debtor's
attorney-in-fact to transfer all or any part of the
Instruments into Secured Party's name or that of its nominee
so that Secured Party or its nominee may appear of record or
on the records of any securities intermediary as the sole
owner of the Instruments. After the occurrence and during the
continuance of any Event of Default, Debtor waives all rights
to be advised or to receive any notices, statements or
communications received by Secured Party or its nominee as
such record owner, and agrees that no proxy or proxies issued
by Secured Party to Debtor or its designee shall thereafter be
effective.
4. Exhibits.
(a) Exhibit A of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
EXHIBIT A
(a) 2,002,337 shares of Wickes, Inc. common stock ("Wickes
Shares") represented by certificates W0212, W0476, W0479-485,
W0486, W0933, and W1049, as such certificates may now or
hereafter be exchanged for new certificates, it being the
intent of this agreement to pledge all Wickes Shares subject
to the prior pledge to AFL.
(b) 10,000,000 shares of Xxxxxxxxx Technologies Corporation
common stock ("Xxxxxxxxx Shares") represented by certificates
GL2027-GL2045, less any Xxxxxxxxx Shares previously sold in
compliance with this Agreement or the Forbearance Agreement.
(c) 3,119,067 shares of Buildscape, Inc. common stock
represented by certificate no. 5 ("Buildscape Shares").
(b) Exhibit B of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
EXHIBIT B
The pledge of security interest of American Founders Life
Insurance Company, or its successors or assigns, in the Wickes
Shares described on Exhibit A and all identifiable proceeds
thereof as provided in the AFL Collateral Documents.
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The Imagine Rights as to the Wickes Shares.
The pledge of a security interest to Imagine Investments, Inc.
in the Buildscape Shares described on Exhibit A and all
identifiable proceeds thereof as provided in the Imagine
Collateral Documents, to the extent of a maximum aggregate
principal amount of $2,400,000.00.
5. Additional Covenant. The Debtor hereby covenants and agrees
that it shall not permit the debt secured by the Imagine Collateral to exceed
$2.4 million in principal amount and that it shall cause Imagine to acknowledge
writing that the priority its lien in the Buildscape Shares is senior to that of
in the Secured Party only to the extent of a principal balance not to exceed
$2.4 million.
6. Ratification. Subject to the provisions in this Agreement, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects.
7. No Novation. Nothing in this First Amendment or in any
documentation executed in connection therewith shall be deemed to be a novation
of the obligations of the Debtor under the Credit Agreement or any related
documents referred to therein.
IN WITNESS WHEREOF, the parties have executed this instrument as of
the date first stated above.
DEBTOR
RIVERSIDE GROUP, INC.
/s/ Xxxxxx X. Xxxxx
By _________________________________________
Its Authorized Signer
SECURED PARTY
____________________________________________
Xxxxxxxx X. Xxxxxx, as agent for the Holders
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ABOVE SPACE RESERVED FOR RECORDING DATA
After Recording Please Return to:
XXXX X. XXXXX, XX., Attorney
Xxxxx & Lardner
000 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxxxx, XX 00000-0000
MODIFICATION TO DEED TO SECURE DEBT AND SECURITY AGREEMENT
This Modification to Deed to Secured Debt and Security Agreement
("Agreement") is made as of the 15 day of September, 2000, by and between
RIVERSIDE GROUP, INC. (the "Grantor") and XXXXXXXX X. XXXXXX, as Agent for the
Holders, as hereafter defined (the "Grantee").
Recitation of Facts
A. The Grantor, as borrower, is obligated to the holders of certain
secured 11 Promissory Notes dated as of April 1, 1999 (as they have been or may
be renewed or modified, called the "Notes") issued pursuant to a Credit
Agreement dated as of April 1, 1999 (the "Credit Agreement") by and among the
holders, the Grantee and the Grantor.
B. The Notes and the obligations of the Grantor to the holder and/or
the Grantee under the Credit Agreement and other Collateral Documents as defined
in the Credit Agreement, are secured by, among other Collateral, a mortgage lien
on and security interest in certain real and personal property described in the
Deed to Secured Debt and Security Agreement from the Grantor to the Grantee
dated as of April 1, 1999 and recorded in Deed Book 12837, Page 470, public
records of Xxxx County, Georgia (the "Security Deed").
C. The Grantor is in default under the Notes and the Credit Agreement.
The Grantor and the Grantee have executed a Forbearance Agreement dated as of
May 8, 2000 and amended as of August 14, 2000 (as amended, the "Forbearance
Agreement") pursuant to which the Grantee has agreed not to exercise certain
remedies available to it, subject to the terms and conditions contained in the
Forbearance Agreement (the "Forbearance Agreement").
D. The parties hereto wish to provide record notice of the Forbearance
Agreement and certain provisions contained therein.
Agreement
In consideration of the mutual agreements contained herein and for
other good and valuable consideration and to induce the Grantee to enter into
the Forbearance Agreement, the parties hereto agree as follows:
1. Definitions. The capitalized terms used herein shall have the
meanings ascribed to them in the Security Deed unless other meanings are set
forth herein.
2. Obligation. Pursuant to the Forbearance Agreement, the Grantor has
agreed, among other things, to make certain payments under the Notes, to
increase the interest rate of the Notes from 11 % to 17% per annum and to limit
certain payments to officers and Affiliates and to grant the Holders a lien or
certain shares of stock as additional collateral. The term "Obligation," as used
in the Security Deed, shall mean the present and future obligations of the
Grantor under the Notes, the Credit Agreement, and the Forbearance Agreement,
and all present and future obligations of the Grantor to the Holders or the
Grantee of whatever nature, liquidated or contingent, incurred in connection
with the Notes, the Credit Agreement, the Forbearance Agreement, this Agreement,
the Security Deed, or any other Collateral Documents, as defined in the Credit
Agreement, as modified by the Forbearance Agreement and as they may be further
modified or extended.
3. Representations. The Grantor hereby represents and warrants to the
Grantee and the Holders that there are no liens, encumbrances or claims against
the Secured Debt Property other than Permitted Encumbrances and that all other
representations and warranties of the Grantor contained in the Security Deed are
true and correct in all material respects as of the date hereof.
4. No Novation. The parties hereto agree that nothing herein or in the
forbearance agreement, or otherwise, is intended to constitute a novation of the
Security Deed or the Obligation secured by the Security Deed or to impair
perfection or priority of any lien or security interest presently securing the
obligation.
5. Ratification. The Grantor hereby represents to the Grantee that it
has no defenses, counterclaims, offsets or claims against the Grantee in any way
relating to the Notes, the Credit Agreement, the Forbearance Agreement, or the
Security Deed or relating to the administration of the loan evidenced by the
Notes, and to the extent the Grantor has or has had any defense, counterclaim,
offset or claim, the Grantor does hereby release and waive them in consideration
of the additional extension of credit and renewal set forth herein. The Grantor
hereby further represents and warrants that the representations and warranties
contained in the Credit Agreement and the Security Deed are true and correct as
of the date hereof. The Grantor acknowledges that the provisions of this
paragraph have been separately bargained for and are a principal inducement to
the Grantee to enter into this agreement.
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
7. Benefit. This Agreement shall benefit and bind the parties hereto
and their successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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Signed, sealed and delivered in
the presence of: RIVERSIDE GROUP, INC.
/s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxx
_____________________________________ Print name_____________________________
Xxxxx Xxxxx
Print name___________________________ _______________________________________
/s/ Xxxx X. Xxxxxx Xxxxxx X. Xxxxx
_____________________________________ Print name_____________________________
Xxxx X. Xxxxxx Authorized Signer
Print name___________________________ Its____________________________________
Post office address of executing party.
0000 Xxxxxxx Xxxxxxx, Xxx. 000
Xxxxxxxxxxxx, Xxxxxxx 00000
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STATE OF FLORIDA
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this 15th day of
September, 2000, by Xxxxxx X. Xxxxx, the Authorized Xxxxxx of Riverside Group,
Inc., a Florida corporation, on behalf of the corporation. Such person (notary
must check applicable box) [X] is/are personally known to me; or [_] produced a
current Florida driver's license as identification; or [_] produced
_______________________ as identification.
/s/ Xxxxx X. Xxxxx
[Affix Notary Seal] _________________________________________
Xxxxx X. Xxxxx
_________________________________________
[Print or type name]
Notary Public, State of Florida at Large
Commission No. __________________________
My Commission Expires:___________________
___________________________________________
XXXXXXXX X. XXXXXX, as Agent for the
__________________________________ Holders
Print name________________________
__________________________________
Post office address of executing party.
Print name________________________ 000-X Xxxxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
XXXXX XX XXXXXXX
XXXXXX OF XXXXX
The foregoing instrument was acknowledged before me this ____ day of
September, 2000, by Xxxxxxxx X. Xxxxxx, as _________________________________,
the ___________________ of Riverside Group, Inc., a Florida corporation, on
behalf of the corporation. Such person (notary must check applicable box) [_]
is/are personally known to me; or [_] produced a current Florida driver's
license as identification; or [_] produced _______________________ as
identification.
[Affix Notary Seal] _________________________________________
_________________________________________
[Print or type name]
Notary Public, State of Florida at Large
Commission No.___________________________
My Commission Expires:___________________
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STOCK TRANSFER ASSIGNMENT
FOR VALUE RECEIVED, Riverside Group, Inc. does hereby sell, assign and transfer
unto _______________________________, THREE MILLION, ONE HUNDRED NINETEEN
THOUSAND SIXTY SEVEN (3,119,067) shares of the capital stock of Buildscape, Inc.
standing in such transferor's name on the books of said Company represented by
Certificate No. 5 herewith and does hereby irrevocably constitute and appoint
_________________________________________________________ attorney to transfer
the said stock on the books of the within named Company, with full power of
substitution in the premises.
Dated: _________________________________
RIVERSIDE GROUP, INC.
/s/ Xxxxxx X. Xxxxx
By ________________________________
Xxxxxx X. Xxxxx
Its Authorized Agent
