Exhibit 7.22
ASSIGNMENT OF NOTES AND INTEREST IN COLLATERAL DOCUMENTS
THIS ASSIGNMENT OF NOTES AND INTEREST IN COLLATERAL DOCUMENTS
("Assignment") is made and entered into as of the 7th day of February, 2001, by
and between XXXXX XXXXXXX, whose address is 000 xxxxx xx Xxxxxx, 00000 Xxxxxxxx,
Xxxxxx (hereinafter referred to as "Assignor"), 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 "Assignee").
RECITALS:
A. On or about April 1, 1999, Assignor made a loan to Riverside
Group, Inc., a Florida corporation ("Borrower"), in the original principal
amount of One Million Dollars ($1,000,000.00) (the "Loan"), as evidenced by two
certain Promissory Notes, each in the face principal amount of Five Hundred
Thousand Dollars ($500,000.00) and dated April 1, 1999 (the "Notes").
B. The Loan was made pursuant to a Credit Agreement dated as of April
1, 1999 pursuant to which the Assignor and others (in the aggregate the
"Holders") made loans to the Borrower aggregating Ten Million Dollars
($10,000,000.00). The Credit Agreement was entered into between the Borrower,
the parties executing same as Holders, and Xxxxxxxx X. Xxxxxx, (the "Agent")
acting 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,
1994, 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 Forbearance
Agreements 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
Notes, the Forbearance Agreements and the Collateral Documents together are
referred to herein as the "Loan Documents").
D. Assignee now desires to acquire all of Assignor's right, title and
interest in and to the Loan, the Notes, all Collateral and any other security
then for, the Collateral Documents and all other Loan Documents, in exchange for
the sum hereinafter described, upon the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of payment of the "Consideration," as
hereinafter defined, by Assignee to Assignor, and the mutual promises and
covenants contained herein, Assignor and Assignee do hereby agree as follows:
1. CONSIDERATION. As consideration for the assignments made herein,
Assignee has paid to Assignor the sum of Eight Hundred Thousand Dollars
($800,000,00) (the "Consideration").
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2. ASSIGNMENT. Assignor hereby assigns to Assignee, without recourse,
Assignor's entire right, title and interest in and to the Loan, the Notes, all
Collateral and other security therefor, the Collateral Documents and all other
Loan Documents, and Assignee hereby accepts such assignment and agrees to be
bound by all of the provisions undertaken by Assignor therein. This assignment
specifically includes all "voting" or "consent" rights of Assignor under or
related to any and all of the Loan, Documents. This instrument shall operate as
a xxxx of sale and assignment.
3. CLAIMS. Assignor hereby further assigns his entire right, title
and interest in and to any clams that he may have against Borrower arising out
of, or in connection with, the Loan, to Assignee.
4. DELIVERIES AT CLOSING; ESCROW PROCEDURES. Contemporaneously with
the execution of this Assignment, Assignor has delivered or caused to be
delivered, to Xxxxxxxxxx Xxxx & XxXxxxxx, 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxxx,
XX 00000, escrow agent for the Assignor and Assignee, (the "Escrow Agent"):
(i) This Assignment, properly executed;
(ii) The original Notes, accompanied by separate "endorsements"
(the "Endorsements") referencing the Notes executed by Assignor "Pay to the
order of Imagine Investments, Inc., without recourse";
(iii) A Notice of Assignment addressed to the Agent and
(iv) A Request for Waiver of Requirement of Opinion of Counsel
addressed to the Borrower.
Assignee has delivered to the Escrow Agent the Consideration in "good funds."
The Assignor and Assignee hereby request and instruct the Escrow Agent to: (a)
accept this Assignment and the Notes, Endorsements, Notices, Request and
Consideration; (b) Deliver the Notice to the Agent and Request to the Borrower;
(c) accept from the Agent his agreement (oral or written) to the form of Notice
of Assignment addressed to him; (d) accept receipt from the Borrower of a
"waiver" of the requirements of a legal opinion as required by Section 12.1 of
the Credit Agreement; and (e) upon receipt of each of the aforesaid items to
wire the Consideration to the Assignor at M+T Bank, N.Y., N.Y. for account Xxxxx
Xxxxxxx #8889900950 and deliver to the Assignee the Notes and Endorsements and
copies of other documentation held in escrow.
5. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants
to Assignee as follows:
(a) The only principal payment on the Loan was in the amount of
Fifty Thousand Dollars ($50,000.00) paid August 15, 2000, and the two most
recent interest payments were Sixteen Thousand Dollars ($16,000.00) paid
September 10, 2000 and Thirteen Thousand Eight Hundred Dollars ($13,800.00) paid
October 31, 2000. The outstanding unpaid principal balance of the Loan therefore
is Nine Hundred Fifty Thousand Dollars ($950,000.00). As of December 31, 2000,
the accrued but unpaid interest owing was Ninety Four Thousand Six Hundred
Twenty Six Dollars ($94,626.00). As of December 31, 2000, therefore, the
outstanding principal plus accrued but unpaid interest was One Million Forty
Four Thousand Six Hundred Twenty Six Dollars ($1,044,626.00).
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(b) He is the owner and holder of the Notes 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 Notes or rights assigned hereunder. No other party
has any rights in the Notes or interest in any of Assignor's interests being
assigned hereunder.
(c) There are no offsets, counterclaims or defenses to the
Notes.
6. ESCROW AGENT. Escrow Agent joins herein solely for the purpose of
undertaking to perform only such duties as are set forth herein. Escrow Agent
may (a) act in reliance on any writing, instrument or signature which it in good
faith believes to be genuine, (b) assume the validity and accuracy of any
statement or assertion contained in any such writing or instrument, and (c)
assume that any person purporting to give any writing notice, advice or
instruction in connection with the provisions hereof has been duly authorized to
do so. Assignor and Assignee hereby agree to indemnify and hold Escrow Agent
harmless against any and all losses, damages, costs and expenses that may be
incurred by it by reason of its compliance in good faith with the terms of this
Agreement. Escrow Agent shall have no liability under this Escrow Agreement
excepts for loses resulting from its gross negligence or willful misconduct.
7. FURTHER ACTS. Assignor agrees that he will, at any time, and from
time to time, after the date hereof, upon the request of Assignee, do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, assignments, transfers, conveyances, documents
and assurances, as may be required to complete the transactions contemplated
herein.
8. CHOICE OF LAW. This Assignment shall be governed by and construed
in accordance with the laws of the Commonwealth of Kentucky.
9. COUNTERPARTS AND FACSIMILES. This Assignment, and any other
document 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.
10. COUNTERPARTS AND FACSIMILES. This Assignment shall be binding upon
and inure to the respective heirs, personal representatives, successors and
assigns of Assignor and Assignee.
11. BINDING EFFECT. This Assignment shall be binding upon and inure to
the respective heirs, personal representatives, successors and assigns of
Assignor and Assignee.
IN WITNESS WHEREOF, this Assignment has been executed by the parties
hereto as of the day, month and year first above written.
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/s/ Xxxxx Xxxxxx
_________________________________________
XXXXX XXXXXX
("Assignor")
IMAGINE INVESTMENTS, INC.
/s/ Xxxx X. Xxxxx
By:______________________________________
V.P.
Title:___________________________________
("Assignee")
XXXXXXXXXX XXXX & XXXXXXXX PLLC
/s/ Xxxxxxx X. Xxxxxxxxx
By:______________________________________
Title:___________________________________
("Escrow Agent")
/s/ Xxxxxxxxx Xxxxx
________________________ ) Xxxxxxxxx Xxxxx
Xxxxxxxx xx Xxxxx ) SS:
________________________ ) Xxxxxxxx xx Xxxxx
The foregoing instrument was acknowledged before me on this 7th day of
February, 2001, by Xxxxx Xxxxxx.
_________________________________________
Notary Public
My Commission Expires:___________________
State of Texas
________________________ )
County of Dallas ) SS:
________________________ )
The foregoing instrument was acknowledged before me on this 7th day of
February, 2001, by Xxxx X. Xxxxx, as Vice President of Imagine Investments,
Inc., a Delaware corporation, on behalf of said corporation.
/s/ Xxxxx X. Xxxxxx
_________________________________________
Notary Public
September 26, 2004
My Commission Expires:___________________
[SEAL]
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Commonwealth of Kentucky )
) SS:
County of Jefferson )
The foregoing instrument was acknowledged before me on this 7th day of
February, 2001, by Xxxxxxx X. Xxxxxxxxx, as ____________________ of Xxxxxxxxxx
Xxxx & XxXxxxxx PLLC, a Kentucky professional limited liability company, on
behalf of said company.
/s/ Xxxxxxxx X. O'Xxxxx
_________________________________________
Notary Public
8/23/03
My Commission Expires:___________________
[SEAL]
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