Exhibit 7.23
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 15th day of February, 2001, by
and between Southern Farm Bureau Casualty Insurance Company, a Mississippi
insurance corporation, whose address is 0000 Xxxx Xxxxxx Xxxx xxxx, Xxxxxxxxx,
XX 00000 (hereinafter referred to as "Assignor"), and (ii) IMAGINE INVESTMENTS,
INC., a Delaware corporation, with principal office and place of business as
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 a certain
Promissory Note, or promissory Notes, in the aggregate face principal amount of
One Million Dollars ($1,000,000.00) 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,
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 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
therefor, 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 Forty Six Thousand Seven
Hundred
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and Twelve Dollars and Seventy Seven Cents ($846,712.77) (the "Consideration"),
plus the sum of Three Hundred Fifty Three Dollars and Ninety Seven Cents
($353.97) for each day beyond February 15, 2001 until disbursement is made to
the Assignor."
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, including, but
not limited to, the payment of Assignor's ratable share of any and all unpaid
attorney's fees to Xxxxxxxx X. Xxxxxx, P.A. relating to, or arising out of, the
Loan, the Notes, all Collateral and other security therefor, the Collateral
Documents and all other Loan Documents as incurred by the Holders as of the day,
month and year first above written. 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 its entire right, title and
interest in and to any claims that it 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 Trustmark National Bank, Jackson, MS,
ABA account-number 000000000 for credit to Southern Farm Bureau Casualty
Insurance Company account-number 0000000000 phone advice Xxxx Xxxxxxxxxx (601)
957-4433 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:
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(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 30, 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 today's date, the accrued but
unpaid interest owing is as recited in Section 1 above.
(b) Assignor 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) To best of Assignor's knowledge there are no offsets,
counterclaims or defenses to the Notes.
(d) Assignor has completed, executed, acknowledged and delivered,
all such acts, assignments, transfers, conveyances, documents and
assurances required to complete the transactions contemplated herein.
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
except for losses resulting from its gross negligence or willful misconduct.
7. CHOICE OF LAW. This Assignment shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky.
8. 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.
9. BINDING EFFECT. This Assignment shall be binding upon and inure to
the respective heirs, personal representatives, successors and assigns of
Assignor and Assignee.
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IN WITNESS WHEREOF, this Assignment has been executed by the parties
hereto as of the day, month and year first above written.
SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
illegible
By:_________________________________________
AVP - Investment Manager
Title:___________________________________
("Assignor")
IMAGINE INVESTMENTS, INC.
/s/ Xxxx X. Xxxxx
By:_________________________________________
V.P.
Title:___________________________________
("Assignee")
XXXXXXXXXX, DOLL & XxXXXXXX, PLLC
Xxxxxxx X. Xxxxxxxxx
By:_________________________________________
Member
Title:___________________________________
("Escrow Agent")
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STATE OF MISSISSIPPI (S)
(S)
COUNTY OF MADISON (S)
The foregoing instrument was acknowledged before me this 15th day of
February, 2001, by _______illegible__________, AVP - Investment Manager of
Southern Farm Bureau Casualty Company, a Mississippi corporation, on behalf
of said corporation.
/s/ Xxx X. Xxxxxxx
__________________________________________
Notary Public
Xxx X. Xxxxxxx
__________________________________________
Xxxxx 00, 0000
Xx Commission Expires: ___________________
STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
The foregoing instrument was acknowledged before me this 12th day of
April, 2001, by Xxxx X. Xxxxx, 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: __________________
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