Exhibit 7.13
INTERCREDITOR AGREEMENT
THIS AGREEMENT, dated as of August 24, 1999 between the HOLDERS shown
on Exhibit B attached hereto ("Holders"), XXXXXXXX X. XXXXXX, as Agent (the
"Agent") for the Holders shown on Exhibit B attached hereto ("Holders") and
AMERICAN FOUNDERS LIFE INSURANCE COMPANY ("AFL").
Recitation of Facts
A. AFL has lent money (the "AFL Loans") to Riverside Group, Inc. (the
"Company") pursuant to documents described on Exhibit A (the "AFL Loan
Documents").
B. The AFL Loan Documents are secured by two Florida mortgages and five
Xxxxxxx xxxxx to secure debt, all dated as of June 6, 1996 (collectively, the
"AFL Mortgages"), and a Pledge Agreement dated as of June 6, 1996 ("AFL Pledge")
pledging 2,002,337 shares of Wickes, Inc. common stock (the "Wickes Shares"),
which instruments secure the AFL Loans and related obligations, as they may be
modified, called (the "AFL Collateral Documents"). The real and personal
property subject to the AFL Collateral Documents are collectively called the
"Collateral." The AFL Loans and other obligations secured by the AFL Collateral
Documents are herein called the "AFL Obligations."
C. The Company has issued the Subordinated Notes, defined below, in the
aggregate original principal amount of $10,000,000 and said Subordinated Notes
are presently held by the persons with their respective addresses and the
current principal balances of their respective Subordinated Notes which are all
shown on Exhibit B attached hereto ("Holders").
D. The Agent is collateral and servicing agent for all of the Holders
and all of the Holders are parties to a Credit Agreement dated as of April 1,
1999 by and among the Agent, the Holders, and the Company (as it may be
modified, called the "Credit Agreement"). Said Credit Agreement does not bind
AFL in any respect and is mentioned herein for convenience purpose only.
Pursuant to the Credit Agreement, the Holders have extended credit to the
Company in the aggregate original principal amount of Ten Million Dollars
($10,000,000) (the "Holder Loans"). Proceeds of the Holder Loans are to be used
to satisfy in full all of the Subordinated Notes of the Company (the
"Subordinated Notes") issued pursuant to the Subordinated Note Agreement dated
August 31, 1989, as amended (the "Subordinated Note Agreement"), which notes
mature on September 30, 1999 and said notes are described on Exhibit D hereto.
E. In consideration for the repayment of all of the Subordinated Notes
and making of the Holder Loans, which mature on September 30, 2000 and bear
interest at 2% per annum less than the Subordinated Notes (i.e., 11% rather than
13%), the Company has agreed to secure the Holder Loans and related obligations
(collectively, the "Holder Obligations") with, among other collateral, second
mortgages encumbering the property subject to the AFL Mortgages (the
"Subordinate Mortgages") and a second-priority pledge of the Wickes Shares (the
"Subordinate Pledge") subject to the first priority AFL Pledge.
F. The parties hereto wish to provide for certain agreements relating
to the Collateral as more fully set forth herein.
Agreement
1. First Priority of the AFL Security Interests in Collateral Payment
Priorities. Any other provision of this Agreement to the contrary
notwithstanding, the Holders and Agent acknowledge, confirm and irrevocably
covenant, warrant and agree that, all rights, title and interests of AFL in the
Collateral under and pursuant to the AFL Mortgages, the AFL Pledge and all of
the AFL Loan Documents are, and shall continue to be, superior in all respects
to any right, title or interest of the Holders and Agent in the Collateral
including all proceeds thereof. In addition, effective upon receipt by Agent of
written notice from AFL of a default under the AFL Obligations, the Agent's and
Holders' rights to receive further payments on the Holder Obligations shall be
junior, inferior and subordinate in all respects to, and postponed until payment
in full of, the AFL Obligations except as to payments representing proceeds of
collateral for the Holder Obligations other than the Collateral and payments
made pursuant to any order of a bankruptcy court or another court of competent
jurisdiction. Any payments received by the Holders or Agent after Agent receives
the aforementioned notice of default from AFL pursuant to this paragraph shall
be held in trust by Agent and the Holders for the sole and exclusive benefit of
AFL and promptly delivered by the recipient in the form received directly to
AFL. If not paid to AFL within three business days after the receipt thereof,
the recipient shall pay to AFL interest on said funds at the lesser of; (a) the
maximum rate permitted by law, or (b) 18% per annum from date of receipt until
full payment is made to AFL. AFL reserves the unfettered right, from time to
time, to amend any one or more of the AFL Loan Documents by agreement with the
Company and said amendment(s) shall not affect the priority of AFL's liens and
security interests in the Collateral which shall continue to be superior and
prior to the liens and security interests in the Collateral held be Agent and/or
Holders without any requirement to obtain any consent, approval or subordination
from Agent and/or Holders.
2. Provision for Future Advances. AFL may make future advances under
the AFL Loan Documents: (a) in an unlimited amount for any purpose, in AFL'S
sole discretion, related to the Collateral, including, but not limited to,
paying property taxes, insurance or other amounts necessary or desirable, in
AFL's sole discretion, to protect, preserve, or enhance the value of the
Collateral or to protect, preserve, perfect and/ or continue AFL's security
interests or priority therein and (b) up to $250,000 in the aggregate for any
corporate purpose. Nothing herein shall limit in any way any increases in the
principal amount of the AFL Obligations according to the terms thereof (except
for future advances as stated above) such as but not limited to AFL's rights to
recover its attorney's fees, court costs and costs to cure as stated in the AFL
Loan Documents.
3. Release of Real Estate Collateral. Subject to the procedures set
forth in this Paragraph 4, upon a Qualifying Transaction of any parcels of real
estate Collateral listed on Exhibit C hereto as requested by the Company in
writing to AFL (the "Parcels"), the Agent agrees with AFL, within ten days after
AFL's request therefor, to release such Parcels from the Subordinate Mortgages
provided that 100% of the net proceeds of such transaction are paid to AFL to
reduce the AFL Obligations (including the funding of any Prepayment Account
described in the AFL Loan Documents) or, if the AFL Loans have been paid in
full, to the Agent for payment of the Holder Obligations. For purposes of this
section, "net proceeds" shall mean the gross sale price less the Company's and
AFL's closing costs payable to parties unrelated to the Company, all as
determined by AFL in its sole and absolute discretion. A Qualifying Transaction
means any bona fide sale or refinancing of the Collateral for cash or in which
the non-cash proceeds are applied as set forth above with the same effect and in
the same amount as if the sale or refinancing were entirely for cash, provided
however, if the purchaser pays cash of at least forty percent (40%) of the
purchase price and AFL is a purchase money lender to
said purchaser, AFL may require, without limitation, that the Company guarantee
such obligations of the purchaser to AFL and that such guarantee be secured by
AFL's lien and security interest of the first priority in all or any part of the
Collateral.
4. Escrowed Releases. Paragraph 3 above to the contrary
notwithstanding, the Agent has delivered to AFL on an irrevocable basis,
pre-executed recordable partial release forms for each and all of the
Subordinate Mortgages and for the Subordinate Pledge, in escrow to be released
upon satisfaction of the conditions set forth in the preceding paragraph,
subject to the procedures set forth below. Agent and Holders hereby irrevocably
grant to AFL an irrevocable power-of-attorney, coupled with an interest, with
full right of substitution, to take any and all actions which AFL desires to
make, as determined by AFL in its sole and absolute discretion, to release one
or more Parcels from the Subordinate Mortgages and to release Collateral from
the Subordinate Pledge, at any time and in any order, as determined by AFL, in
its sole and absolute discretion; provided that such release is made only in
connection with a Qualifying Transaction of the released Collateral and that the
proceeds are applied as set forth in Paragraph 3.
5. Collateral Agent. AFL agrees with the Agent for the benefit of the
Holders that, to the extent that AFL is holding or has control or dominion over
any of the Wickes Shares or proceeds of any the Wickes Shares, it shall hold
such shares and/or proceeds first, for the account of AFL as the holder of the
security interest therein of the first priority, and secondarily, on a junior,
inferior and subordinated basis, as agent for the Agent and Holders for the sole
and limited purpose of perfecting the Agent's and Holders' second, junior,
inferior and subordinate pledge and security interest in such Collateral. AFL
shall endeavor not to release any certificates representing the Wickes Shares to
the Company or its agents. If any Collateral is held by a financial
intermediary, the parties shall provide appropriate instructions to such
financial intermediary and obtain its agreement that it is holding such shares
for the benefit of AFL as the holder of the security interest of the first
priority and, on a junior, inferior and subordinated basis, for the Agent and
the Holders. AFL reserves any and all rights which AFL now has or hereafter may
have to exercise any and all remedies available to AFL at law, in equity, by
contract, including self-help, or otherwise including, but not limited to, the
right to exercise a public or private power of sale or to foreclose upon all or
any part of the Collateral in whatever order AFL may select in its sole and
absolute discretion, in accordance with the AFL Loan Documents. Upon payment in
full of the AFL Obligations, AFL shall deliver to the Agent all Collateral and
proceeds thereof in its possession.
6. Representations of AFL. AFL hereby represents and warrants to the
Agent for the benefit of the Agent and the Holders that, to the extent of AFL's
knowledge and belief but without any liability for any misstatement or omission
made by AFL herein, AFL believes that:
(a) AFL has the full right, power and authority to execute, deliver
and perform its obligations under this Agreement without the consent of any
other person, including any regulatory agency and all such actions have been
authorized by all necessary corporate actions.
(b) AFL has not assigned any of its rights in and to the Collateral
to any other Person.
(c) The total AFL obligations as of June 30, 1999, are $11,796,565,
which includes the principal amount of the AFL Loans of $11,344,672, plus
accrued but unpaid interest in the amount of $451,893, and all other amounts
secured by the AFL Loan Documents.
(d) The AFL Loan Documents and AFL Collateral Documents described
herein are all material documents evidencing, describing, securing or
guaranteeing the AFL. Obligations.
7. Representations, etc.; of the Agent. The Agent hereby represents and
warrants to AFL as follows:
(a) The Agent has the full right, power and authority to execute,
deliver and perform its obligations under this Agreement without the consent of
any other person.
(b) The Agent is the incumbent Agent under the Credit Agreement and
has the full right, power and authority to release Collateral as provided herein
without the consent of the Holders.
(c) To the best of Agent's knowledge without an independent
verification thereof, Agent has the full right, power and authority to execute,
deliver and perform its obligations under this Agreement and to bind the Holders
without the consent of any other person, including any regulatory agency and all
such actions have been authorized by all necessary corporate or other actions.
(d) To the best of Agent's knowledge without an independent
verification thereof, Holders have not assigned any of Holders' rights in and to
the Subordinated Notes, the Subordinated Note Agreement, the Subordinated
Mortgages, the Subordinated Pledge, the Holder Loans or any other agreement
between Holders and the Company to any other Person except such persons as would
take their interests subject to the Holders' obligations under this Agreement.
(e) To the best of Agent's knowledge, the total Holder Loans as of
the date hereof are $10,434,521, which includes the principal amount of the
Holder Loans of $10,000,000, plus accrued but unpaid interest in the amount of
$434,521 as of June 30, 1999.
(f) To the best of Agent's knowledge without an independent
verification thereof, this agreement is binding and enforceable against the
Holders and the Agent in accordance with its terms; subject to bankruptcy,
fraudulent transfer, moratorium and other laws for the benefit of creditors
generally and to the discretion of a court in the enforcement of equitable
remedies.
(g) Agent has full power to act on behalf of Holders and AFL shall be
entitled to rely on any agreement executed by Agent during the entire term of
this Agreement without the necessity of confirming or verifying the authority of
Agent to act for the Holders or the approval or consent of the Holders.
8. Consent; Waiver. AFL hereby consents to the junior, inferior and
subordinated Subordinate Mortgages and Subordinate Pledge, the payment by the
Company of the Subordinated Notes on the terms stated herein and agrees not to
participate in any action to have such transaction rescinded or avoided. AFL
further consents to the specific transaction described herein and irrevocably
waives any default or event of default arising under any AFL Loan Document as a
result thereof.
9. Disputes. In the event of any dispute between the Company and the
Agent or the Holders as to rights to the Wickes Shares or proceeds thereof after
satisfaction of the AFL
Obligations, AFL shall have the right after ten days written notice to the Agent
to interplead the Wickes Shares or proceeds thereof into a court of appropriate
jurisdiction in the State of Arizona, in which event AFL shall have no further
obligations with respect to such shares.
10. Notices Among Parties, Etc. Each of the parties agrees to use its
best efforts to (a) promptly notify the other when it has given notice to the
Company of a default, (b) give the same written notice to the other as it gives
to the Company of any intended foreclosure or other disposition of Collateral,
(c) promptly notify the other when it has taken title to or possession of any
Collateral, and (d) as reasonably requested by the other party from time to
time, apprise the other party of the status of collection efforts being
undertaken with respect to the Collateral. Agent and Holders agree that Agent
and Holders will take no action to enforce any of their rights and remedies
against the Company with respect to the Collateral for a period of sixty days
after sending a notice of default to AFL or for a period of sixty days after
receiving a notice of default from AFL. Agent and Holder agree that a default
under the Holder Loans will constitute a default under the AFL Loan Documents
which will not require a notice from AFL to Agent.
11. AFL's First Priority Not Affected by Amendments, Extensions or
Renewals Etc. The first, superior and paramount priority of the AFL's security
interests in the Collateral and the junior, inferior and subordinate priority of
the Agent and the holders security interests in the Collateral shall not be
affected by any amendment, modification, renewal, extension of time for payment
or other forbearance or indulgence by either of the parties with respect to the
Company's obligations to said party.
12. Continuing Agreement. The first, superior and paramount priority
of AFL's security interests in the Collateral shall be a continuing agreement of
Agent and Holders and shall terminate only upon mutual agreement of the parties.
13. Time of Filing Financing Statements. The provisions of this
Agreement shall be binding irrespective of the time of the recording or filing
of any Mortgages or financing statements now or hereafter filed by either of the
parties.
14. Amendment; Waiver. No amendment, modification or waiver of any
provision of this Agreement, nor any consent to any departure herefrom, shall be
effective unless the same shall be in writing signed by the party against whom
enforcement is sought, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No notice to or
demand on any party in any one case shall entitle such party to any other or
future notice or demand in the same, similar or other circumstances.
15. No Waiver. No failure or delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any further
exercise thereof or the exercise of any right, power or privilege.
16. Rights of Parties. This Agreement shall benefit and bind the
parties hereto and their successors and assigns. No other person, including the
Company or any trustee in bankruptcy, receiver or other representative of the
Company or its assets, shall have any rights hereunder. AFL shall use its good
faith efforts not to assign the AFL Obligations or AFL Collateral Documents, or
any portion thereof, unless the Assignee shall agree in writing to be bound by
this Agreement. The Agent agrees to enter into an agreement substantially the
same as this Agreement with any institutional lender refinancing the AFL
Obligations provided the
principal amount of the debt upon refinancing does not exceed the principal
amount of AFL Obligations being refinanced.
17. Notices. All communications provided for hereunder shall be in
writing, sent by hand delivery, by United States mail, postage prepaid, or by
overnight delivery to the parties, respectively, as follows:
(a) If to the Agent, to
Xxxxxxxx X. Xxxxxx
000-X Xxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
If to the Holders, to the addresses shown on Exhibit B
attached hereto.
(b) If to AFL, at
American Founders Life Insurance Company
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Each party by notice duly given and in accordance with the above provision, may
specify a different address for the purposes of this Agreement.
18. Governing Law, Etc. This Agreement shall be governed by and
interpreted in court in accordance with the laws of the State of Arizona
disregarding its conflict of laws provisions. All parties hereto agree that
jurisdiction and venue for the enforcement of this Agreement shall be the State
of Arizona and all parties hereby consent to jurisdiction and venue in the State
of Arizona, County of Maricopa.
19. Further Assurances. The parties hereto agree to cooperate in
carrying out the intent of this Agreement and protecting and reserving the
rightful interests of the parties in the Collateral and to afford such further
assurances to each other as may be reasonably requested.
20. Counterparts. This Agreement may be executed and delivered in
multiple counterparts all of which shall be deemed a single instrument.
21. Agent Capacity. The Agent is acting solely as agent for the
Holders and not in Agent's personal capacity. Neither the Agent personally nor
any of the Agent's assets shall have any liability hereunder except for gross
negligence or willful misconduct, and, in the event of a dispute, AFL agrees to
look solely to any assets or interests of the Agent held on behalf of the
Holders to satisfy any judgment which may result in such party's action against
the Agent from such dispute.
22. Waiver of Defenses, Marshalling Defense, Etc. Agent and Holders
hereby waive and release to AFL any and all rights to require marshalling of
assets in connection with the exercise of any of the remedies permitted to AFL
under the AFL Loan Documents or otherwise permitted by applicable law. AFL
reserves full right to exercise its remedies in whatever order it so desires in
its sole discretion. Nothing herein shall create, explicitly or implicitly, any
duty or obligation on the part of AFL in favor or, or for the benefit of,
directly or indirectly, Agent and/or the Holders, except as specifically and
expressly set forth herein. Except for any defense
specifically and expressly stated in this Agreement, Agent and Holders hereby
waive all defenses to the exercise by AFL of any of its remedies and Agent and
Holders agree not to assert any defenses or counterclaims in any legal action by
AFL to enforce any rights and remedies under any one or more of the AFL Loan
Documents.
23. AFL's Condition. This Agreement shall not be effective or binding
on AFL in any respect unless and until: (a) the Company and the Agent have
verified to AFL that all Subordinated Notes of the Company constituting an
aggregate principal indebtedness of the Company of at least Ten Million Dollars
have been satisfied in full and all Holders of all Holder Loans representing an
aggregate principal indebtedness of at least Ten Million Dollars are parties to
the Credit Agreement, have accepted the Holder Loan Note of the Company in the
form attached hereto as Exhibit E and are bound by the terms of this Agreement,
and (b) AFL receives the legal opinion of the legal counsel for the Agent that
this Agreement binds the Holders and is enforceable according to its terms,
subject to bankruptcy, insolvency and other laws which affect the rights of
creditors generally and the discretion of a court without regard to equitable
remedies; provided however, AFL reserves the right, in AFL's sole and absolute
discretion, to waive all or any part of these conditions condition by written
notice to Agent and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
/s/ Xxxxxxxx X. Xxxxxx
____________________________________
XXXXXXXX X. XXXXXX, as Agent for the
Holders
AMERICAN FOUNDERS LIFE
INSURANCE COMPANY
/s/ Xxxxx Xxxxxxx
By:_________________________________
Xxxxx Xxxxxxx
Name:_______________________________
Pres
Title:______________________________
CONSENT AND AGREEMENT
Riverside Group, Inc., the debtor with respect to the obligations
described above, hereby represents and warrants to AFL that the Recitation of
Facts and the information stated in 6(c) and 7(e) stated above are true, correct
and complete, and approves and consents to the foregoing agreement, and
acknowledges that it is not a beneficiary of the foregoing agreements or
entitled to enforce such agreement. Further Riverside Group, Inc. agrees with
AFL that a default by Riverside Group, Inc. under the Holder Loans shall
constitute a default under the AFL Loan Documents which shall entitle AFL to
exercise any and all of its rights and remedies thereunder.
RIVERSIDE GROUP, INC.
/s/ Xxxxxx X. Xxxxx
By:_________________________________
Xxxxxx X. Xxxxx
Name:_______________________________
Authorized Signer
Title:______________________________
EXHIBITS:
A AFL Loan Documents
B Holders: names, addresses, taxpayer identification numbers and balances
C Real Estate Collateral
D Subordinated Notes
E Form of Holder Loan Notes
EXHIBIT A
AFL LOAN DOCUMENTS
1. Pledge Agreement dated as of June 6, 1996, by and between RGI, Circle
Investors, Inc. and AFLIC, a Texas life insurance company ("AFL")
2. Letter dated April 20, from RGI to AFLIC (conformed) amending #1 above.
3. Letter dated April 30, 1997 from Circle Investors, Inc. and AFLIC to
Riverside Group, Inc.
4. Promissory Note dated June 6, 1996, in the face amount of $2,566,827, by
RGI to AFL
5. Promissory Note dated June 6, 1996, in the face amount of $2,604,109, by
RGI to AFL
6. Promissory Note dated June 6, 1996, in the face amount of $2,309,190, by
RGI to AFL
7. Promissory Note dated June 6, 1996, in the face amount of $2,851,764, by
RGI to AFL
8. Promissory Note dated June 6, 1996, in the face amount of $2,876,081, by
RGI to AFL
9. Promissory Note dated June 6, 1996, in the face amount of $2,295,0,00, by
RGI to AFL
10. Promissory Note dated June 6, 1996, in the face amount of $2,295,000, by
RGI to AFL
11. Balloon Mortgage and Security Agreement dated June 6, 1996 by RGI to AFLIC
securing Secured Debts as defined up to $17,797,972 (OR. Vol. 8369, Page
1300, Xxxxx County) Tract A
12. Balloon Mortgage and Security Agreement dated June 6, 1996 by RGI to AFLIC
securing Secured Debts as defined up to $17,797,972 (OR. Val. 8369, Page
1300, Xxxxx County) Tract B
13. Deed to Secure Debt and Security Agreement dated June 6, 1996, by RGI
to AFLIC recorded June 12, 1996, in the records of the Clerk, Superior
Court, Xxxx County, Georgia, at Book 9666, Page 0175.
14. Deed to Secure Debt and Security Agreement dated June 6, 1996, by RGI
to AFLIC recorded June 12, 1996, in the records of the Clerk, Superior
Court, Xxxx County, Georgia, at Book 9666, Page 0210.
15. Deed to Secure Debt and Security Agreement dated June 6, 1996, by RGI
to AFLIC recorded June 12, 1996, in the records of the Clerk, Superior
Court , Xxxx County, Georgia, at Book 9666, page 0242.
16. Deed to Secure Debt and Security Agreement dated June 6, 1996, by RGI
to AFLIC recorded June 12, 1996, in the records of the Clerk, Superior
Court, Xxxx County, Georgia, at Book 9666, Page 0273.
17. Deed to Secure Debt and Security Agreement dazed June 6, 1996, by RGI
to AFLIC recorded June 12, 1996, in the records of the Clerk, Superior
Court, Xxxx County, Georgia, at Book 9666, Page 0308.
18. Any and all financing statements pertaining to the above.
Exhibit B
Holders of Notes
Holder Principal
Amount
Xxxxx Xxxxxxx $1,000,000
c/o Mr. Xxx Xxxxxxx
0000 Xxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Creek Farms Corp. $ 150,000
c/o W. Xxxxxxx Xxxxxx
Southcoast Capital
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Lovco, Inc. $ 100,000
c/o W. Xxxxxxx Xxxxxx
Southcoast Capital
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
East Xxxxx Corporation $ 250,000
X.X. Xxx 0000 (32201)
0000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fujita Investment Co., Ltd. $1,000,000
International Finance Dept.
0-0-00, Xxxxxxxxx
Xxxxxxx-Xx, Xxxxx 000-0000 Xxxxx
Xxxxxxx & Company $ 430,000
c/o Xx. Xxx Xxxxxxx
Harch Capital Management
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Xxxxxxxxx, Xxxxxxx X. $1,000,000
x/x Xxxxxxx, Xxxx, Xxxxxx & XxxXxx, LLP
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Pitt & Co. $2,070,000
c/o Mr. Xxxxxxx Xxxxx
Palm Beach Investment Advisors
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Southern Farm Bureau Casualty Insurance Company $1,000,000
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Hare & Co. NY $1,000,000
c/o Midland Advisors Company
Xxx Xxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
American Centennial Insurance Company $1,000,000
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxx 1994 Trust $1,000,000
c/o Xx. Xxxxxxxxx X. Xxxxxxx
Xxxxxxx Investments
0000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Exhibit C
15-Jul-99
ACRES
SMALL COMMERCIAL
3 0.981
5 3.012
A 1.405
B-2 2.951
8.349
LARGE COMMERCIAL
5 1.5
5A 8.61
9 13.66
10 23.7
11 13.9
12 12.8
Phase V 6.765
80.935
OFFICE
Oakdale 1.03
1 5.23
2A 5.28
2B 6.4
3 10.25
6C 2.095
7 6.34
8 6.92
1C 3.94
47.485
Highlands Subtotal 136.769
Belfort Office Phase 3 6.83
Exhibit D
Subordinated Notes
Holder Principal
Amount
Xxxxx Xxxxxxx $1,000,000
Creek Farms Corp. $ 150,000
Lovco, Inc. $ 100,000
East Xxxxx Corporation $ 250,000
Fujita Investment Co., Ltd. $1,000,000
Xxxxxxx & Company $ 430,000
Xxxxxxxxx, Xxxxxxx X. $1,000,000
Pitt & Co. $2,070,000
Southern Farm Bureau Casualty Insurance Company $1,000,000
Hare & Co. NY $1,000,000
American Centennial Insurance Company $1,000,000
Xxxxxxxxx X. Xxxxxxx 1994 Trust $1,000,000
Exhibit E
[FORM OF NOTE]
April 1, 1999
Number _______________ $_______________________
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR UNDER THE SECURITIES LAWS OF
ANY JURISDICTION, AND MUST BE HELD INDEFINITELY UNLESS IT IS
TRANSFERRED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND IN COMPLIANCE WITH ALL APPLICABLE SECURITIES
LAWS, OR AFTER RECEIPT OF AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO RIVERSIDE GROUP, INC., TO THE EFFECT
THAT REGISTRATION IS NOT REQUIRED, AND THE TRANSFER DOES NOT
VIOLATE ANY APPLICABLE SECURITIES LAW.
RIVERSIDE GROUP, INC.
SECURED PROMISSORY NOTE
DUE SEPTEMBER 30, 2000
RIVERSIDE GROUP, INC., a Florida corporation (hereafter referred to as
"the Company") for value received, hereby promises to pay to the order of
_____________________________ or registered assigns, on the date specified in
the title of this Note, the principal sum of $_________________________ at the
office of the Agent (as defined below) in Jacksonville, Florida, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest
from April 1, 1999, semiannually in arrears on March 31 and September 30 of each
year commencing September 30, 1999, on the outstanding principal amount hereof
from time to time at said office, in like coin or currency, at the rate of 13%
per annum from and including April 1, 1999 to and including __________________,
1999 and thereafter at the rate of 11% per annum until the principal sum hereof
has been paid in full. Any principal amounts payable hereunder, and to the
extent permitted by law, any accrued interest, which are not paid when due shall
bear interest from the date due until paid at fourteen percent (14%) per annum.
The entire outstanding principal balance hereof shall be due and
payable on September 30, 2000.
This Note is one of a duly authorized issue of Notes of the Company,
designated as set forth on the face hereof (the "Notes"), issued or to be issued
under and pursuant to a Credit Agreement by and among the Company, the original
Holders of the Notes and the Agent ("Agent") as defined in such agreement, dated
as of ______________, 1999 (the "Agreement"), to which Agreement and all
agreements supplemental thereto reference is hereby made for a description of
the rights, limitation of right, obligations, duties and immunities thereunder
of the Company and the Holders of the Notes. As described in the Agreement, this
Note is secured by, among other collateral, second liens on certain real
property and shares of Wickes, Inc. stock owned by the Company and encumbered by
first liens in favor of American Founders Life Insurance Company (together with
its successors and assigns, called "AFL") securing certain
obligations of the Company to AFL (the "AFL Obligations"). AFL and the Agent
have entered into an Intercreditor Agreement, a form of which is attached to the
Agreement (the "Intercreditor Agreement"), providing for certain rights and
obligations of the Agent, AFL and the Holders from time to time of the Notes
("Holders"). By acceptance of this Note, the Holder agrees to be bound by the
terms of the Agreement and the Intercreditor Agreement as it relates to the
Holders.
Effective upon receipt by the Agent of written notice from AFL of a default
under the AFL Obligations, the rights of the Holder of this Note to receive
further payments on this Note shall be junior, inferior, and subordinate in all
respects to, and postponed until payment in full of, the AFL Obligations except
as to payments representing proceeds of collateral for this Note which is not
collateral for the AFL Obligations and to payments made pursuant to any order of
a bankruptcy court or another court of competent jurisdiction. By acceptance of
this Note, the Holder hereof agrees that (a) any payments received by it after
the Agent receives the aforementioned notice of default from AFL shall be held
in trust by the Holder for the sole and exclusive benefit of AFL and promptly
delivered by the Holder in the form received directly to AFL as directed by AFL
to the Agent; (b) if any such amounts are not paid to AFL within three business
days after the receipt thereof by the Holder, the Holder shall pay to AFL
interest on such amounts at the a lesser of 18% per annum simple interest of the
maximum rate permitted by law from the date of receipt until full payment is
made to AFL; (c) AFL shall have the unfettered right, from time to time, to
amend any one or mope of the loan documents relating to the AFL Obligations by
agreement with the Company and such amendments shall not affect the priority of
AFL's liens and security interests in its collateral, which shall continue to be
superior and prior to the liens and security interests in such collateral of the
Agent and/or the Holders without any requirements to obtain any consent,
approval or subordination from the Agent and/or the Holders. By acceptance of
this Note, the payee represents and warrants for the benefit of AFL and the
Agent as follows:
(1) The Agent has the full right, power and authority to execute and
deliver and perform the Agent's obligations under the Intercreditor Agreement
without the consent of any other person;
(2) As of the date of delivery of this Note by the Company, the person
named as Agent in the Intercreditor Agreement is the incumbent agent under the
Agreement and has the full right, power and authority to release Collateral (as
defined in the Intercreditor Agreement) as provided in the Intercreditor
Agreement without the consent of the Holders of the Notes;
(3) The payees of the Notes, by execution of the Agreement, have authorized
the Agent to execute, deliver and perform the Agent's obligations under the
Intercreditor Agreement and to bind Holders of the Notes to the terms thereof;
and the execution, delivery and performance of the Agreement has been authorized
by all necessary corporate and other actions on behalf of the payee of this
Note; and
(4) The Agent has full power to act on behalf of the Holders of these Notes
and AFL shall be entitled to rely upon any agreement executed by the Agent
during the term of the intercreditor Agreement without the necessity of
confirming or verifying the authority of the Agent to so act on behalf of the
Holders of the Notes and without the necessity of obtaining the approval or
consent of such Holders.
(5) Agent has the full right, power and authority to execute, deliver and
perform its obligations under this Agreement and to bind the Holders without the
consent of any other
person, including any regulatory agency and all such actions have been
authorized by all necessary corporate or other actions on the part of the payee.
(6) The payee has not assigned any of its rights in and to the Subordinated
Notes, the Subordinated Note Agreement, the Subordinated Mortgages, the
Subordinated Pledge, the Holder loans (as such terms are defined in the
Intercreditor Agreement) or any other agreement between the payee and the
Company to any other person except such persons as would take their interests
subject to the payee's obligations under the Credit Agreement and Intercreditor
Agreement.
(7) The Intercreditor Agreement is binding and enforceable against the
Holder and the Agent in accordance with its terms; subject to bankruptcy,
fraudulent transfer, moratorium and other laws for the benefit of creditors
generally and to the discretion of a court in the enforcement of equitable
remedies.
The Holder of this Note acknowledges and agrees that AFL and the Agent shall be
entitled to rely upon the provisions set forth in this Note.
The Agreement contains provisions permitting the Company and the Agent,
with the written consent of the Holders of more than 50 percent of the aggregate
principal amount of the Notes at the time outstanding ("50% Holders") to amend
any of the provisions of the Agreement or modify in any manner the rights of the
Holders of the Notes; provided, however, that no such amendment shall (i) reduce
the principal amount of Notes whose Holders must consent to an amendment or
waiver; (ii) reduce the rate of or extend the time for payment of interest,
including defaulted interest, on any Note; (iii) reduce the principal of or
extend the fixed maturity of any Note or alter the redemption provisions
thereof; (iv) waive a default in the payment of the principal of or the interest
on, or redemption or other payment with respect to, any Note; (v) make any Note
payable in money other than that stated in the Note or (iv) alter the provisions
of the Agreement so as to reduce the percentage of Holders of Notes required to
consent to any amendment of the Agreement or of this Note or to waive compliance
with any term of the Agreement or of this Note. It is also provided in the
Agreement that, prior to any declaration accelerating the maturity of the Notes,
the 50% Holders at the time outstanding may on behalf of the Holders of all of
the Notes direct the Agent to waive any past default under the Agreement and its
consequences, except a default in the payment of, principal of, or premium, if
any, or interest on, the Notes. Any such consent or waiver by any Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
In case an Event of Default, as defined in the Agreement, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Agreement.
No reference herein to the Agreement and no provision of this Note or of
the Agreement shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.
This Note may be prepaid at the option of the Company as a whole, or from
time to time in part, on any date prior to maturity, upon giving notice of such
prepayment not less than 15 nor
more than 60 days prior to the date fixed for prepayment to the Holder hereof,
all as provided in the Agreement, provided that accrued interest to the date
fixed for prepayment shall be also be paid together with such prepayment.
Upon the occurrence of a Change of Control Event (as defined in the
Agreement), the 50% Holders have the right, in the Agreement, to direct the
Agent to require the Company to purchase all or a portion of the Notes in this
manner, for the price and on the terms described in the Agreement. Such
repurchase election shall be binding on all Holders of Note as to their ratable
share of the aggregate principal to be purchased.
The Company shall, unless otherwise directed in writing by the Agent or 50%
Holders, make all payments due hereunder to the Agent on behalf of the Holders
and shall be fully protected in doing so. In all respects, unless otherwise
directed by 50% Holders, the Company may rely upon any action of the Agent as
representing the action of the Holders of the Notes.
The Holder hereof, if it is a citizen or organized under the laws of any
jurisdiction other than the United States of America or any political
subdivision thereof, (i) represents to the Company that under applicable law and
treaties no taxes will be required to be withheld by the Company with respect to
any payments to be made to the Holder hereunder, (ii) has furnished to the
Company either U.S. Internal Revenue Service Form 4224 or Form 1001 (wherein the
Holder claims entitlement to complete exemption from United States federal
withholding tax on all payments hereunder), (iii) will furnish the Company a new
form 4224 or Form 1001, or similar statement or documents, upon the obsolescence
of any previously delivered form and (iv) will comply from time to time with all
applicable United States laws and regulations with respect to withholding tax
exemption. No interest herein may be transferred to any person that is a citizen
or organized under the laws of any jurisdiction other than the United States of
America or any political subdivision thereof unless the transferee in writing
represents to the Company and agrees to the provisions of this paragraph.
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IN WITNESS WHEREOF, RIVERSIDE GROUP, INC. has caused this Note to be signed
in its name by its ______________ President, its corporate seal to be imprinted
hereon, and attested by its Secretary.
RIVERSIDE GROUP, INC.
By:___________________________
Dated: _________________ Its ________________ President
[CORPORATE SEAL]
Attest:
______________________________
Secretary
