Exhibit 10.7
NINTH AMENDMENT
TO
REVOLVING CREDIT AND SECURITY AGREEMENT
NINTH AMENDMENT ("Ninth Amendment") dated as of April 26, 1996 to (i)
Revolving Credit and Security Agreement dated as of May 13, 1994 (as amended and
waived to the date hereof and as may be further amended, supplemented, modified
or waived from time to time, the "Loan Agreement") by and among ALLSTATE
FINANCIAL CORPORATION, a corporation organized under the laws of the
Commonwealth of Virginia ("Borrower"), IBJ XXXXXXXX BANK & TRUST COMPANY
("IBJS"), the other lenders party to the Loan Agreement (IBJS, and each of the
other lenders which may now or in the future be a party to the Loan Agreement,
the "Lenders") and IBJS, as agent for the Lenders (IBJS, in such capacity, the
"Agent") and (ii) Security Agreement dated as of May 13, 1994 (as amended and
waived to the date hereof and as may be further amended, supplemented, modified
or waived from time to time, the "Security Agreement") by and among Agent and
RECEIVABLE FINANCING CORPORATION, LIFETIME OPTIONS, INC., A VIATICAL SETTLEMENT
COMPANY, BUSINESS FUNDING OF AMERICA, INC., PREMIUM SALES NORTHEAST, INC.,
BUSINESS FUNDING OF FLORIDA, INC., SETTLEMENT SOLUTIONS, INC. and AFC HOLDING
CORPORATION (each of which individually is referred to as a "Guarantor" and,
collectively, the "Guarantors").
BACKGROUND
Borrower has requested that Agent and Lenders amend certain provisions of
the Loan Agreement and the Agent and the Lenders are willing to do so on the
terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Borrower by Lenders, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. Subject to satisfaction of the conditions
precedent set forth in Section 4 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.2 of the Loan Agreement is hereby amended as follows:
(i) the following defined terms are hereby added in their appropriate
alphabetical order:
"ADDITIONAL EQUIPMENT VALUE ADVANCES" shall mean the Advances made pursuant
to Section 2.2A(a) hereof.
"ADDITIONAL EQUIPMENT VALUE BORROWING PERIOD" shall have the meaning set
forth in Section 2.2A(a) hereof.
"ELIGIBLE CLIENT FUNDED INVENTORY" shall have the meaning set forth in
Section 2.2B(a) hereof.
"INVENTORY BORROWING BASE" shall have the meaning set forth in Section
2.2B(a).
"INVENTORY COLLATERAL ASSIGNMENT OF SECURITY" shall mean the agreement
executed by Borrower in favor of Agent pursuant to which all rights of Borrower
under each Inventory Collateral Funding Repayment Agreement and related
documents (including all UCC-1 Financing Statements) are collaterally assigned
to Agent for its benefit and the benefit of the Lenders.
"INVENTORY COLLATERAL FUNDING REPAYMENT AGREEMENT" shall mean an Inventory
Collateral Funding Repayment Agreement and such other agreements in
substantially the forms attached hereto as Exhibit 1.2(d) entered into between
Borrower and a Client, together with such modifications thereto as Borrower may
from time to time deem appropriate or desirable and such other agreements to be
approved by Agent in its sole reasonable discretion; PROVIDED, HOWEVER, THAT, no
such modifications can be made without Agent's approval following the occurrence
and during the continuance of an Event of Default, such approval not to be
unreasonably withheld.
"INVENTORY VALUE ADVANCES" shall mean Advances made pursuant to Section
2.2B(a) hereof.
"INVENTORY VALUE BORROWING PERIOD" shall have the meaning set forth in
Section 2.2B(a) hereof.
"MAXIMUM ADDITIONAL EQUIPMENT VALUE ADVANCE AMOUNT" shall mean (i) during
the Additional Equipment Value Borrowing Period, the sum of (x) $2,000,000 and
(y) an amount equal to the actual principal amount of Equipment Value Advances
repaid (other than regularly scheduled monthly amortization payments) or prepaid
during the Additional Equipment Value Borrowing Period not to exceed $2,000,000
and (ii) on and after April 1, 1996, the aggregate outstanding principal amount
of Additional Equipment Value Advances made pursuant to Section 2.2A.
"MAXIMUM INVENTORY VALUE ADVANCE AMOUNT" shall mean $2,500,000.
"NINTH AMENDMENT" shall mean the Ninth Amendment to Revolving Credit and
Security Agreement dated as of April 26, 1996.
-2-
"NINTH AMENDMENT EFFECTIVE DATE" shall mean the date on which all of the
conditions set forth in Section 4 of the Ninth Amendment are satisfied or waived
in writing by Agent.
(ii) the following defined terms are hereby amended in their entirety to
provide as follows:
"ADVANCES" shall mean and include, without duplication, the Revolving
Advances, the Inventory Value Advances, the Equipment Value Advances, the
Additional Equipment Value Advances and Letters of Credit.
"MAXIMUM REVOLVING ADVANCE AMOUNT" shall mean $25,000,000.00 less the sum
of (x) outstanding Equipment Value Advances, (y) outstanding Additional
Equipment Value Advances and (z) outstanding Inventory Value Advances.
"OTHER DOCUMENTS" shall mean the Revolving Credit Note, Stock Pledge
Agreements, Guaranty, Security Agreement, Collateral Assignment of Security,
Equipment Collateral Assignment of Security, Inventory Collateral Assignment of
Security and any and all other agreements, instruments and documents, including,
without limitation, guaranties, pledges, powers of attorney, consents, and all
other writings heretofore, now or hereafter executed by Borrower and/or
delivered to Agent or any Lender in respect of the transactions contemplated by
this Agreement.
"REVOLVING ADVANCES" shall mean Advances made other than Letters of Credit
but inclusive of Equipment Value Advances, Additional Equipment Value Advances
and Inventory Value Advances.
(iii) Clause (p) of the definition of "Eligible Receivables" is hereby
amended by deleting the words "15% of Tangible Net Worth" appearing therein and
inserting in lieu thereof the words "15% of the sum of Tangible Net Worth and
the aggregate principal amount of outstanding Convertible, Senior Subordinated
Notes".
(b) Section 2.1(a) of the Loan Agreement is hereby amended by inserting
"(other than Equipment Value Advances, Additional Equipment Value Advances and
Inventory Value Advances)" after the words "Revolving Advances" appearing in the
third line thereof.
(c) Section 2.2(a) of the Loan Agreement is hereby amended by deleting the
last sentence thereof in its entirety and inserting the following in lieu
thereof:
"Any repayment (other than regularly scheduled monthly
amortization payments) or prepayment of Equipment Value Advances
made after the end of the Equipment Value Borrowing Period shall
be applied in inverse order of maturity to the then remaining
monthly amortization of Equipment Value Advances."
-3-
(d) Section 2.2(b) of the Loan Agreement is hereby amended by (x) replacing
clause (ii)(1) thereof in its entirety with "(i) the aggregate principal amount
of Equipment Value Advances outstanding shall not exceed the lesser of" and (y)
by deleting the word "and" appearing immediately before clause (ii)(2) thereof
and inserting immediately after the figure "$25,000,000" appearing at the end
thereof the following:
", and (3) the sum of the aggregate principal amount of
Equipment Value Advances outstanding and the aggregate principal
amount of Additional Equipment Value Advances outstanding shall
not exceed $4,924,167 less regularly scheduled monthly
amortization payments on and after the Ninth Amendment Effective
Date with respect to Equipment Value Advances and Additional
Equipment Value Advances".
(e) The Loan Agreement is hereby amended by inserting the following new
Sections 2.2A and 2.2B immediately after Section 2.2:
"2.2A ADDITIONAL EQUIPMENT VALUE ADVANCES. (a) Subject to
the terms and conditions of this Agreement, each Lender,
severally and not jointly, agrees to make loans to Borrower
("Additional Equipment Value Advances") to permit Borrower to
make loans or advances to Clients secured by Client Funded
Equipment in aggregate amounts outstanding at any time equal to
such Lender's Commitment Percentage of the lesser of (i) the
Maximum Additional Equipment Value Advance Amount, (ii)
eighty-five percent (85%) of the aggregate amount from time to
time outstanding of actual cash advances by Borrower to Clients
which is secured by Client Funded Equipment or (iii) sixty
percent (60%) of the liquidation value of such Client Funded
Equipment; PROVIDED, HOWEVER, that under no circumstances shall
Additional Equipment Value Advances be made against Client Funded
Equipment unless Borrower has recorded on its books and records
and actually made advances or loans to a Client pursuant to the
applicable Collateral Funding Repayment Agreement. Additional
Equipment Value Advances shall only be made on and after the
Ninth Amendment Effective Date and on or prior to March 31, 1997
(the "Additional Equipment Value Borrowing Period"). During the
Additional Equipment Value Borrowing Period, Borrower may use the
Additional Equipment Value Advances by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions
hereof. The proceeds of each Additional Equipment Value Advance
requested by Borrower shall, to the extent Lenders make such
Additional Equipment Value Advance, be made available to Borrower
on the day so requested by way of credit to Borrower's Operating
Account, or such other bank as Borrower may designate following
notification to Agent, in immediately available federal or other
immediately available funds. The aggregate principal amount of
Additional Equipment Value Advances outstanding
-4-
on the last day of the Equipment Value Borrowing Period will
be amortized on the basis of a thirty-six (36) month amortization
schedule and shall be payable in equal monthly installments
commencing on March 31, 1997 and on the last day of each month
thereafter with the balance payable upon the expiration of the
Term, subject to acceleration upon the occurrence of an Event of
Default under this Agreement or termination of this Agreement.
Any repayment or prepayment of Additional Equipment Value
Advances made after the end of the Additional Equipment Value
Borrowing Period shall be applied in direct order of maturity to
the then remaining monthly amortization of Additional Equipment
Value Advances.
(b) The agreement of Lenders to make each Additional
Equipment Value Advance is subject to satisfaction of the
following conditions precedent: (i) receipt by Agent of (1)
copies of all documentation and appraisals required to be
delivered by a Client to Borrower pursuant to the applicable
Collateral Funding Repayment Agreement, (2) evidence that such
Client has obtained insurance covering the theft, destruction or
other loss of the Client Funded Equipment and (3) such other
documentation and evidence that Agent may reasonably request,
including, without limitation, copies of UCC-1 financing
statements filed in accordance with Section 6.10 hereof or
evidence that such financing statements have been filed in
accordance therewith and (ii) after giving effect thereto (1) the
aggregate principal amount of Additional Equipment Value Advances
outstanding shall not exceed the lesser of (i) the Maximum
Additional Equipment Value Advance Amount, (ii) eighty-five
percent (85%) of the aggregate amount from time to time
outstanding of actual cash advances made by Borrower to Clients
which is secured by Client Funded Equipment in accordance with
the Collateral Funding Repayment Agreement or (iii) sixty percent
(60%) of the liquidation value of such Client Funded Equipment,
(2) the aggregate outstanding Advances shall not exceed
$25,000,000, and (3) the sum of the aggregate principal amount of
Equipment Value Advances outstanding and the aggregate principal
amount of Additional Equipment Value Advances outstanding shall
not exceed $4,924,167 less regularly scheduled monthly
amortization payments on and after the Ninth Amendment Effective
Date with respect to Equipment Value Advances and Additional
Equipment Value Advances."
"2.2B INVENTORY VALUE ADVANCES. (a) Subject to the terms and
conditions of this Agreement, each Lender, severally and not
jointly, agrees to make loans to Borrower ("Inventory Value
Advances") to permit Borrower to make loans or advances to
Clients secured by Eligible Client Funded Inventory (as defined
below) in aggregate amounts outstanding at any time equal to such
Lender's Commitment Percentage of the lesser of (i) the Maximum
Inventory Value Advance
-5-
Amount or (ii) (x) to the extent (but only to the extent)
that the aggregate amount from time to time outstanding of actual
cash advances by Borrower to Clients which is secured by Eligible
Client Funded Inventory is equal to or less than fifty percent
(50%) of the liquidation value of such Eligible Client Funded
Inventory, thirty percent (30%) of the aggregate amount from time
to time outstanding of such actual cash advances by Borrower to
Clients secured by such Eligible Client Funded Inventory and (y)
to the extent (but only to the extent) that the aggregate amount
from time to time outstanding of actual cash advances by Borrower
to Clients which is secured by Eligible Client Funded Inventory
exceeds 50% of the liquidation value of such Eligible Client
Funded Inventory, twenty-five percent (25%) of the aggregate
amount from time to time outstanding of such actual cash advances
by Borrower to Clients secured by such Eligible Client Funded
Inventory (the sum of preceding clauses (ii)(x) and (y), the
"Inventory Borrowing Base"); PROVIDED, HOWEVER, that under no
circumstances shall Inventory Value Advances be made against
Eligible Client Funded Inventory unless Borrower has recorded on
its books and records and actually made advances or loans to a
Client pursuant to the applicable Inventory Collateral Funding
Repayment Agreement. "Eligible Client Funded Inventory" shall
mean, with respect to any Client, all of such Client's raw
materials inventory and finished goods inventory to the extent
(i) Borrower provides Agent with a written description thereof in
reasonable detail and a written request that such inventory be
treated as Eligible Client Funded Inventory and (ii) Agent does
not, within two business days of its receipt of such description
and request, notify Borrower in writing that, in the exercise of
Agent's sole, reasonable discretion, such inventory (or a
specified portion thereof) does not constitute Eligible Client
Funded Inventory. Notwithstanding the foregoing, Borrower
acknowledges and agrees that dynamic random access memory chips
shall not constitute Eligible Client Funded Inventory unless
Agent (in the exercise of its sole and absolute discretion)
affirmatively consents thereto in writing.
Inventory Value Advances shall only be made on and after the
Ninth Amendment Effective Date and on or prior to the last day of
the Term (the "Inventory Value Borrowing Period"). During the
Inventory Value Borrowing Period, Borrower may use the Inventory
Value Advances by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. The proceeds of
each Inventory Value Advance requested by Borrower shall, to the
extent Lenders make such Inventory Value Advance, be made
available to Borrower on the day so requested by way of credit to
Borrower's Operating Account, or such other bank as Borrower may
designate following notification to Agent, in immediately
available federal or other immediately available funds. The
aggregate principal amount of Inventory Value Advances
-6-
outstanding on the last day of the Term shall be payable in
full upon the expiration of the Term, subject to acceleration
upon the occurrence of an Event of Default under this Agreement
or termination of this Agreement.
(b) The agreement of Lenders to make each Inventory Value
Advance is subject to satisfaction of the following conditions
precedent: (i) receipt by Agent of (1) copies of all
documentation and appraisals required to be delivered by a Client
to Borrower pursuant to the applicable Inventory Collateral
Funding Repayment Agreement, (2) evidence that such Client has
obtained insurance covering the theft, destruction or other loss
of the Client Funded Inventory, (3) a copy of a duly executed
inventory management or inventory control agreement among
Borrower, the applicable Client and DiversiCorp, Inc. (or another
third party collateral monitoring firm selected by Borrower and
reasonably satisfactory to Agent) and (4) such other
documentation and evidence that Agent may reasonably request,
including, without limitation, copies of UCC-1 financing
statements filed in accordance with Section 6.10 hereof or
evidence that such financing statements have been filed in
accordance therewith and (ii) after giving effect thereto (1) the
aggregate principal amount of Inventory Value Advances
outstanding shall not exceed the lesser of (i) the Maximum
Inventory Value Advance Amount or (ii) the Inventory Borrowing
Base, and (2) the aggregate outstanding Advances shall not exceed
$25,000,000."
(f) Section 2.4 of the Loan Agreement is hereby amended in its entirety to
provide as follows:
"2.4 MAXIMUM ADVANCES (OTHER THAN EQUIPMENT VALUE ADVANCES,
ADDITIONAL EQUIPMENT VALUE ADVANCES AND INVENTORY VALUE
ADVANCES).
The aggregate balance of Advances (other than Equipment
Value Advances, Additional Equipment Value Advances and Inventory
Value Advances) outstanding at any time shall not exceed the
lesser of (x) the Maximum Revolving Advance Amount and (y) the
Borrowing Base."
(g) The Loan Agreement is hereby amended by inserting the following new
Sections 2.5A and 2.5B immediately after Section 2.5:
"2.5A MAXIMUM ADDITIONAL EQUIPMENT VALUE ADVANCES. The
aggregate balance of the Additional Equipment Value Advances
outstanding at any time shall not exceed the lesser of (i) the
Maximum Additional Equipment Value Advance Amount, (ii)
eighty-five percent (85%) of the aggregate amount from time to
time outstanding of actual cash advances by Borrower to Clients
secured by Client Funded
-7-
Equipment or (iii) sixty percent (60%) of the liquidation
value of such Client Funded Equipment."
"2.5B MAXIMUM INVENTORY VALUE ADVANCES. The aggregate
balance of the Inventory Value Advances outstanding at any time
shall not exceed the lesser of (i) the Maximum Inventory Value
Advance Amount or (ii) the Inventory Borrowing Base."
(h) Section 2.6 of the Loan Agreement is hereby amended in its entirety to
provide as follows:
"2.6 REPAYMENT OF EXCESS ADVANCES. The aggregate balance of
Advances (other than Equipment Value Advances, Additional
Equipment Value Advances and Inventory Value Advances), Equipment
Value Advances, Additional Equipment Value Advances and Inventory
Value Advances, as the case may be, outstanding at any time in
excess of the maximum permitted under Section 2.4, Section 2.5,
Section 2.5A or Section 2.5B, as applicable, shall be immediately
due and payable without the necessity of any demand, at the
Payment Office, whether or not a Default or Event of Default has
occurred."
(i) Clause (i) of Section 2.8 of the Loan Agreement is hereby amended by
inserting "(other than Equipment Value Advances, Additional Equipment Value
Advances and Inventory Value Advances)" after the words "Revolving Advances"
appearing therein.
(j) The second sentence of Section 2.10(c) of the Loan Agreement is hereby
amended by inserting "(other than Equipment Value Advances, Additional Equipment
Value Advances and Inventory Value Advances)" after the words "Revolving
Advances" appearing therein.
(k) Section 2.12(a) of the Loan Agreement is hereby amended by deleting the
words "and/or Equipment Value Advance" after the words "Revolving Advance"
appearing in the first sentence thereof and inserting in lieu thereof the words
", Equipment Value Advance, Additional Equipment Value Advance and/or Inventory
Value Advance".
(l) Section 2.12 (e) of the Loan Agreement is hereby amended by deleting
the words "and, subject to Section 2.2 hereof, Equipment Value Advances, as
applicable," after the words "Revolving Advances" appearing in the first
sentence thereof and inserting in lieu thereof the words "and, subject to
Sections 2.2, 2.2A and 2.2B hereof, to Equipment Value Advances, Additional
Equipment Value Advances and Inventory Value Advances, as the case may be, as
applicable,".
(m) Clauses (i), (ii), (iii) and (iv) of Section 2.12(f) of the Loan
Agreement and Sections 2.12(g) and 2.12(h) of the Loan Agreement are hereby
amended by inserting the words ", Equipment Value Advances, Additional Equipment
Value Advances and/or
-8-
Inventory Value Advances (as the case may be)" immediately after the words
"Revolving Advances" each place they appear therein.
(n) Clauses (i), (vi), (vii), (viii) and (xi) of Section 4.15(f)(2) of the
Loan Agreement are hereby amended by inserting ", the Inventory Collateral
Funding Repayment Agreements, if any," after the words "the Collateral Funding
Repayment Agreements, if any," each place they appear.
(o) Section 4.15(g) of the Loan Agreement is hereby amended by inserting
the words ", the Inventory Collateral Funding Repayment Agreements, if any,"
after the words ", the Collateral Funding Repayment Agreements, if any,"
appearing in the second sentence thereof.
(p) Section 4.16 (c) of the Loan Agreement is hereby amended by (x)
redesignating clause (iii) thereof as clause (v) and (y) inserting the following
new clauses (iii) and (iv) after clause (ii) thereof:
", (iii) deposit proceeds of Additional Equipment Value
Advances made pursuant to Section 2.2A hereof for use in
accordance with the provisions of Section 2.2A hereof, (iv)
deposit proceeds of Inventory Value Advances made pursuant to
Section 2.2B hereof for use in accordance with Section 2.2B
hereof"
(q) Section 6.10 of the Loan Agreement is hereby amended by deleting the
words "and applicable Collateral Funding Repayment Agreement, if any" and
inserting the words ", applicable Collateral Funding Repayment Agreement and/or
applicable Inventory collateral Funding Repayment Agreement, if any," in lieu
thereof.
(r) Section 7.5(d) of the Loan Agreement is hereby amended by deleting the
words "or Collateral Funding Repayment Agreements" appearing before clause (i)
thereof and inserting the words ", Collateral Funding Repayment Agreements, if
any, or Inventory Collateral Funding Repayment Agreements, if any," in lieu
thereof.
(s) Section 7.5(d)(ii) of the Loan Agreement is hereby amended by deleting
the words "or Collateral Funding Repayment Agreement, as the case may be" and
inserting the words "or, if applicable, its Collateral Funding Repayment
Agreement or its Inventory Collateral Funding Repayment Agreement," in lieu
thereof.
(t) Section 8.2(c) of the Loan Agreement is hereby amended by deleting the
words "or Section 2.5 hereof, as applicable" and inserting the words ", Section
2.5, Section 2.5A or Section 2.5B, as applicable" in lieu thereof.
(u) Section 9.2 of the Loan Agreement is hereby amended by replacing the
word "and" immediately before subsection "(d)" with "," and inserting a new
subsection "(e)" to read in its entirety as follows:
-9-
"and (e) a schedule of loans made by Borrower to its Clients
which are secured by Eligible Client Funded Inventory stating the
name of the Client to which such loans are made and the dollar
amount thereof".
(v) Section 10.13 of the Loan Agreement is hereby amended by inserting the
words "or Inventory Collateral Assignment of Security," after the words
"Equipment Collateral Assignment of Security".
(w) Clause (ii) of Section 15.2(b) of the Loan Agreement is hereby amended
by inserting the words ", the Maximum Additional Equipment Value Advance Amount,
the Maximum Inventory Value Advance Amount" after the words "Maximum Equipment
Value Advance Amount" appearing therein.
3. Subject to satisfaction of the conditions precedent set forth in Section
4 below, the Security Agreement is hereby amended as follows:
(a) Section 3(b) of the Security Agreement is hereby amended
by inserting the words "and Inventory Collateral Funding
Repayment Agreement" after the words "Collateral Funding
Repayment Agreement".
(b) Clauses (i), (vi), (vii), (viii) and (xi) of Section
6(2) of the Security Agreement are hereby amended by inserting
the words "Inventory Collateral Funding Repayment Agreements, if
any," after the words "Collateral Funding Repayment Agreements,
if any," each place they appear.
4. CONDITIONS OF EFFECTIVENESS. This Ninth Amendment shall become effective
as of the date first above written (the "Ninth Amendment Effective Date") upon
receipt by the Agent of (i) this Ninth Amendment duly executed by Borrower and
the Required Lenders and consented to by each of the Guarantors, (ii) three (3)
copies of the Inventory Collateral Assignment of Security duly executed by
Borrower, (iii) a copy of the Inventory Collateral Funding Repayment Agreement
in the form attached as Exhibit A hereto (which form shall, on the Ninth
Amendment Effective Date, be deemed to be Exhibit 1.2(d) attached to the Loan
Agreement (without further action by Borrower, Agent or any Lender)) and (iv) a
payment for the ratable benefit of the Lenders of an amendment fee in the amount
of $7,500.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants
as of the Ninth Amendment Effective Date as follows:
(a) This Ninth Amendment and the Loan Agreement, as amended
hereby constitute the legal, valid and binding obligations of
Borrower and are enforceable against Borrower in accordance with
their respective terms.
(b) After giving effect to this Ninth Amendment, Borrower
hereby reaffirms all covenants, representations and warranties
made in the Loan Agreement and agrees that all such covenants,
representations and warranties
-10-
shall be deemed to have been remade as of the Ninth
Amendment Effective Date.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Ninth
Amendment.
(d) Borrower has no defense, counterclaim or offset to the
Obligations.
6. EFFECT ON THE LOAN AGREEMENT AND THE SECURITY AGREEMENT.
(a) Upon the effectiveness of SECTIONS 2 AND 3 hereof, each reference in
the Loan Agreement or the Security Agreement, as the case may be, to "this
Agreement," "hereunder," "hereof," "herein" or words of like import shall mean
and be a reference to the Loan Agreement or the Security Agreement, as the case
may be, as amended hereby.
(b) Except as specifically amended herein, the Loan Agreement, the Security
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Ninth Amendment shall
not operate as a waiver of any right, power or remedy of Agent and Lenders, nor
constitute a waiver of any provision of the Loan Agreement, the Security
Agreement or any other documents, instruments or agreements executed and/or
delivered under or in connection therewith.
7. GOVERNING LAW. This Ninth Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
8. HEADINGS. Section headings in this Ninth Amendment are included herein
for convenience of reference only and shall not constitute a part of this Ninth
Amendment for any other purpose.
9. COUNTERPARTS; TELECOPY SIGNATURES. This Ninth Amendment may be executed
by the parties hereto in one or more counterparts, each of which taken together
shall be deemed to constitute one and the same instrument. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
-11-
IN WITNESS WHEREOF, the parties hereto, by their duly authorized officers,
have executed this Ninth Amendment as of the day and year first above written.
IBJ XXXXXXXX BANK & TRUST COMPANY
as Agent and Lender
By:_______________________
Name:
Title:
NATIONAL CANADA FINANCE CORP., a Lender
By:_______________________
Name:
Title:
By:_______________________
Name:
Title:
ALLSTATE FINANCIAL CORPORATION
By: ___________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
CONSENTED AND AGREED TO:
LIFETIME OPTIONS, INC., A
VIATICAL SETTLEMENT COMPANY
By: ___________________________
Name: Xxxxx Xxxxxxx
Title: President
PREMIUM SALES NORTHEAST, INC. AFC HOLDING CORPORATION
By: ___________________________ By:______________________________
Name: Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
Title: Senior Vice President Title: Senior Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
-12-
RECEIVABLE FINANCING CORPORATION
By: ___________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
BUSINESS FUNDING OF FLORIDA, INC.
By: ___________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
BUSINESS FUNDING OF AMERICA, INC.
By: ___________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
SETTLEMENT SOLUTIONS, INC.
By:______________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
-13-
