--------------------------------------------------------------------------------
LOAN AGREEMENT
This LOAN AGREEMENT ("Agreement") is made and entered into as of this 20th
day of August, 1999, by and between Value Partners, Ltd., a Texas Limited
Partnership ("Lender") and Allstate Financial Corporation, a Virginia
corporation ("Borrower").
R E C I T A L S
Borrower has requested that Lender loan to Borrower and Lender is willing
to loan to Borrower the sum of $1,000,000.00 (the "Loan Amount") upon the terms
and subject to conditions hereinafter set forth. To evidence this loan, Borrower
shall execute that certain Promissory Note in the sum of $1,000,000.00 (the
"Note") in the form attached hereto as Exhibit "A". This Agreement, the Note and
the Notice, as that term is defined herein, and other documents required by the
terms hereof shall be referred to collectively as the "Loan Documents". All
exhibits attached hereto are by this reference incorporated herein. The term
"Holder" or "holder", as used herein or in any of the Loan Documents, refers to
the Lender and each successive owner and holder of the Note.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Lender and Borrower agree:
1. Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Agreement and of any amendment hereto shall have the respective
meanings specified in this Section 1. All other terms used in this Agreement
which are defined in the Trust Indenture Act of 1939 ("TIA"), as amended, or the
definitions of which in the Securities Act of 1933, as amended, are referred to
in the TIA (except as herein otherwise expressly provided or unless the context
otherwise requires) have the meanings assigned to such terms in said TIA and in
said Securities Act as in force at the date of this Agreement. The words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Section or other
subdivision. The terms defined in this Section include the plural as well as the
singular.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Borrower,
except that Affiliate shall not include the Lender. For purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, by contract, or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means IBJ Whitehall Business Credit Corporation, as agent for the
Senior Lenders pursuant to the Senior Loan Agreement and any successor thereto
and, if the Senior Loan Agreement does not provide for an agent or
representative of the Senior Lenders, the term "Agent" shall refer to the Senior
Lenders (or any agent, trustee or other representative acting on their behalf).
"Applicable Law" shall mean (i) the laws of the United States of America
applicable to contracts made or performed in the State of Virginia, now or at
any time hereafter prescribing maximum rates of interest or eliminating maximum
rates of interest on loans and extensions of credit; (ii) laws of the state of
Virginia, including, without limitation those applicable to transactions in the
State of Virginia, and any items prescribing or eliminating maximum rate of
interest on loans and extensions of credit; and (iii) any other laws at any time
applicable to contracts made or performed in the State of Virginia, including
those which permit a higher interest rate ceiling hereunder.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) or corporate stock, whether common or
preferred, including, without limitation, partnership interests, membership
interests in limited liability companies and an ownership interest in joint
stock companies.
"GAAP" means United States of America Generally Accepted Accounting
Principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession, as the same are in effect on the date
hereof.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness, and "Guaranteed" has a correlative meaning.
"Indebtedness" means, with respect to any Person, without duplication, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or representing the
balance deferred and unpaid of the purchase price of any property (including
pursuant to capital leases), except any such balance that constitutes an accrued
expense or less than sixty (60) days past due trade payable if and to the extent
any of the foregoing would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and also includes, to the extent not
otherwise included, the Guarantee of items that would be included within this
definition and all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on any asset or property (including, without limitation, leasehold
interests and any other tangible or intangible property) of such Person, whether
or not such Indebtedness is assumed by such Person or is not otherwise such
Person's legal liability, PROVIDED that if the obligations so secured have not
been assumed in full by such Person or are otherwise not such Person's legal
liability in full, the amount of such Indebtedness for the purposes of this
definition shall be limited to the lesser of the amount of such Indebtedness
secured by such Lien or the fair market value of the assets or property securing
such Lien. Notwithstanding the foregoing, the term "Indebtedness" shall not
include deferred compensation arrangements that are not evidenced by bonds,
notes, debentures or similar instruments, nor shall Indebtedness include
reserves (cash or otherwise) or credit balances held by the Borrower or its
Subsidiaries as security to be returned upon timely fulfillment of a client's
contractual obligations.
"Lien" means, with respect to any asset, any mortgage, including without
limitation any multiple indebtedness mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"Non Borrowing Base Assets" means those assets of Borrower and Affiliates
against which no Revolving Advances, Equipment Value Advances, or Inventory
Advances (as those terms are defined in the Senior Loan Agreement) have been
made or are outstanding under the Senior Loan Agreement.
"Obligations" of a Person mean all loans, debts, liabilities and
obligations, of every kind, nature and description, direct or indirect, secured
or unsecured, joint, several, joint and several, absolute or contingent, due or
to become due, now existing or hereinafter arising, contractual or tortious,
liquidated or unliquidated, owing by such Person at any time, whether or not
evidenced by any note, agreement or other instrument. This term includes,
without limitation, all principal, interest, fees, charges, reimbursement
obligations in respect of letters of credit, expenses, attorneys' fees and any
other sum chargeable to such Person.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Senior Indebtedness" means all Obligations of any kind of the Borrower to
the Senior Lenders and/or the Agent from time to time under or pursuant to the
Senior Loan Agreement including, without limitation, all principal and interest
(including all interest accruing after commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of the
Borrower) accruing thereon, charges, expenses, fees and other sums chargeable to
the Borrower by the Senior Lenders and/or by the Agent under or pursuant to the
Senior Loan Agreement, and reimbursement, indemnity or other Obligations due and
payable to the Senior Lenders and/or the Agent under or pursuant to the Senior
Loan Agreement. Senior Indebtedness shall also include any Obligation of the
Borrower incurred to refinance the Senior Indebtedness. Senior Indebtedness
shall continue to constitute Senior Indebtedness, notwithstanding the fact that
such Senior Indebtedness or any claim for such Senior Indebtedness is
subordinated, avoided or disallowed under the Federal Bankruptcy Code or other
applicable law.
"Senior Lenders" means collectivelyany holder from time to time of all or
any portion of the Senior Indebtedness.
"Senior Loan Agreement" means (a) that certain Amended and Restated
Revolving Credit and Security Agreement dated as of May 17, 1997, among the
Borrower, the Senior Lenders and the Agent, as amended, together with all
documents related thereto, including without limitation, all promissory notes
and security documents, in each case, as supplemented, amended, restated or
otherwise modified from time to time; and (b) any and all agreements, documents
and instruments related to or incurred in connection with, or extending the
maturity of, refinancing, replacing or restructuring all or any portion of, the
foregoing or the Obligations thereunder.
"Stated Maturity" means the date which all remaining unpaid principal and
interest of Indebtedness is due and payable pursuant to the terms of document(s)
evidencing such Indebtedness.
"Subsidiary" means any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
2. References in Loan Documents. All references in the Loan Documents to
the Note shall henceforth include references to the Note, as such Note may, from
time to time, be reaffirmed, amended, modified, reinstated, restated, extended,
renewed, decreased, and/or increased.
3. Execution of Documents. Subject to the terms and conditions set forth
herein, Borrower will execute in favor of Lender the Note in the form attached
hereto as Exhibit "A" and Borrower and Lender shall execute that certain Notice
and Certification of No Oral Agreements in the form attached hereto as Exhibit
"B" (the "Notice") together with such other documents as are necessary and
related to this transaction.
4. Agreement to Advance; Purpose. Upon Borrower's compliance with the
requirements of Lender as set forth in this Agreement and subject to the terms
and conditions hereof, Lender shall advance a total amount not to exceed
$1,000,000.00, as evidenced by the Note, and Borrower shall repay such sums
pursuant to the terms of the Loan Documents. The proceeds of this loan are to be
used by Borrower in conformance with that certain Forbearance Agreement entered
into as of August 1, 1999 between Borrower and the Senior Lenders. The Lender's
obligation to fund this loan is conditioned upon the delivery to the Lender of
an executed copy of the Forbearance Agreement, the terms and conditions of which
are acceptable to Lender in its sole and absolute discretion.
5. Confirmation of Rights. Lender shall have the right to exercise all
rights and remedies of Lender under the Loan Documents and under applicable law
upon the occurrence of any default or event of default under any of the Loan
Documents and under any and all amendments or modifications to any of the Loan
Documents or to the terms thereof.
6. Representations and Warranties of Borrowers. Borrower represents and
warrants to the Lender as follows:
(a) Organization, Standing, etc. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
state of Virginia and has all requisite corporate power and authority to
own its assets and carry on its business as presently conducted. Borrower
has all requisite corporate power and authority to (i) execute, deliver and
perform its obligations under the Loan Documents, and (ii) execute, deliver
and perform its obligations under all other agreements and instruments
executed and delivered by it pursuant to or in connection with the Loan
Documents.
(b) Authorization and Execution. The execution, delivery and
performance by Borrower of the Loan Documents has been duly and validly
authorized and Borrower has the corporate power and authority to execute,
deliver and perform this Agreement and execute, deliver and perform the
Loan Documents. The Loan Documents have been duly executed and delivered by
Borrower and constitute a valid and binding agreement of Borrower.
(c) Contravention. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby do
not contravene or constitute a default under or violate (i) any provision
of applicable law or regulation the violation of which would have a
material adverse effect on Borrower or on the Loan Documents, (ii) the
Articles of Incorporation or Bylaws of Borrower, or (iii) any agreement,
judgment, injunction, order, decree or other instrument binding upon
Borrower or any of its assets or properties, the violation of which would
have a material adverse effect on Borrower or result in the creation or
imposition of any lien on any asset of Borrower or on the Loan Documents.
(d) Litigation, Proceedings, Defaults. Other than the litigation as
described in Borrower's Form 10-Q for the period ended June 30, 1999 as
filed with the Securities and Exchange Commission on August 16,1999, there
is no action, suit, investigation or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, Borrower or its
assets before or by any court or arbitrator or any governmental body,
agency, department, instrumentality or official which could have a material
adverse effect on the Borrower's consolidated financial condition or
results of operation. Borrower is not in violation of its Articles of
Incorporation or Bylaws, and Borrower is not in violation of, or in default
under any provision of any applicable law or regulation or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon Borrower which violation or default (i) would affect the validity of
this Agreement, the Note, or any other document or agreement executed or to
be executed by Borrower pursuant hereto or in connection herewith, or (ii)
would impair the ability of Borrower to perform in any material respect the
obligations which it has under the Loan Documents, or any such other
document or agreement.
(e) Governmental Regulation. Borrower is not subject to any Federal or
State law or regulation limiting its ability to execute or issue the Loan
Documents.
(f) Ownership of Property. Borrower has good record title in fee
simple to, or valid and subsisting leasehold interests in, all of its real
property, and good title to all other property, in each case which is
necessary or useful in the conduct of its business.
(g) Documentation; No Material Misstatements. All of the necessary
documents related to the consummation of this transaction requested by
Lender have been provided by Borrower to the Lender and are true, correct
and complete in all material respects, and no written representation,
warranty or statement made by the Borrower in or pursuant to this Agreement
contains or will contain, when made, any untrue statement of a material
fact or omits or will omit to state any material fact necessary to make
such representation, warranty or statement not misleading to a prospective
purchaser of securities from Borrower, who is seeking full information with
respect to Borrower.
(h) Third Party Consent. The Borrower has obtained all consents
necessary to enter into this Agreement and to perform its obligations under
the Loan Documents.
(i) Additional Representations, Covenants, and Agreements
Borrower further covenants and agrees:
(i) To perform all obligations under the Loan Documents and
other documents related to the Loan Documents and any
instrument, document, or writing referenced herein, and to
promptly pay when due, all other costs, charges, and
expenses incurred in connection with the operations of
Borrower.
(ii) To indemnify and hold harmless from any and all actions,
claims, demands, damages, costs, expenses, and other
liabilities, including without limitation attorney's fees,
that Lender may incur that in any way relate to or arise out
of this Agreement or the Loan Documents, but not the gross
negligence, willful misconduct, fraud or violation of law by
Lender.
(iii)That this Agreement or any right or obligation that Borrower
has under this Agreement shall not be assigned or
transferred by Borrower without the express written consent
of Lender, and that Borrower and Borrower's successors and
assigns shall be bound by this Agreement.
7. Representations and Warranties of Lender. The Lender represents and
warrants to Borrower as follows:
The Lender has full legal right, power, and authority (including the due
authorization by all necessary partnership action) to enter into this Agreement
and to perform the Lender's obligations hereunder without the need for the
consent of any other person; and this Agreement has been duly authorized,
executed and delivered and constitutes a legal, valid and binding obligation of
the Lender enforceable against the Lender in accordance with the terms hereof.
8. Covenants of Borrower. Borrower covenants and agrees that so long as its
obligation under the Note shall be outstanding:
a. Principal and Interest. Borrower will pay or cause to be paid
punctually the principal of and interest on the Note at the times
and places and in the manner specified in the Note.
b. Maintenance and Existence. Borrower shall, and shall cause each
of its Subsidiaries to, at all times do or cause to be done all
things necessary to maintain, preserve and renew its existence
and its rights, patents and franchises.
c. Compliance with Laws. Borrower shall, and shall cause each of its
Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations, and orders of the United
States of America and of all foreign countries and of any state
or municipality, and of any instrumentality or agency of any
thereof (including applicable statutes, regulations, orders and
restrictions relating to equal employment opportunities and
environmental standards or controls) in respect of the conduct of
business and the ownership of property by Borrower.
d. Taxes, Assessments and Other Charges. Borrower will pay
punctually and discharge when due and payable: (i) all taxes,
assessments and other governmental charges levied or imposed upon
it or upon its income, profits, or properties and (ii) all claims
(including, without limitation, claims for labor, materials,
supplies, or services) which might, if unpaid, become a lien upon
any property of Borrower, except those which the Borrower is
disputing in good faith and which dispute is being prosecuted in
good faith, so long as such process does not endanger the ability
of Borrower to perform its obligations herein.
e. Indebtedness. Borrower will pay punctually and discharge when due
and payable any Indebtedness heretofore or hereafter incurred or
assumed by it and discharge, perform and observe the covenants,
provisions and conditions to be discharged, performed and
observed on the part of Borrower in connection therewith, or in
connection with any agreement or other instrument relating
thereto, except to the extent waived by the holder of such
Indebtedness.
f. Books. Borrower will keep at all times proper books of record and
account in which full, true and correct entries will be made of
its transactions in accordance with applicable generally accepted
accounting principles.
g. Statements, Reports and Certificates to be Delivered by the
Borrower. From the date hereof and so long as the Lender shall
hold the Note, Borrower will deliver to Lender at the address
shown in the register maintained by Borrower the following:
(i) Quarterly Financial Statements. As soon as reasonably
possible, and in any event within 45 days after the close of
each of the first three fiscal quarters of Borrower in each
fiscal year, (1) the unaudited balance sheet of the Borrower
as of the end of such period, setting forth in comparative
form the corresponding figures for the end of the preceding
fiscal year, and (2) the unaudited statements of income and
retained earnings and cash flows of the Borrower for each
quarter and for the portion of the fiscal year ended with
such quarter and setting forth in comparative form the
corresponding figures for the corresponding periods of the
preceding fiscal year, all in reasonable detail and
certified by a principal financial officer of Borrower
subject to year-end audit adjustments.
(ii) Other Reports and Statements. Promptly upon the mailing to
its equity holders of each annual report or other report or
communication, a copy of each such report or communication;
and promptly upon any filing by Borrower with the Securities
and Exchange Commission, or any governmental agency or
agencies substituted therefor, or with any national
securities exchange, of any annual or periodic or special
report or registration statement, a copy of the
nonconfidential portions of such report or statement.
(iii)Certificate of Default. Deliver to the Lender, forthwith
upon becoming aware of any default or defaults in the
performance of any covenant, agreement or condition
contained in the Loan Documents (including notice of any
event which with the giving of notice, lapse of time or both
would become an Event of Default as defined in the Note), an
Officer's Certificate specifying such default or Event of
Default.
(iv) Additional Information. Such other data and information as
from time to time may be reasonably and timely requested by
the Lender.
h. Other Documents. Borrower will comply will all other covenants,
representations, warranties, terms and obligations of the Loan
Documents and all other documents executed pursuant to the terms
hereof or to the other Loan Documents.
i. Until the Indebtedness of Borrower to the Senior Lenders is paid
in full, twenty-five percent (25%) of all collections, payments,
receipts, disbursements or proceeds of any kind or nature
("Receipts") from Non Borrowing Base Assets shall be applied to
repayment of the Note. Borrower shall provide a certificate on
the fifth day of each month setting forth the Receipts and the
methodology employed in calculating such Receipts for the prior
month in a form acceptable to the Lender. However, the obligation
of Borrower to repay the Note is an absolute, general obligation
of the Borrower, not limited to the Receipts.
j. Limitation On Dividends. The Borrower shall not, and shall not
permit any of its Subsidiaries, directly or indirectly, until the
Note is repaid in full, to declare or pay any dividend on, or
make any distribution on or in respect of, or purchase, redeem of
otherwise acquire or retire for value any of the Borrower's
Capital Stock.
k. Limitations On Liens. The Borrower shall not, and shall not
permit any of its Subsidiaries, directly or indirectly, to
create, incur, assume or suffer to exist any Lien on any of their
respective assets now owned or hereafter acquired, or any income
or profits therefrom or assign or convey any right to receive
income therefrom, except as required or permitted in the Senior
Loan Agreement.
l. Line Of Business.Neither the Borrower nor its Subsidiaries shall
substantially change the nature of the business in which each is
presently engaged as disclosed in the Borrower's annual report on
Form 10-KSB for the fiscal year ended December 31, 1998, nor
except as specifically permitted hereby or in the Senior Loan
Agreement, purchase or invest, directly or indirectly, in any
assets or property other than in the ordinary course of business
for assets or properties which were useful in, necessary for and
are to be used in its business as presently conducted. Neither
the Borrower nor its Subsidiaries shall permit any future
Subsidiary or Affiliate to engage in any business other than the
marketing and development of the business of the Borrower and its
Subsidiaries outside the State of Virginia or the marketing and
development of the business or programs offered by banks and
other financial institutions. Notwithstanding the above, the
Borrower and its Subsidiaries shall be permitted to expand its
business into that of commercial finance in the continental
United States.
m. Limitations On Sale And Leaseback Transactions. The Borrower
shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into any sale and leaseback
transaction, provided that the Borrower or any Subsidiaries may
enter into a sale and leaseback transaction if the net proceeds
of such sale and leaseback transaction are at least equal to the
fair market value of such property (such determination of fair
market value in the case of a sale and leaseback transaction,
being evidenced by a resolution of the Board of Directors of the
Borrower set forth in an Officers' Certificate delivered to the
Lender).
n. Limitation On Dividends And Other Payment Restrictions Affecting
Subsidiaries. Except as set forth herein, the Borrower shall not
permit any Subsidiary thereof to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability
of any such Subsidiary to (a) pay dividends or make any other
distributions to Borrower or any Subsidiary thereof on its
Capital Stock, (b) pay any Indebtedness owed to the Borrower or
any Subsidiary thereof, (c) make loans or advances to the
Borrower or any Subsidiary thereof, or (d) transfer any of its
properties or assets to the Borrower or any Subsidiary thereof.
o. Fundamental Modification. The Borrower shall not, and shall not
permit any of its Subsidiaries to, make any modification in its,
or their, as the case may be, articles of incorporation, by-laws
or any other such documents or agreements which would have a
material adverse effect on the ability of the Borrower to perform
its obligations under the terms of the Loan Documents.
p. Maintenance Of Properties, Etc. The Borrower shall, and shall
cause each of its Subsidiaries to, maintain its material
properties and assets in working order and condition and make all
necessary repairs, renewals, replacements, additions, betterments
and improvements thereto, all as may be necessary so that the
business carried on in connection therewith may be conducted in
the usual and customary manner.
q. Insurance. The Borrower shall, and shall cause each of its
Subsidiaries to, maintain with insurers that are financially
sound and reputable such insurance as may be required by law and
such other insurance, to such extent and against such hazards and
liabilities, as is customarily maintained by companies similarly
situated with like properties.
The Borrower shall, and shall cause each of its Subsidiaries to,
pay prior to delinquency all taxes, assessments and governmental
levies except as contested in good faith and by appropriate
proceedings.
r. Comply With Material Agreements. The Borrower shall, and shall
cause each of its Subsidiaries to, comply in all material respect
with all material agreements, indentures, mortgages or documents
binding on it or affecting its properties or business.
9. Events of Default. The Events of Default provision of the Note are
incorporated herein by reference and made a part hereof for all purposes.
10. Waiver of Claims. Borrower warrants and represents to Lender that as of
the date hereof the Note is subject to no credits, charges, claims, or rights of
offset or deduction of any kind or character whatsoever; and the Borrower
releases and discharges Lender from any and all claims and causes of action,
whether known or unknown and whether now existing or hereafter arising,
including, without limitation, any usury claims, that have at any time been
owned, or that are hereafter owned by Borrower and that arise out of or are
related to the execution, delivery and performance of the Loan Documents.
11. Special Notices to Borrower and All Other Obligors. THIS LOAN IS
PAYABLE IN FULL NO LATER THAN MARCH 31, 2000. AT MATURITY, YOU MUST PAY THE
ENTIRE UNPAID PRINCIPAL BALANCE OF THE LOAN AND ACCRUED UNPAID INTEREST THEN
DUE. THE LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. YOU
WILL THEREFORE BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS YOU MAY OWN, OR
YOU WILL HAVE TO FIND A LENDER WILLING TO LEND THE MONEY AT PREVAILING MARKET
RATES, WHICH MAY BE CONSIDERABLY HIGHER THAN THE INTEREST RATE ON THIS LOAN. IF
YOU REFINANCE THIS LOAN AT MATURITY, YOU MAY HAVE TO PAY SOME OR ALL OF THE
CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN EVEN IF YOU OBTAIN REFINANCING
FROM THE SAME LENDER.
12. Costs and Expenses. Borrower agrees to pay, within three (3) business
days of execution of this Agreement, all costs and expenses incurred by Lender
in connection with the execution and consummation of this Agreement, including,
without limitation, the reasonable fees and expenses of Lender's counsel
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Bird, L.L.P. on behalf of the Lender(s).
13. Governing Law. The terms and provisions hereof shall be governed by and
construed in accordance with the Applicable Law.
14. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and each
of the parties hereto hereby represent, warrant, and covenant to the other that
the persons executing this Agreement on behalf of each such party have full
authority, power, and authorization to execute such document and to bind its
principal.
15. Entire Agreement. This Agreement supersedes all prior oral and written
agreements and understandings of the parties hereto with respect to the subject
matter hereof.
16. Headings. The headings of the sections and subsections hereof are
inserted as a matter of convenience and for reference only and in no way define,
limit or describe the scope of this Agreement or the meaning of any provision
hereof.
17. Waivers. The failure of any party to act to enforce rights under any of
the Loan Documents shall not be deemed a waiver and shall not preclude
enforcement of any rights in the Loan Documents. No waiver of any term or
provision of any of the Loan Documents on the part of a party shall be effective
for any purpose whatsoever unless such waiver is in writing and signed by such
party.
18. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable. This Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
19. Notices. Any request, demand, authorization, direction, notice,
consent, waiver, instruction, document or other communication provided or
permitted by this Agreement to be made upon, given or furnished to, or filed
shall be sufficient for every purpose hereunder if in writing and mailed,
registered or certified mail, postage prepaid or delivered by facsimile or
telecopier (if confirmed), as follows:
If to Borrower, to:
Allstate Financial Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
With copies to:
Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L. L. P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
If to Lender, to:
Value Partners, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
With copies to:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Bird L.L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇, Esquire
20. Attorneys' Fees. In the event attorneys' fees or other costs are
incurred to secure performance of any of the obligations herein provided for, or
to establish damages for the breach thereof, or to obtain any other appropriate
relief, whether by way of prosecution or defense, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs incurred therein.
21. Further Assurances. Each party hereto agrees to execute any and all
documents, and to perform such other acts, whether before or after closing, that
may be reasonably necessary or expedient to further the purposes of this
Agreement or to further assure the benefits intended to be conferred hereby.
22. NOTICE OF INVALIDITY OF ORAL AGREEMENTS. THIS WRITTEN AGREEMENT, THE
LOAN DOCUMENTS, AND ALL EXHIBITS HERETO REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
23. Usury. All agreements between Borrower and Lender, whether now existing
or hereafter arising and whether written or oral, are hereby limited so that in
no contingency, whether by reason of demand or acceleration of the Final
Maturity Date, as that term is defined in the Note, or otherwise, shall the
interest contracted for, charged, received, paid or agreed to be paid to Lender
exceed the maximum amount permissible under the Applicable Law. If, from any
circumstance whatsoever, interest would otherwise be payable to Lender in excess
of the maximum amount permissible under the Applicable Law, the interest payable
to Lender shall be reduced to the maximum amount permissible under the
Applicable Law, and if from any circumstance Lender shall ever receive anything
of value deemed interest by the Applicable Law in excess of the maximum amount
permissible under the Applicable Law, an amount equal to the excessive interest
shall be applied to the reduction of the principal hereof and not to the payment
of interest, or if such excessive amount of interest exceeds the unpaid balance
of principal hereof, such excess shall be refunded to Borrower. All interest
paid or agreed to be paid to Lender shall, to the extent permitted by the
Applicable Law, be amortized, prorated, allocated and spread throughout the full
period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount
permissible under the Applicable Law. Lender expressly disavows any intent to
contract for, charge or receive interest in an amount which exceeds the maximum
amount permissible under the Applicable Law. This paragraph as well as similar
paragraphs as set forth in the Note shall control all agreements between
Borrower and Lender.
24. Counterparts. This Agreement may be executed in separate or multiple
counterparts by the parties, and all of such counterparts shall be considered as
one and the same instrument notwithstanding the fact that various counterparts
are signed by only one or more of the parties, and all of such Agreements shall
be deemed but one and the same Agreement.
EXECUTED as of the date first above written.
LENDER:
VALUE PARTNERS, LTD.
By:/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Partner of ▇▇▇▇▇ & Partners
general partner of Value Partners, Ltd.
Its: General Partner
BORROWER:
ALLSTATE FINANCIAL CORPORATION
By:/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Its: Chief Executive Officer