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10.155
CONSENT OF GUARANTOR
(AMENDMENT NO. 4 TO SECOND AMENDED AND
RESTATED AND CONSOLIDATED LOAN AND SECURITY AGREEMENT)
The undersigned, MEGO FINANCIAL CORP., a New York corporation
(formerly named Mego Corp.) ("Guarantor"), hereby acknowledges that Guarantor
executed and delivered to GREYHOUND REAL ESTATE FINANCE COMPANY, an Arizona
corporation ("GREFCO"), an Amended and Restated Guarantee and Subordination
Agreement dated as of May 10, 1989 (the "Guarantee"), guaranteeing performance
of the obligations of PREFERRED EQUITIES CORPORATION, a Nevada corporation
("Borrower"), to Lender (as hereinafter defined) under the Loan Agreement, the
Note and other Documents (as the terms "Loan Agreement," "Note" and "Documents"
are defined in the Guarantee). All terms used herein with initial capital
letters, to the extent not otherwise defined in the Guarantee or this Consent,
shall have the meanings given such terms in the Amended and Restated Loan
Agreement (as defined below), as amended.
GREFCO has assigned the Note and all of GREFCO's rights and
obligations under the Loan Agreement and the other Documents to FINOVA CAPITAL
CORPORATION, a Delaware corporation (formerly known as Greyhound Financial
Corporation) ("Lender"), pursuant to a plan of liquidation between GREFCO and
Lender.
With Guarantor's ratification, consent and approval, Borrower and
Lender amended and restated the Loan Agreement pursuant to that certain Second
Amended and Restated and Consolidated Loan and Security Agreement dated May 15,
1997 (the "Amended and Restated Loan Agreement").
Guarantor hereby acknowledges that, pursuant to the terms of that
Amendment No. 4 to Second Amended and Restated and Consolidated Loan and
Security Agreement (the "Fourth Amendment") of even date herewith, Lender
proposes to (i) to make a single Advance to Borrower in the amount of One
Million One Hundred Thousand Dollars ($1,100,000) (the "Xxxxxxx Addition
Readvance") which shall constitute a readvance of a portion of the principal
amount that has been repaid under the Xxxxxxx Building Addition Note, (ii) to
make a single Advance to Borrower in the amount of Eight Hundred Thousand
Dollars ($800,000) (the "Xxx Addition Readvance") which shall constitute a
readvance of a portion of the principal amount that has been repaid under the
Xxx Building Addition Note, (iii) to make a single Advance to Borrower in the
amount of Six Hundred Thousand Dollars ($600,000) (the "Aloha Bay Readvance")
which shall constitute a readvance of a
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portion of the principal amount that has been repaid under the Aloha Bay Note,
and (iv) to modify certain eligibility criteria and other covenants contained in
the Amended and Restated Loan Agreement, which conditions include the pledging
by Borrower to Lender of certain real property which is identified as the
Calvada Sports Complex in the Fourth Amendment.
Guarantor further acknowledges that (i) the Xxxxxxx Addition
Readvance, the Xxx Addition Readvance and the Aloha Bay Readvance will be
evidenced by amended and restated notes (individually, the "Xxxxxxx Addition
Readvance Note," the "Xxx Addition Readvance Note" and the "Aloha Bay Readvance
Note", respectively, and, collectively, the "Readvance Notes") to be executed
and delivered to Lender by Borrower simultaneously with execution of the Fourth
Amendment; (ii) the Xxxxxxx Addition Readvance and the Xxxxxxx Addition
Readvance Note are secured, in part, by the Xxxxxxx Building Addition Deed of
Trust, (iii) the Xxx Addition Readvance and the Xxx Addition Readvance Note are
secured, in part, by the Xxx Building Addition Deed of Trust, (iv) the Aloha Bay
Readvance and the Aloha Bay Readvance Note are secured, in part, by the Aloha
Bay Mortgage, and (v) pursuant to the terms and conditions of the Fourth
Amendment, Lender and Borrower are modifying and amending the Xxxxxxx Building
Addition Deed of Trust, the Xxx Building Addition Deed of Trust and the Aloha
Bay Mortgage (such modifications being hereinafter referred to as the "Readvance
Deed of Trust/Mortgage Modifications").
Guarantor consents to the Fourth Amendment, the Xxxxxxx Addition
Readvance, Xxx Addition Readvance and Aloha Bay Readvance, the Readvance Notes
and the Readvance Deed of Trust/Mortgage Modifications and agrees that (i) the
Guarantee shall remain in full force and effect, (ii) the obligations of the
Guarantor under the Guarantee are joint and several with those of each other
Obligor (as that term is defined in the Guarantee), (iii) Guarantor's liability
under the Guarantee shall continue undiminished by and shall include the
obligations of the Borrower under the Fourth Amendment, the Xxxxxxx Addition
Readvance, Xxx Addition Readvance and Aloha Bay Readvance, the Readvance Notes
and the Readvance Deed of Trust/Mortgage Modifications, and (iv) all terms,
conditions and provisions set forth in the Fourth Amendment, the Readvance
Notes, the Readvance Deed of Trust/Mortgage Modifications and all other
Documents executed in connection therewith, are hereby ratified, approved and
confirmed.
Guarantor reaffirms as if made on the date hereof all of
Guarantor's representations and warranties contained in the Guarantee except as
otherwise set forth in the Amended and Restated Loan Agreement, in the Fourth
Amendment or on EXHIBIT 1 attached hereto. Guarantor acknowledges that as of the
date hereof, it has (a) no defense, counterclaim, offset, cross-complaint, claim
or demand of any nature whatsoever which can be asserted as a basis to seek
affirmative relief or damages
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from Lender or GREFCO or as a basis to reduce or eliminate all or any part of
its liability under the Guarantee, and (b) no other claim against Lender or
GREFCO with respect to any portion of the transaction described in the
Documents.
IN WITNESS WHEREOF, Xxxxxxxxx has hereunto executed this
instrument as of the _____ day of November, 1998.
MEGO FINANCIAL CORP., a New York
corporation
By _________________________________
Its ________________________________
STATE OF _____________ )
) ss.
COUNTY OF ____________ )
BEFORE ME, the undersigned authority, a Notary Public in and for
the County and State aforesaid, on this day personally appeared
____________________________________________________________________, known to
me to be the __________________________ of MEGO FINANCIAL CORP., a New York
corporation, who acknowledged to me that the same was the free act and deed of
such corporation and that s/he being authorized by proper authority to do so,
executed the same on behalf of such corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of
_____________, 1998.
____________________________________
Notary Public
My Commission Expires:
_____________________________
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EXHIBIT 1 TO
CONSENT OF GUARANTOR
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES REAFFIRMED
BY GUARANTOR PURSUANT TO THIS CONSENT
[IF NONE, INSERT "NONE"]
NONE
