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EXHIBIT 10.214
FOURTH AMENDMENT TO
ACQUISITION AND CONSTRUCTION LOAN AGREEMENT
THIS FOURTH AMENDMENT TO ACQUISITION AND CONSTRUCTION LOAN
AGREEMENT (the "Third Amendment") is made as of the 7th day of September, 2000
by and between Xxxxxx Financial, Inc., a Delaware corporation ("Lender") whose
address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and Preferred
Equities Corporation, a Nevada corporation ("Borrower") whose address is 0000
Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000.
WHEREAS, the parties entered into that certain Acquisition and
Construction Loan Agreement dated March 27, 1996, as amended by that certain
Amendment to Acquisition and Construction Loan Agreement dated December 23,
1997, that certain Second Amendment to Acquisition and Construction Loan
Agreement dated July 7, 1998, and that certain Third Amendment to Acquisition
and Construction Loan Agreement dated December 22, 1999 (collectively and as
amended hereby, the "Agreement"); and
WHEREAS, the parties desire to further amend the Agreement pursuant
to the terms and conditions as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties agree as follows:
1. The Recitals set forth above are true and correct and
incorporated herein by reference.
2. Section 1.1 regarding Acquisition Commitment is hereby amended
to provide that the term "Acquisition Commitment" shall be deemed to be
increased hereby and include an additional One Million Dollars and No/100
($1,000,000.00) which shall be hereafter referred to as the "Third Supplemental
Acquisition Commitment" and shall be for the purpose of providing Borrower with
additional working capital.
3. Section 1.2 regarding Acquisition Note is hereby amended to add
to the end thereof the phrase "together with any and all promissory notes given
to evidence funds advanced pursuant to the Third Supplemental Acquisition
Commitment, and shall also include any and all amendments, modifications and
substitutions thereof, including, but not limited to, that certain Future
Advance Acquisition Promissory Note No. 4 dated as of September 7, 2000, in the
amount of One Million Dollars and No/100 ($1,000,000.00) which shall be replaced
by that certain Amended, Restated and Consolidated Acquisition Promissory Note
No. 3 which shall evidence the Third Supplemental Acquisition Commitment in the
amount of One Million Dollars and No/100 ($1,000,000.00) plus the outstanding
balance of that certain Amended and Restated Acquisition
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Promissory Note No. 2 dated February 1, 2000 in the original principal amount of
Three Million Five Hundred Twenty-Eight Thousand One Hundred Sixty Dollars
($3,528,160.00)."
4. Section 1.21, Events of Default, is hereby amended to add the
following:
(p) Failure of the Borrower to maintain the Ratio of
Indebtedness to Tangible Net Worth at or below 4.0:1.0.
5. Section 1.35, Interval Release Payment, is deleted in its
entirety and replaced with the following:
1.35 Interval Release Payment. The term "Interval Release Payment" shall
mean mandatory payments in the amount of Two Thousand Six Hundred
Dollars and No/100 ($2,600.00) upon the sale of each Interval Unit, to
be applied in the following manner: (i) Two Thousand One Hundred Dollars
and No/100 ($2,100.00) per Interval Unit to be applied first to interest
due and payable and then to the principal balance outstanding from time
to time under the Acquisition Commitment, (ii) Five Hundred Dollars and
No/100 ($500.00) per Interval Unit to be applied first to interest due
and payable and then to the principal balance outstanding from time to
time under the Renovation Commitment, and (iii) in the event that no
interest is due or principal balance is outstanding under either (i) or
(ii) above, then the entire Interval Release Payment shall be applied to
the interest due and payable and then to the principal balance
outstanding under the remaining Commitment. The sale of such Interval
Units may be by (i) direct cash payment to Borrower, or (ii) installment
purchase financed by Borrower or third parties. Upon the making of these
Interval Release Payments and the Interval Incentive Fee and provided
Borrower is not in default hereunder, Lender shall release such Interval
Unit from the Mortgage.
6. Section 1.38 regarding Loan is deleted in its entirety and
replaced by the following:
The term "Loan" shall mean the loan by Lender to Borrower, in the
maximum amount of the Acquisition and Renovation Commitment, not to
exceed, in the aggregate, the advance of (a) the lesser of Eight Million
Eight Hundred Five Thousand Dollars and No/100 ($8,805,000.00) or 90% of
the costs of acquisition of the Property plus (b) 100% of the costs of
labor, materials, and services supplied for the construction of the
Improvements and all other expenses incident to construction of the
Property, as to each item only to the extent specified in the Approved
Budget which amount shall not exceed a total of Four Million Five
Hundred Twenty-Three Thousand Dollars and No/100 ($4,523,000.00) over
the term of the Loan and shall not exceed the amount of Two Million Five
Hundred Thousand Dollars and No/100 ($2,500,000.00) outstanding at any
one time.
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7. Section 1.39 regarding Loan Commitment is deleted in its
entirety and replaced by the following:
The term "Loan Commitment" shall mean a maximum of Thirteen Million
Three Hundred Twenty-Eight Thousand Dollars and No/100 ($13,328,000.00),
which is the maximum amount of Advances of the Loan which Lender may be
obligated to make under this Loan Agreement, and is comprised of the
Acquisition Commitment and the Renovation Commitment.
8. Section 1.42 regarding Net Worth is deleted in its entirety and
replaced by the following:
The term "Net Worth" shall mean consolidated tangible net worth in
the amount of Twenty-Five Million Dollars and No/100 ($25,000,000.00) and, upon
delivery of Borrower's audited financial statements for each year commencing
with fiscal year 2000, the amount of Twenty-Five Million Dollars and No/100
($25,000,000.00) plus sixty percent (60%) of Borrower's aggregate net income for
the most recently reported fiscal year, as determined on an accrual basis,
including provision for all income taxes (current and deferred) in accordance
with GAAP without taking into consideration any sums due Borrower from
Guarantor.
9. Article 1, Definitions, is amended to include the following:
The term "Ratio of Indebtedness to Tangible Net Worth" shall mean
the ratio of (a) Borrower's current and long-term notes payable, determined in
accordance with GAAP to (b) Borrower's Net Worth.
10. Section 1.51 regarding Title Insurance is hereby amended to
provide for a title insurance policy in the amount of Fourteen Million Three
Hundred Five Thousand and No/100 Dollars ($14,305,000.00).
11. Section 2.1 regarding Commitment of Lender is hereby amended to
provide that the term of the of the Acquisition Loan shall be until June 30,
2002.
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12. Section 4.1(b) regarding Mandatory Payments is hereby deleted
and replaced with the following:
So long as there is any indebtedness outstanding under the Acquisition
Note or the Renovation Note, if during the period of the Loan Agreement ending
on the following dates ("Ending Dates"), the outstanding principal balance of
the Loan evidenced by such notes exceeds the following amounts ("Maximum
Principal Balance"), the Borrower shall pay the amount of such excess
immediately to Lender:
Ending Dates Maximum Principal Balance
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November 30, 2000 $3,360,761.00
February 28, 2001 $2,814,761.00
May 31, 2001 $2,268,761.00
August 31, 2001 $1,722,761.00
November 30, 2001 $1,176,761.00
February 28, 2002 $ 630,761.00
May 31, 2002 $ 84,761.00
June 30, 2002 $ 0.00.
13. Section 6.16 regarding Commitment Fee is hereby amended by
adding the following thereto:
Borrower has agreed to pay Lender a commitment fee in the amount of
one percentage point in connection with the Third Supplemental
Acquisition Commitment, in accordance with which the amount of Ten
Thousand Dollars and No/100 ($10,000.00) shall be withheld by Lender
from disbursement of the Third Supplemental Acquisition Commitment.
14. In connection with this Amendment, Borrower hereby certifies
that (a) all Borrower's representations, warranties, covenants and agreements
contained in the Agreement are true and correct and in full force and effect as
of the date hereof with the exception that (i) the Financial Statements
referenced in Section 3.3 of the Agreement are true, correct and complete as
reflected in the quarterly financial report dated May 31, 2000, and the monthly
financial report dated June 30, 2000, and (ii) there are no material adverse
changes to the information reflected in the disclosure of litigation matters
concerning PEC and dated October 6, 1999, (b) as of the date hereof there are no
Events of Default thereunder, and (c) all of the Loan Instruments as defined
therein are in full force and effect.
15. Except as modified by this Amendment, all other terms and
conditions of the Agreement and other Loan Instruments shall remain in full
force and effect. Should Borrower
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currently be in default under the Agreement, which default would not have
existed if this Amendment were effective, such default is hereby waived.
16. As consideration for, and as a mutual inducement to Lender
entering into this Amendment, Borrower hereby waives and releases any and all
setoffs, counterclaims and defenses it has of the date hereof with respect to
the Loans and performance by Lender under the Loan Instruments, and hereby
acknowledges that Lender has fully performed all of its obligations and is not
in default under the Loan Instruments. Execution of this Amendment shall not be
deemed to constitute a waiver or release by Lender of any its rights or remedies
under the Loan Instruments.
IN WITNESS whereof the parties have executed this Agreement as of
the date above.
PREFERRED EQUITIES CORPORATION, XXXXXX FINANCIAL, INC., a
a Nevada corporation Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXXXXX By:
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XXXXXXX X. XXXXXXXXXXX
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Print Name Print Name
Its: VP/CAO Its:
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APPROVED BY GUARANTOR:
MEGO FINANCIAL CORP., a
New York corporation
By: /s/ XXXXXXX X. XXXXXXXXXXX
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XXXXXXX X. XXXXXXXXXXX
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Print Name
Its: VP/CAO
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