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EXHIBIT 10.196
THIRD AMENDMENT TO FORBEARANCE AGREEMENT AND
AMENDMENT NO. 8 TO SECOND AMENDED AND RESTATED AND
CONSOLIDATED LOAN AND SECURITY AGREEMENT
This Third Amendment to Forbearance Agreement and Amendment
No. 8 to Second Amended and Restated and Consolidated Loan and Security
Agreement ("Amendment") is made and entered into this _9th day of November,
1999, but effective for all purposes as of September 30, 1999 (the "Effective
Date"), by and among FINOVA CAPITAL CORPORATION, a Delaware corporation
("FINOVA" or "Lender"), PREFERRED EQUITIES CORPORATION, a Nevada corporation
("Borrower") and MEGO FINANCIAL CORP., a New York corporation ("Guarantor") and
has reference to the following facts:
A. Lender and Borrower entered into a Second Amended and
Restated and Consolidated Loan and Security Agreement dated as of May 15, 1997
(the "Original Loan Agreement") that evidences a loan from Lender to Borrower.
The Original Loan Agreement was amended by the Hartsel Springs Side Letter dated
February 18, 1998 (the "First Amendment"); by the Letter Agreement [Biloxi
Property] dated March 20, 1998 (the "Second Amendment"); by the Letter Agreement
[Headquarters Readvance] dated September 29, 1998 (the "Third Amendment"), by
the Amendment No. 4 to Second Amended and Restated and Consolidated Loan and
Security Agreement dated November 6, 1998 (the "Fourth Amendment"); by that
certain Forbearance Agreement and Amendment No. 5 to Second Amended and Restated
and Consolidated Loan and Security Agreement dated December 23, 1998, as the
same was amended by a Letter Agreement dated February 8, 1999 (the "Fifth
Amendment"); a First Amendment to Forbearance Agreement and Amendment No. 6 to
Second Amended and Restated and Consolidated Loan and Security Agreement dated
May 7, 1999 (the "Sixth Amendment"); a Second Amendment to Forebearance
Agreement and Amendment No. 7 to Second Amended and Restated and Consolidated
Loan and Security Agreement dated August 6th, 1999 (the "Seventh Amendment");
and, a September 7, 1999 letter agreement regarding the Additional Advance Note
(the "Additional Advance Letter"). The Original Loan Agreement, First Amendment,
Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth
Amendment, Seventh Amendment and Additional Advance Letter are collectively
called the "Loan Agreement." Capitalized terms used in this Amendment which are
defined in the Loan Agreement shall have the same meaning and definition when
used herein.
B. Borrower has requested the Lender to make certain
modifications to the Loan Agreement and the Loan, which the Lender is willing to
do, upon and subject to the terms and conditions set forth in this Amendment.
Now, therefore, in consideration of the foregoing and for the
good and valuable consideration provided herein, Lender, Borrower and Guarantor
agree as follows:
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1. On the Effective Date, the provisions of Article 1 of the
Loan Agreement is amended to add the following definition:
"Eighth Amendment": shall mean and collectively refer
to the Third Amendment to Forbearance Agreement and Amendment No. 8 to
Second Amended and Restated and Consolidated Loan and Security
Agreement made and entered into on November __, 1999 but effective for
all purposes as of September 30, 1999 among Borrower, Lender and
Guarantor.
2. As of the Effective Date, the Loan Agreement is amended in
the following respects with respect to the Additional Advance Note:
(a) the Maturity Date of the Additional Advance Note
is amended to December 31, 2000; and
(b) in the event that the aggregate amount of Project
Release Fees payments actually received by the Lender prior to March
31, 2000 does not equal or exceed $2,000,000.00 (the amount, if any, by
which the aggregate amount of Project Release Fees payments actually
received by the Lender prior to March 31, 2000 is less than
$2,000,000.00, is called the "Release Fee Shortfall"), then the
Borrower shall, on March 31, 2000, pay to Lender a payment on the
outstanding principal balance of the Additional Advance Note in an
amount equal to the Release Fee Shortfall.
The foregoing amendments to the Additional Advance Note shall
also be evidenced by the Borrower executing and delivering to the Lender an
allonge to Additional Advance Note in a form acceptable to the Lender (the
"Additional Advance Allonge").
3. The Office Note was amended by the Sixth Amendment so as to
require the payment of interest only for the period (the "Interest Only Period")
commencing with the payment due on January 1, 1999 and continuing for each
subsequent payment due until August 1, 1999. On the Effective Date, the Office
Note is amended to continue the Interest Only Period through the payment due on
the due on December 1, 2000. The Borrower acknowledges that commencing with the
monthly payment due on January 1,2001 and thereafter for the balance of the term
of the Office Note, the Borrower will once again be required to make monthly
payments of principal and interest as more fully described in the Office Note.
The principal payments deferred during the period commencing on June 1, 1999 and
continuing thereafter for the balance of the Interest Only Period shall continue
to accrue interest at the rate set forth in the Office Note and shall be payable
on the Maturity Date of the Office Note unless the Office Note is previously
accelerated pursuant to the provisions of the Loan Agreement at which time the
entire unpaid balance of the Office Note together with all accrued and unpaid
interest shall be due and payable. The foregoing amendments to the
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Office Note shall also be evidenced by the Borrower executing and delivering to
Lender an Allonge to the Office Note in a form acceptable to the Lender (the
"Office Note Allonge").
4. In partial consideration for the Lender's agreements
contained in the Loan Agreement, the Borrower agrees that the Lender may retain
all Net Proceeds (defined below) derived from the sale of the Biloxi Property,
the Headquarters Building and the FCFC Property and apply the same to the
outstanding principal of the Additional Advance Note. For purposes of this
Amendment, the term "Net Proceeds" refers to actual sales proceeds received from
the sale of (i) the Biloxi Property net of all closing and other costs incurred
and paid by Borrower in connection with such sale and repayment to the Lender of
all sums due under the Biloxi Note; and (ii) the Headquarters Building and/or
the FCFC Building net of all closing and other costs incurred and paid by
Borrower in connection with such sale and repayment to the Lender of all sums
due under the Office Note.
5. Lender's obligations under this Amendment are subject to
the satisfaction of the following conditions hereinafter set forth below:
(a) This Amendment shall have been fully signed by
Borrower and Guarantor.
(b) Lender has received, on or before November 9,
1999, the following all in a form and content acceptable to Lender:
(i) The Additional Advance Allonge and
Office Note Allonge executed by Borrower (the foregoing
instruments are collectively called the "Allonge");
(ii) Current updates of the opinion letters
received by Lender in connection with the Loan Agreement;
(iii) The Borrower and Guarantor supplying
to Lender an updated litigation status report with respect to
the Borrower and Guarantor;
(iv) Such resolutions and authorizations and
such other documents as Lender may require relating to the
existence and good standing of Borrower and Guarantor, and the
authority of any person executing this Amendment and other
documents on behalf of Borrower and Guarantor; and
(v) Such other documents or instruments as
required by Lender so as to fully perfect the liens and
security interest of Lender granted under the Loan Agreement.
(c) Borrower shall have reimbursed Lender for all of
Lender's out-of-pocket costs and expenses including, without
limitation, attorneys', engineers'
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and other consultants' fees and costs, incurred in connection with the
documentation and closing of this Amendment.
(d) Borrower shall have paid to Lender the Amendment
Fee (defined below).
6. The provisions of the Fifth Amendment (as amended by the
Release Letter) requires the Borrower to pay to the Lender a Project Release Fee
in order to obtain releases of the Forebearance Collateral. The Borrower has
obtained an offer to sell the Former STP Site for approximately $140,000, which
the Buyer desires to accept. Provided the Borrower (i) sells the Former STP Site
on terms no less favorable to the Borrower than those which the Borrower has,
prior to the Effective Date, disclosed to the Lender, and (ii) concurrently with
the closing of the sale, pays to the Lender a Project Release Fee of $140,000
(net of all closing and other costs incurred and paid by Borrower in connection
with the sale), then the Lender agrees to release the Lender's liens upon the
Former STP Site. The obligations of the Lender under this Paragraph shall
automatically terminate in the event that the closing of the transactions
contemplated by this Paragraph and the payment to the Lender of the Project
Release Fee contemplated by this Paragraph, do not occur on or before December
31, 1999. The Borrower agrees to reimburse the Lender for all costs and expense
incurred by the Lender in connection with the release of the Former STP Site.
7. In consideration of, among other things, the consent of the
Lender to this Amendment and the agreement of the Lender to enter into the
Allonge, Borrower agrees to pay to Lender, upon Borrower's execution of this
Amendment, the amount of Fifteen Thousand Dollars ($15,000.00) (the "Amendment
Fee"). The Amendment Fee has been fully earned by Lender and is nonrefundable.
8. Borrower and Guarantor each represents and warrants that:
(a) All financial information and other documents it
has provided to Lender in connection with this Amendment are true,
complete and correct as of the date provided and the date hereof;
(b) There exists no Event of Default or Incipient
Default, after giving effect to the then applicable provisions of this
Amendment and other than the Existing Events of Default;
(c) After giving effect to this Amendment, there has
been no material adverse change in any real property or in the business
or financial condition of Borrower and Guarantor since the date of the
last financial statements submitted to Lender; and
(d) After giving effect to this Amendment (including
but not limited to the litigation update supplied pursuant to Paragraph
5(b)(iii) hereof), all
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representations and warranties by Borrower and Guarantor remain
true, complete, and correct, in all material respects as of the date
hereof.
9. Guarantor acknowledges 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 this Amendment and any other documents and instruments
executed by Borrower in connection with this Amendment and each of the other
Documents, as amended through the date hereof and (iv) all terms, conditions and
provisions set forth in this Amendment, the Additional Advance Note, and the
Office Note, as the same have been amended hereby and by the Allonge, and any
other documents and instruments executed by Borrower in connection with this
Amendment and each of the other Documents, as amended through the date hereof,
are hereby ratified, approved and confirmed.
10. Borrower and Guarantor acknowledge and agree that they
have no defenses, counterclaims, setoffs, recoupments or other adverse claims or
causes of action in tort, contract or of any other kind existing against Lender
or with respect to the Documents, including without limitation, claims regarding
the amount, validity, perfection, priority and enforceability of the Documents.
11. The Documents shall be deemed amended by the provisions of
this Amendment, as and when applicable and any conflict or inconsistency between
this Amendment and the Documents shall be resolved in favor of this Amendment.
Except as so amended, all other consistent terms and conditions of the Documents
will remain in full force and effect.
12. Except as may be expressly provided herein, Borrower's and
Guarantor's respective obligations under the Documents shall remain in full
force and effect and shall not be waived, modified, superseded or otherwise
affected by this Amendment. This Amendment is not a novation, nor is it be
construed as a release, waiver, extension of forbearance or modification of any
of the terms, conditions, representations, warranties, covenants, rights or
remedies set forth in any of the Documents, except as expressly stated herein.
13. Borrower and Guarantor acknowledge that Lender has
performed, and is not in default of, its obligations under the Documents; that
there are no offsets, defenses or counterclaims in tort, contract or otherwise,
with respect to any of Borrower's or Guarantor's or other party's obligations
under the Documents; and that Lender has not directed Borrower to pay or not pay
any of Borrower's payables.
14. Borrower and Guarantor will execute and deliver such
further instruments and do such things as in the judgment of Lender are
necessary or desirable to effect the intent of this Amendment and to secure to
Lender the benefits of all rights and
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remedies conferred upon Lender by the terms of this Amendment and any other
documents executed in connection herewith.
15. If any provision of this Amendment is held to be
unenforceable under present or future laws effective while this Amendment is in
effect (all of which invalidating laws are waived to the fullest extent
possible), the enforceability of the remaining provisions of this Amendment
shall not be affected thereby. In lieu of each such unenforceable provision,
there shall be added automatically as part of this Amendment a provision that is
legal, valid and enforceable and is similar in terms to such unenforceable
provisions as may be possible.
16. Any further discussions by and among Borrower, Guarantor
and Lender, if any, and all such discussions in the past, together with any
other actions or inactions taken by and among Borrower, Guarantor and Lender,
shall not cause a modification of the Documents, establish a custom or waive
(unless Lender made such express waiver in writing), limit or condition the
rights and remedies of Lender under the Documents, all of which rights and
remedies are expressly reserved. All of the provisions of the Documents,
including, without limitation, the time of the essence provision, are hereby
reiterated and if ever waived are hereby reinstated (unless Lender made such
express waiver in writing), except as expressly provided herein.
17. This Amendment shall not be binding upon Lender until
accepted by Borrower and Guarantor as provided for below. This Amendment may be
executed in counterpart, and any number of which have been executed by all
parties shall be deemed to constitute one original. Lender, its attorneys and
agents may also integrate into a single Amendment signature pages from separate
counterpart Amendments. The telecopied signature of a person shall be deemed an
original signature, may be relied upon by others and shall be binding upon the
signer for all purposes provided however that Borrower, Guarantor or any person
otherwise consenting hereto by telecopied signature shall confirm its telecopied
signature by signing and returning to Lender a copy of this Amendment with an
original signature.
18. Borrower's and Guarantor's representatives are experienced
and knowledgeable business people and have been represented by independent legal
counsel who are experienced in all matters relevant to this Amendment,
including, but not limited to, bankruptcy and insolvency law. The parties hereto
have accepted and agreed to this Amendment after being fully aware and advised
of the effect and significance of all of its terms, conditions, and provisions.
19. Unless otherwise specifically stipulated elsewhere in the
Documents, if a matter is left in the Documents or this Amendment to the
decision, right, requirement, request, determination, judgment, opinion,
approval, consent, waiver, satisfaction, acceptance, agreement, option or
discretion of Lender, its employees, Lender's counsel or any agent for or
contractor of Lender, such action shall be deemed to be exercisable by Lender or
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such other person in its sole and absolute discretion and according to standards
established in its sole and absolute discretion. Without limiting the generality
of the foregoing, "option" and "discretion" shall be implied by use of the words
"if" or "may."
20. The Recitals in this Amendment are incorporated into the
body hereof as fully set forth herein.
21. THIS AMENDMENT HAS BEEN EXECUTED AND DELIVERED AND SHALL
BE PERFORMED IN THE STATE OF ARIZONA. THE PROVISIONS OF THIS AMENDMENT AND ALL
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ARIZONA AND TO
THE EXTENT THEY PREEMPT SUCH LAWS, THE LAWS OF THE UNITED STATES. EACH OF
BORROWER, GUARANTOR AND LENDER: (A) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE
PROCESS, JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF ARIZONA, MARICOPA
COUNTY, AND TO THE PROCESS, JURISDICTION, AND VENUE OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA, FOR THE PURPOSES OF SUIT, ACTION OR
OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO ANY DOCUMENT OR THE SUBJECT
MATTER THEREOF, OR, IF LENDER SHALL INITIATE SUCH ACTION, IN THE COURT IN WHICH
SUCH ACTION IS INITIATED PROVIDED THAT SUCH COURT HAS JURISDICTION, AND THE
CHOICE OF SUCH VENUE SHALL IN ALL INSTANCES BE AT LENDER'S ELECTION; AND (B)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT
TO ASSERT BY WAY OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
THE ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN ANY
INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH OF BORROWER, GUARANTOR AND LENDER HEREBY WAIVE THE RIGHT TO
COLLATERALLY ATTACK ANY JUDGMENT OR ACTION IN ANY OTHER FORUM.
[SIGNATURE PAGE FOLLOWS]
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LENDER:
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:
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Its:
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BORROWER:
PREFERRED EQUITIES CORPORATION,
a Nevada corporation
By: Xxx X. Xxxxxx
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Its:Vice President
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Signed in the presence of:
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GUARANTOR:
MEGO FINANCIAL CORP.,
a New York corporation
By: Xxx X. Xxxxxx
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Its: Vice President
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Signed in the presence of:
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STATE OF NEVADA )
) ss.
County of Xxxxx )
The foregoing instrument was acknowledged before me this 9th
day of November 1999 by Xxx X. Xxxxxx as Vice President of PREFERRED EQUITIES
CORPORATION, a Nevada corporation, on behalf of the corporation.
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Notary Public
My Commission Expires:
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STATE OF NEVADA )
) ss.
County of )
The foregoing instrument was acknowledged before me this ____
day of November, 1999, by ______________ as _______________ of MEGO FINANCIAL
CORP., a New York corporation, on behalf of the corporation.
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Notary Public
My Commission Expires:
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STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged before me on November __,
1999, by ______________________, as _______________ of FINOVA CAPITAL
CORPORATION, a Delaware corporation.
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Notary
My Commission Expires:
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