EXHIBIT 10.248
AMENDMENT TO GUARANTEE
----------------------
AND SUBORDINATION AGREEMENT
---------------------------
This Amendment to Guarantee and Subordination Agreement (the "Amendment")
is made and entered into this 24th day of May, 2002, but effective as of March
1, 2002, by and between Mego Financial Corp., a New York corporation (formerly
known as Mego Corp.) ("Guarantor") and FINOVA Capital Corporation, a Delaware
corporation ("Lender"), successor in interest to Greyhound Real Estate Finance
Company, an Arizona corporation ("GREFCO").
RECITALS
--------
I. Guarantor executed and delivered to GREFCO an Amended and Restated
Guarantee and Subordination dated May 10, 1989 (the "Guarantee") guarantying the
performance of certain obligations owed by Leisure Homes Corporation, a Nevada
corporation, formerly known as Preferred Equities Corporation ("Borrower"), to
GREFCO.
II. GREFCO assigned to Lender all of the rights and obligations owed by
Borrower to GREFCO, pursuant to a plan of liquidation between GREFCO and Lender.
III. On even date herewith, Borrower and Lender have entered into a Tenth
Amendment to Forbearance Agreement and Amendment No. 15 to Second Amended and
Restated and Consolidated Loan and Security Agreement (the "Loan Amendment").
As a condition to the effectiveness of the Loan Amendment, the Lender has
required the execution of this Amendment.
NOW, THEREFORE, in consideration of these Recitals, the covenants contained
in this Amendment and for other good and valuable consideration, the receipt and
sufficiency is hereby acknowledged, Lender and Guarantor agree as follows:
1. Amendment. Paragraph 3.9 of the Guarantee shall be amended and restated
--------- --------------
in its entirety to read as follows:
3.9 Notwithstanding any payment or performance by Guarantor pursuant to
this Guarantee, Guarantor hereby waives and releases any right of reimbursement
and any right to be subrogated to any rights of Lender against Borrower.
Guarantor acknowledges that the foregoing waiver and release has been
specifically bargained for by Lender and has been relied upon by Lender in
ascribing value to this Guarantee, which reliance was a condition precedent to
Lender's willingness to extend the Loan to Borrower. Guarantor expressly waives
any defenses to the enforcement of this Guarantee, to any rights of Lender
created or granted hereby or to the recovery by Lender against Borrower,
Guarantor or any other Obligor of any deficiency after judicial or nonjudicial
foreclosure or sale, even though such a foreclosure or sale may impair the
1
subrogation rights of Guarantor or otherwise prevent Guarantor from obtaining
reimbursement or contribution from Borrower or any other Obligor.
2. Representations and Warranties. Guarantor represents and warrants
--------------------------------
to Lender that:
2.1 This Amendment and the documents and instruments executed in connection
herewith have been authorized by all necessary action and, when executed, will
be the legal, valid and binding obligations of the Guarantor, enforceable
against the Guarantor in accordance their respective terms.
2.2 Guarantor's execution, delivery and performance of this Amendment
does not and will not (i) violate any law, rule, regulation or court order to
which Guarantor is subject; (ii) conflict with or result in a breach of
Guarantor's organizational documents or any agreement or instrument to which
Guarantor is party or by which it or its properties are bound, or (iii) result
in the creation or imposition of any lien, security interest or encumbrance on
any property of Guarantor, whether now owned or hereafter acquired.
2.3 It has consulted with counsel and with such other experts and advisors
as it has deemed necessary in connection with the negotiation, execution and
delivery of this Amendment. This Amendment shall be construed without regard to
any presumption or rule requiring that it be construed against the party causing
this Amendment or any part hereof to be drafted.
3. Miscellaneous.
-------------
3.1 The Guarantee shall be deemed amended by the provisions of this
Amendment, as and when applicable and any conflict or inconsistency between this
Amendment and the Guarantee shall be resolved in favor of this Amendment.
Except as so amended, all other consistent terms and conditions of the Guarantee
will remain in full force and effect, and are hereby ratified and affirmed.
3.2 Except as may be expressly provided herein, Guarantor's obligations
under the Guarantee 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 Guarantee, except as expressly stated herein.
3.3 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
2
remedies conferred upon Lender by the terms of this Amendment and any other
documents executed in connection herewith.
3.4 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.
3.5 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.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO
AMENDMENT TO GUARANTEE AND
SUBORDINATION AGREEMENT]
IN WITNESS WHEREOF, this instrument is executed as of the date and year
first above written.
LENDER:
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:____________________________________________
Its:______________________________________
Signed in the presence of:
______________________________________
GUARANTOR:
MEGO FINANCIAL CORP.,
a New York corporation
By: s/s Xxx Xxxxxx
Its: Senior Vice President
Signed in the presence of:
s/s Xxxx Xxxxxx
4
STATE OF NEVADA )
) ss.
County of Xxxxx )
The foregoing instrument was acknowledged before me this 24 day of
MAY 2002, by s/s Xxxx Xxxxxx as Sr. V.P. of MEGO FINANCIAL CORP.,
a New York corporation, on behalf of the corporation.
s/s Xxxxx XxXxxxxxxx
_________________________________
Notary Public
My Commission Expires:
7/12/04
_______________________
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged before me this ___ day of _______________
2002, by ______________________, as _______________ of FINOVA CAPITAL
CORPORATION, a Delaware corporation, on behalf of the corporation.
_____________________________
Notary
My Commission expires:
5
AMENDMENT TO GUARANTEE
----------------------
AND SUBORDINATION AGREEMENT
---------------------------
This Amendment to Guarantee and Subordination Agreement (the "Amendment")
is made and entered into this _____ day of May, 2002, but effective as of March
1, 2002, by and between Mego Financial Corp., a New York corporation (formerly
known as Mego Corp.) ("Guarantor") and FINOVA Capital Corporation, a Delaware
corporation ("Lender"), successor in interest to Greyhound Real Estate Finance
Company, an Arizona corporation ("GREFCO").
RECITALS
--------
I. Guarantor executed and delivered to GREFCO a Guarantee and
Subordination dated March 30, 1989 (the "Guarantee") guarantying the performance
of certain obligations owed by Vacation Spa Resorts, Inc., a Tennessee
corporation ("VSR") ("Borrower"), to GREFCO.
II. GREFCO assigned to Lender all of the rights and obligations owed by VSR
to GREFCO, pursuant to a plan of liquidation between GREFCO and Lender.
III. VSR merged with and into Leisure Homes Corporation, a Nevada
corporation, formerly known as Preferred Equities Corporation ("Borrower") with
Borrower becoming liable for all of the liabilities and obligations of VSR.
VI. On even date herewith, Borrower and Lender have entered into a Tenth
Amendment to Forbearance Agreement and Amendment No. 15 to Second Amended and
Restated and Consolidated Loan and Security Agreement (the "Loan Amendment").
As a condition to the effectiveness of the Loan Amendment, the Lender has
required the execution of this Amendment.
NOW, THEREFORE, in consideration of these Recitals, the covenants contained in
this Amendment and for other good and valuable consideration, the receipt and
sufficiency is hereby acknowledged, Lender and Guarantor agree as follows:
1. Amendment. Paragraph 3.9 of the Guarantee shall be amended and restated
--------- --------------
in its entirety to read as follows:
3.9 Notwithstanding any payment or performance by Guarantor pursuant to
this Guarantee, Guarantor hereby waives and releases any right of reimbursement
and any right to be subrogated to any rights of Lender against Borrower.
Guarantor acknowledges that the foregoing waiver and release has been
specifically bargained for by Lender and has been relied upon by Lender in
ascribing value to this Guarantee, which reliance was a condition precedent to
Lender's willingness to extend the Loan to Borrower. Guarantor expressly waives
6
any defenses to the enforcement of this Guarantee, to any rights of Lender
created or granted hereby or to the recovery by Lender against Borrower,
Guarantor or any other Obligor of any deficiency after judicial or nonjudicial
foreclosure or sale, even though such a foreclosure or sale may impair the
subrogation rights of Guarantor or otherwise prevent Guarantor from obtaining
reimbursement or contribution from Borrower or any other Obligor.
2. Representations and Warranties. Guarantor represents and warrants
--------------------------------
to Lender that:
2.1 This Amendment and the documents and instruments executed in connection
herewith have been authorized by all necessary action and, when executed, will
be the legal, valid and binding obligations of the Guarantor, enforceable
against the Guarantor in accordance their respective terms.
2.2 Guarantor's execution, delivery and performance of this Amendment does not
and will not (i) violate any law, rule, regulation or court order to which
Guarantor is subject; (ii) conflict with or result in a breach of Guarantor's
organizational documents or any agreement or instrument to which Guarantor is
party or by which it or its properties are bound, or (iii) result in the
creation or imposition of any lien, security interest or encumbrance on any
property of Guarantor, whether now owned or hereafter acquired.
2.3 It has consulted with counsel and with such other experts and advisors
as it has deemed necessary in connection with the negotiation, execution and
delivery of this Amendment. This Amendment shall be construed without regard to
any presumption or rule requiring that it be construed against the party causing
this Amendment or any part hereof to be drafted.
3. Miscellaneous.
-------------
3.1 The Guarantee shall be deemed amended by the provisions of this Amendment,
as and when applicable and any conflict or inconsistency between this Amendment
and the Guarantee shall be resolved in favor of this Amendment. Except as so
amended, all other consistent terms and conditions of the Guarantee will remain
in full force and effect, and are hereby ratified and affirmed.
3.2 Except as may be expressly provided herein, Guarantor's obligations
under the Guarantee 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 Guarantee, except as expressly stated herein.
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3.3 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
remedies conferred upon Lender by the terms of this Amendment and any other
documents executed in connection herewith.
3.4 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.
3.5 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.
[SIGNATURE PAGE FOLLOWS]
8
------
[SIGNATURE PAGE TO
AMENDMENT TO GUARANTEE AND
SUBORDINATION AGREEMENT]
IN WITNESS WHEREOF, this instrument is executed as of the date and year
first above written.
LENDER:
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:____________________________________________
Its:______________________________________
Signed in the presence of:
_______________________________________________
GUARANTOR:
MEGO FINANCIAL CORP.,
a New York corporation
By:____________________________________________
Its:______________________________________
Signed in the presence of:
_______________________________________________
9
STATE OF NEVADA )
) ss.
County of Xxxxx )
The foregoing instrument was acknowledged before me this ____ day of
____________ 2002, by ______________ as _______________ of MEGO FINANCIAL CORP.,
a New York corporation, on behalf of the corporation.
Notary Public
My Commission Expires:
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged before me this ___ day of _______________
2002, by ______________________, as _______________ of FINOVA CAPITAL
CORPORATION, a Delaware corporation, on behalf of the corporation.
___________________________________
Notary
My Commission expires:
10
