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10.154
AMENDMENT NO. 4 TO SECOND AMENDED AND
RESTATED AND CONSOLIDATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED AND
CONSOLIDATED LOAN AND SECURITY AGREEMENT (the "Amendment") is entered into as of
the _____th day of November, 1998, by and between FINOVA CAPITAL CORPORATION, a
Delaware corporation ("Lender"), and PREFERRED EQUITIES CORPORATION, a Nevada
corporation ("Borrower").
R E C I T A L S
a. Lender and Borrower entered into a Second Amended and Restated
and Consolidated Loan and Security Agreement dated as of May 15, 1997 (the "Loan
Agreement") that evidences a loan from Lender to Borrower.
b. The 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") and by the
Letter Agreement [Headquarters Readvance] dated September 29, 1998 (the "Third
Amendment").
c. Borrower has requested and Lender has agreed (i) to make a
single Advance to Borrower in the amount of One Million One Hundred Thousand
Dollars ($1,100,000) 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) 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) which shall constitute a readvance of a portion of the
principal amount that has been repaid under the Aloha Bay Note, and (iv) to
modify certain eligibility criteria and other covenants, all on the terms and
subject to the conditions contained in this Amendment, which conditions shall
include the pledging by Borrower to Lender of certain real property which is
identified below as the Calvada Sports Complex.
NOW, THEREFORE, in consideration of these recitals, the covenants
contained in this Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which consideration is hereby acknowledged, Lender
and Borrower agree as follows:
1. LOAN AGREEMENT. Unless otherwise defined herein, all
capitalized terms used herein shall have the same meaning set forth in the Loan
Agreement. Provided the conditions precedent described in Paragraph 5 of this
Amendment are met to the
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satisfaction of Lender, which satisfaction will be evidenced by Lender's
execution of this Amendment, the Loan Agreement is hereby further modified as
follows:
1.1 The Loan Agreement is hereby amended by adding to
Article I the following definitions:
"Calvada Sports Complex": shall mean that approximately
twenty two (22) acre parcel of real property located in Xxx, County,
Nevada and more fully described on the attached Exhibit 1.
"First Amendment": shall have the meaning set forth in the
Fourth Amendment.
"Fourth Amendment": shall mean the Amendment No. 4 to
Amended and Restated and Consolidated Loan and Security Agreement.
"Second Amendment": shall have the meaning set forth in
the Fourth Amendment.
"Third Amendment": shall have the meaning set forth in the
Fourth Amendment.
1.2 The definition of the following terms in Article I of
the Loan Agreement, including, to the extent applicable, the First
Amendment, Second Amendment and Third Amendment are hereby amended and
restated in their entirety to read as follows:
"Aloha Bay Maturity Date": shall mean the date which
occurs twenty-four (24) months following the date that Lender makes the
Advance under the Fourth Amendment.
"Aloha Bay Note": shall mean that certain First Amended
and Restated and Consolidated Promissory Note [Aloha Bay Phase I] of
Borrower dated as of November 6, 1998 in the original principal amount
of One Million Seven Thousand One Hundred Dollars ($1,007,100)
evidencing the Advances of the Loan made by Lender to Borrower with
respect to Aloha Bay, together with any modifications, amendments,
restatements or supplements from time to time made thereto, whether now
or hereafter existing.
"Aloha Bay Release Fees": shall mean Two Thousand Six
Hundred Twenty Five Dollars ($2,625) per Unit.
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"Borrowing Base": shall mean, as of the date of any
determination thereof, an amount equal to the lesser of (a) ninety
percent (90%) of the unpaid principal balance payable under the Eligible
Receivables, or (b) ninety percent (90%) of the then present value
assigned to the unmatured installments of principal and interest payable
under the Eligible Receivables, discounted at Lender's prevailing
discount rate calculated as set forth in PARAGRAPH 7.6(i)(C); provided,
however, that the maximum Borrowing Base allocable to Eligible
Receivables arising from the sale of Units in Project (Reno) shall not
in any event exceed Four Million Dollars ($4,000,000); and provided,
further, that the maximum Borrowing Base allocable to Eligible
Receivables arising from the sale of Lots shall not in any event exceed
Thirty Five Million Dollars ($35,000,000) in the aggregate; and
provided, further, that the maximum Borrowing Base allocable to Eligible
Receivables arising from Unsolidified Lot Sales shall be equal to sixty
five percent (65%) of the unpaid principal balance of all Eligible
Receivables consisting of Receivables Collateral constituting
Unsolidified Lot Sales, not to exceed at any time, however, the lesser
of (i) an amount equal to ten percent (10%) of the total unpaid
principal balance of all Eligible Receivables consisting of Receivables
Collateral which are not constituted of Unsolidified Lot Sales, or (ii)
Three Million Five Hundred Thousand Dollars ($3,500,000).
"Xxx Building Addition Maturity Date": shall mean the date
which occurs twenty four (24) months following the date that Lender
makes the Advance under the Fourth Amendment.
"Xxx Building Addition Note": shall mean that certain
First Amended and Restated Promissory Note [Xxx Building Addition] of
Borrower dated November 6, 1998, executed and delivered to Lender in the
amount of Two Million One Hundred Twenty-Five Thousand Two Hundred
Twenty and 80/100 Dollars ($2,125,220.80), evidencing Advances of the
Loan made under the Mortgage Loan Facility with respect to the Xxx
Building Addition, together with any modifications, amendments,
restatements or supplements from time to time made thereto, whether now
or hereafter existing.
"Xxx Building Addition Release Fee": shall mean Three
Thousand Three Hundred Dollars ($3,300) per Unit.
"Xxxxxxx Building Addition Maturity Date": shall mean the
date which occurs twenty-four (24) months following the date that Lender
makes the Advance under the Fourth Amendment.
"Xxxxxxx Building Addition Note": shall mean that certain
First Amended and Restated Promissory Note [Xxxxxxx Building Addition]
of Borrower dated as of November 6, 1998, executed and delivered to
Lender in the amount of
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Two Million Three Hundred Ninety-Seven Thousand Five Hundred Dollars
($2,397,500), evidencing the Advances of the Loan made under the
Mortgage Loan Facility made with respect to the Xxxxxxx Building
Addition, together with any modifications, amendments, restatements or
supplements from time to time made thereto, whether now or hereafter
existing.
"Xxxxxxx Building Addition Release Fees": shall mean Three
Thousand Six Hundred Dollars ($3,600) per Unit.
1.3 The definition of Documents shall be amended to
include each of the Notes, now existing and hereafter created, and each
now existing and hereafter created Mortgage securing the repayment of
each of the Notes.
1.4 The provisions of Section 3.9 of the Loan Agreement,
dealing with the payment of the incentive fee with respect to the Aloha
Bay Note, shall be amended to provide that at such time as Borrower has
repaid the Aloha Bay Note in full the incentive fee with respect to
Aloha Bay shall be payable in increments of Two Thousand Six Hundred
Twenty Five Dollars ($2,625) per Unit until Borrower has paid to Lender
a total incentive fee as to Aloha Bay of Thirty Two Thousand Six Hundred
Forty Dollars ($32,640). The provisions of Section 3.9 of the Loan
Agreement shall be further modified to provide that the definition of
the Aloha Bay Release Fee shall be as set forth in Article I of the Loan
Agreement as amended by this Amendment.
1.5 The provisions of Section 3.14 of the Loan Agreement,
dealing with the payment of the incentive fee with respect to the Xxx
Building Addition Note, shall be amended to provide that at such time as
Borrower has repaid the Xxx Building Addition Note in full the incentive
fee with respect to Xxx Building Addition shall be payable in increments
of Three Thousand Three Hundred Dollars ($3,300) per Unit until Borrower
has paid to Lender a total incentive fee as to Xxx Building Addition of
Twenty Four Thousand Four Hundred Eighty Dollars ($24,480). The
provisions of Section 3.14 of the Loan Agreement shall be further
modified to provide that the definition of the Xxx Building Addition
Release Fee shall be as set forth in Article I of the Loan Agreement as
amended by this Amendment.
1.6 The provisions of Section 3.15 of the Loan Agreement,
dealing with the payment of the incentive fee with respect to the
Xxxxxxx Building Addition Note shall be amended to provide that at such
time as Borrower has repaid the Xxxxxxx Building Addition Note in full
the incentive fee with respect to Xxxxxxx Building Addition shall be
payable in increments of Three Thousand Six Hundred Dollars ($3,600) per
Unit until Borrower has paid to Lender a total incentive fee as to
Xxxxxxx Building Addition of Twenty Two Thousand Four Hundred Forty
Dollars ($22,440). The provisions of Section 3.15 of the Loan Agreement
shall be further
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modified to provide that the definition of the Xxxxxxx Building Addition
Release Fee shall be as set forth in Article I of the Loan Agreement as
amended by this Amendment.
1.7 Exhibit "I-C" of the Loan Agreement, entitled
"Conditions of Eligible Receivables" shall be amended by adding a
subparagraph (m) reading as follows:
"(m) As an alternative to the eligibility criteria
set forth in subparagraphs (c) and (d) above, Borrower has
received from the Purchaser, with respect to any Unit which is
the subject of the Eligible Receivable, aggregate cash payments,
consisting of the down payment and all principal payments, of not
less than fifty percent (50%) of the total sales price, no part
of which has been advanced or loaned to such Purchaser by
Borrower, directly or indirectly; the Instrument or Contract
provides for consecutive monthly installments of principal and
interest in United States funds having a remaining term not
exceeding thirty-six (36) months; and the Instrument or Contract
provides for the accrual of interest on the unpaid balance at a
rate of not less than five percent (5%) per annum; provided,
however, that in no event shall the unpaid principal balance of
Eligible Receivables against which an Advance is made pursuant to
this paragraph exceed Three Million Dollars ($3,000,000)."
1.8 The provisions of paragraph 2.1 of the Loan Agreement
shall be amended and restated in their entirety as follows:
"The Loan. Subject to the terms and conditions of
this Agreement, Lender hereby agrees to make a Loan to Borrower
in the amounts and for the purposes hereinafter described. The
Loan shall be constituted of the Receivables Loan, the Mortgage
Loan Facility, a One Million Seven Thousand One Hundred Dollars
($1,007,100) nonrevolving mortgage loan made with respect to
Aloha Bay (the "Aloha Bay Loan"), a Six Million Five Hundred
Eighty Three Thousand Four Hundred Six and 43/100 Dollar
($6,583,406.43) nonrevolving mortgage loan previously made with
respect to the Headquarters Building and the FCFC Property (the
"Office Loan") and a One Million One Hundred Seventy Three
Thousand Seven Hundred Fifty Thousand Dollar ($1,173,750.00)
nonrevolving mortgage loan previously made with respect to the
Biloxi Property."
1.9 The provisions of Section 7.15 of the Loan Agreement
shall be amended by deleting from the text thereof the number $2,900.00
in each place where such number appears and substituting in lieu thereof
the number "$2,625.00".
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1.10 The provisions of Section 7.16 of the Loan Agreement
shall be amended by deleting from the text thereof the number $1,650.00
in each place where such number appears and substituting in lieu thereof
the number "$3,300.00".
1.11 The provisions of Section 7.17 of the Loan Agreement
shall be amended by deleting from the text thereof the number $2,500.00
in each place where such number appears and substituting in lieu thereof
the number "$3,600.00".
1.12 Sections 8.23(b) and 8.23(d) of the Loan Agreement
shall be amended and restated in their entirety and a new Section
8.23(e) shall be added, as follows:
(b) Consolidated Debt to Consolidated Tangible Net
Worth. Commencing with the fiscal quarter ending August 31, 1999,
the ratio of consolidated total liabilities of Borrower and its
Subsidiaries to the Consolidated Tangible Net Worth of Borrower
and its Subsidiaries shall not, at any time, be greater than 4:1.
(d) Sales, General and Administrative Expenses to
Net Sales. On the final day of each fiscal quarter of Borrower,
commencing with the fiscal quarter ending November 30, 1998 the
sum of (i) the total of Borrower's costs and expenses for
commissions and selling relating to retail lot sales and
time-share sales (exclusive of any fees payable by Borrower to
Hospitality Franchise Systems, Inc.) and (ii) the total of
Borrower's general and administrative expenses, (the costs and
expenses described in clauses (i) and (ii) hereinafter the "SGA
Expenses") shall not exceed the amount obtained when the total of
Borrower's processed sales of retail lots and time-share
interests for the same period (each net of cancellations of such
sales) ("Net Sales") is multiplied by the percentage set forth
below; provided, however, that a breach of this covenant shall
not be an Event of Default, but in the event that there are two
(2) consecutive occurrences of a breach of this covenant or in
the event a breach of this covenant continues without cure for a
period in excess of sixty (60) days after the end of any test
quarter, Lender shall have no further obligation to make any
Advances hereunder, including, without limitation, any
Receivables Advances or any Advances under the Mortgage Loan
Facility until such breach is cured. Until August 31, 1999, the
foregoing covenant shall be tested quarterly based upon
Borrower's total cumulative SGA Expenses and total cumulative Net
Sales from September 1, 1998 through the end of the relevant
quarter. Commencing on November 30, 1999, the foregoing covenant
shall be tested quarterly based upon Borrower's total aggregate
SGA Expenses and Net Sales for the immediately preceding four (4)
fiscal quarters.
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Test Date Percentage
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November 30, 1998 65%
February 28, 1999 70%
May 31, 1999 67%
August 31, 1999 and thereafter 65%
Notwithstanding the contrary provisions set forth in the
introductory portions of Section 8.23, the compliance of Borrower
with the financial covenants set forth in this Section 8.23(d)
shall be confirmed by Borrower's delivery to Lender of a
certification in a form acceptable to Lender which certification
shall be signed by a duly-authorized officer of Borrower and
shall be delivered to Lender within sixty (60) days after the
expiration of the first, second and third fiscal quarters of
Borrower and within one hundred twenty (120) days after the
expiration of each fourth quarter.
(e) Sales Volume. On the final day of each fiscal
quarter of Borrower, commencing with the fiscal quarter ending
November 30, 1998 and ending with the fiscal quarter ending
August 31, 1999, Borrower's Net Sales as defined above shall
equal or exceed the amounts set forth below; provided, however,
that a breach of this covenant shall not be an Event of Default,
but in the event that there are two (2) consecutive occurrences
of a breach of this covenant or in the event a breach of this
covenant continues without cure for a period in excess of sixty
(60) days after the end of any test quarter, Lender shall have no
further obligation to make any Advances hereunder, including,
without limitation, any Receivables Advances or any Advances
under the Mortgage Loan Facility until such breach is cured. The
foregoing covenant shall be tested quarterly based upon
Borrower's total cumulative Net Sales from September 1, 1998
through the end of the relevant quarter.
Volume
Test Date Amount of Sales
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November 30, 1998 $17,507,168
February 28, 1999 $16,484,761
May 31, 1999 $21,565,217
August 31, 1999 $25,459,567
Notwithstanding the contrary provisions set forth in the
introductory portions of Section 8.23, the compliance of Borrower
with the financial covenants set forth in this Section 8.23(e)
shall be confirmed by Borrower's delivery to Lender of a
certification in a form acceptable to Lender which certification
shall be signed by a duly-authorized officer of Borrower and
shall be delivered to Lender within sixty (60) days after the
expiration of the first, second and third fiscal quarters of
Borrower and within one hundred twenty (120) days after the
expiration of the fourth quarter.
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2. READVANCES.
2.1 Subject to the satisfaction of the terms and conditions
set forth in this Amendment, Lender agrees to (i) to make a single
Advance (the "Xxxxxxx Building Addition Readvance") to Borrower in the
amount of One Million One Hundred Thousand Dollars ($1,100,000) 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 (the "Xxx Building Addition Readvance") to Borrower in
the amount of Eight Hundred Thousand Dollars ($800,000) which shall
constitute a readvance of a portion of the principal amount that has
been repaid under the Xxx Building Addition Note, and (iii) to make a
single Advance (the "Aloha Bay Readvance") to Borrower in the amount of
Six Hundred Thousand Dollars ($600,000) which shall constitute a
readvance of a portion of the principal amount that has been repaid
under the Aloha Bay Note.
2.2 The Aloha Bay Readvance, together with the present
outstanding principal balance of the Aloha Bay Note, shall be evidenced
by a First Amended and Restated Promissory Note [Aloha Bay] in the
amount of One Million Seven Thousand One Hundred Dollars ($1,007,100)
constituting the sum (i) of the Aloha Bay Readvance (i.e., $600,000) and
(ii) the unpaid balance of the Aloha Bay Note as of the date hereof
(i.e., $407,100). Borrower represents and warrants to Lender that the
unpaid principal balance of the Aloha Bay Note as of the date hereof is
Four Hundred Seven Thousand One Hundred Dollars ($407,100). The Aloha
Bay Readvance shall be secured pursuant to, among other things, the
Aloha Bay Mortgage in the same priority as previous advances under the
Aloha Bay Note, as well as the Loan Agreement, and as more fully set
forth in Section 3 below.
2.3 The Xxx Building Addition Readvance, together with the
present outstanding principal balance of the Xxx Building Addition Note,
shall be evidenced by a First Amended and Restated Promissory Note [Xxx
Building Addition] in the amount of Two Million One Hundred Twenty-Five
Thousand Two Hundred Twenty and 80/100 Dollars ($2,125,220.80)
constituting the sum of (i) the Xxx Building Addition Readvance (i.e.
$800,000) and (ii) the unpaid principal balance of the Xxx Building
Addition Note as of the date hereof (i.e. $1,325,220.80). Borrower
represents and warrants to Lender that the unpaid principal balance of
the Xxx Building Addition Note as of the date hereof is One Million
Three Hundred Twenty-Five Thousand Two Hundred Twenty and 80/100 Dollars
($1,325,220.80). The Xxx Building Addition Readvance shall be secured
pursuant to, among other things, the Xxx Building Addition Deed of Trust
in the same priority as previous advances under the Xxx Building
Addition Note, as well as the Loan Agreement, and as more fully set
forth in Section 3 below.
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2.4 The Xxxxxxx Building Addition Readvance, together with the
present outstanding principal balance of the Xxxxxxx Building Addition
Note, shall be evidenced by a First Amended and Restated Promissory Note
[Xxxxxxx Building Addition] in the amount of Two Million Three Hundred
Ninety-Seven Thousand Five Hundred Dollars ($2,397,500) constituting the
sum of (i) the Xxxxxxx Building Addition Readvance (i.e., $1,100,000)
and (ii) the unpaid principal balance of the Xxxxxxx Building Addition
Note as of the date hereof (i.e., $1,297,500). Borrower represents and
warrants to Lender that the unpaid principal balance of the Xxxxxxx
Building Addition Note as of the date hereof is One Million Two Hundred
Ninety-Seven Thousand Five Hundred Dollars ($1,297,500). The Xxxxxxx
Building Addition Readvance shall be secured pursuant to, among other
things, the Xxxxxxx Building Addition Deed of Trust in the same priority
as previous advances under the Xxxxxxx Building Addition Note, as well
as the Loan Agreement, and as more fully set forth in Section 3 below.
3. SECURITY. Without limitation, as provided in paragraphs 3.1(a)
and (b) of the Loan Agreement and the Mortgages securing the Notes now existing
or hereafter arising, the payment and Performance of Borrower's Obligations
under or as evidenced by this Amendment and by the Aloha Bay Note, Xxx Building
Addition Note and Xxxxxxx Building Addition Note (as the foregoing notes have
been redefined by this Amendment) shall be and shall continue to be secured by
the liens and Security Interests granted to Lender pursuant to the Loan
Agreement, as amended and supplemented by this Amendment, and pursuant to such
Mortgages, subject however to the release provisions set forth in the Loan
Documents.
4. MARKETING AND DEBT COVENANT. Lender waives compliance by
Borrower with the covenant contained in Section 8.23(b) for the period of time
commencing January 1, 1998 through the date of this Amendment and compliance by
Borrower with the covenant contained in Section 8.23(d) for the period of time
commencing January 1, 1998 through August 31, 1998. However the foregoing waiver
shall not constitute a waiver by Lender of any other Events of Default or any
acts or events which with notice, passage of time or both would constitute
Events of Default under the Documents.
5. CONDITIONS PRECEDENT. Lender's obligations under this
Amendment are subject to the satisfaction of the following conditions precedent:
5.1 Borrower shall have delivered to Lender the following
executed documents, all in form satisfactory to Lender:
(a) This Amendment; and
(b) Appropriate amendments to each of the Aloha Bay Note,
Xxx Building Addition Note, Xxxxxxx Building Addition Note, Xxxxx
Xxx
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Xxxxxxxx, Xxx Building Addition Deed of Trust and Xxxxxxx
Building Addition Deed of Trust to further effectuate the
agreement set forth in this Amendment.
5.2 Lender shall have obtained an irrevocable commitment
from its title insurer to issue to Lender title insurance endorsements
acceptable to Lender with respect to each of the Aloha Bay Mortgage, the
Xxx Building Addition Deed of Trust and the Xxxxxxx Building Addition
Deed of Trust to account for the making of the Aloha Bay Readvance, the
Xxx Building Addition Readvance, and the Xxxxxxx Building Addition
Readvance, all at the sole cost and expense of Borrower.
5.3 Borrower has obtained and delivered to Lender an
irrevocable commitment from Lender's title insurer with respect to the
Biloxi Deed of Trust to account for the making of the Headquarters
Readvance as more fully described in the Third Amendment, all at the
sole cost and expense of Borrower.
5.4 Lender shall have received an approved updated credit
reference on Borrower from each of Xxxxxx Financial, Inc., Textron
Financial Corp., Marine Midland Bank and First Chicago Bank.
5.5 Lender shall have received and approved the current
accounts payable aging schedule of Borrower.
5.6 Borrower shall have satisfied the following conditions
contained in Exhibit 5.2.2 of the Loan Agreement: 1(b) through (i), 3,
4, 5, 6, 7, 8, 9, 10, 11 and 16. With respect to this Amendment only,
(i) all references in the foregoing conditions to the term "Project"
shall mean the Calvada Sports Complex; (ii) the reference to Project
Incentive Fee shall be deleted; (iii) the reference to Project Note
shall mean the Aloha Bay Note, the Xxx Building Addition Note and the
Xxxxxxx Building Addition Note (as the foregoing notes have been herein
redefined), in the aggregate; and (iv) the zoning evidence as
contemplated in condition 16 shall support the present use of the
Calvada Sports Complex.
5.7 Borrower has paid the Lender the Readvance Fee as
defined below.
5.8 There shall have occurred no material adverse change
in any real property or in the business or financial condition of the
Borrower and Guarantor since the date of the last financial statement
submitted to Lender.
6. INCORPORATION OF OTHER PROVISIONS OF LOAN AGREEMENT. For all
purposes under the Loan Agreement, the Aloha Bay Readvance, the Xxx Building
Addition Readvance and the Xxxxxxx Building Addition Readvance shall each be
deemed a
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"transaction made pursuant to this Agreement," as contemplated in Section 8.1 of
the Loan Agreement, except that for purposes of the representations, covenants
and warranties under Article VIII thereof, the current status of all litigation
matters affecting the Borrower and Guarantor is as set forth on the attached
Exhibit 2 and the current financial condition (including, without limitation,
compliance with financial covenants) of the Borrower and Guarantor is reflected
on the most recent financial statements delivered by Borrower and Guarantor to
Lender prior to the date hereof.
7. READVANCE FEE. In consideration of Lender's covenants,
agreements and promises under this Amendment, Borrower shall pay to Lender at
the time of the Advance made pursuant to this Amendment a fee in the amount of
Twelve Thousand Five Hundred Dollars ($12,500.00) (the "Readvance Fee") which
may be withheld from the proceeds of the Advance made pursuant to this
Amendment. Lender acknowledges the receipt of One Thousand Seven Hundred
Eighty-Six Dollars ($1,786) of the Readvance Fee.
8. ENTIRE AGREEMENT. This Amendment constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof.
9. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, and any number of which having been signed by all the parties
hereto shall be taken as one original.
10. NO NOVATION. Except as 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 to be
construed as a release, waiver or modification of any of the terms, conditions,
representations, warranties, covenants, rights or remedies set forth in the
Documents, except as expressly stated herein. To the extent practicable, any
provisions of this Amendment which conflict with any provisions of the Documents
shall be construed to supplement such provisions of the Documents, provided
that, in the event of irreconcilable conflict, the provisions of this Amendment,
construed as narrowly as practicable, shall control.
11. COMMISSIONS. Lender shall not be obligated to pay any loan
commission and/or brokerage fee in connection with the Advances of the Loan made
pursuant to this Amendment. Borrower shall pay any and all such commissions and
fees, if any, and hereby agrees to indemnify, defend and hold harmless Lender
from any claim for any such commissions or fees. Lender represents and warrants
to Borrower that Lender has no knowledge of broker involvement in the
transactions contemplated by this Amendment.
12. INDEBTEDNESS ACKNOWLEDGED. Borrower acknowledges that the
indebtedness evidenced by the Documents is just and owing and agrees to pay the
indebtedness in accordance with the terms of the Documents. Borrower further
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acknowledges and represents that no event has occurred and no condition
presently exists that would constitute a default or event of default by Borrower
under the Loan Agreement, as amended, or any of the other Documents, with or
without notice or lapse of time, other than as to those matters waived pursuant
to Paragraph 4 hereof.
13. VALIDITY OF DOCUMENTS. Borrower hereby ratifies, reaffirms,
acknowledges and agrees that the Loan Agreement, as amended, and the other
Documents represent valid, enforceable and collectable obligations of Borrower,
and that Borrower presently has no existing claims, defenses (personal or
otherwise) or rights of setoff whatsoever with respect to the Obligations of
Borrower under the Loan Agreement or any of the other Documents. Borrower
furthermore agrees that it has 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 from Lender.
14. OTHER WRITINGS. Lender and Borrower will execute such other
writings as may be necessary to confirm or carry out the intentions of Lender
and Borrower evidenced by this Amendment.
15. EFFECTIVENESS OF AMENDMENT. This Amendment shall not be
effective until the same is executed and accepted by Lender in the State of
Arizona.
IN WITNESS WHEREOF, this instrument is executed as of the day and
year first above written.
PREFERRED EQUITIES CORPORATION, FINOVA CAPITAL CORPORATION,
a Nevada corporation a Delaware corporation
By: _____________________________ By: ____________________________
Title ___________________________ Title: _________________________
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State of Arizona )
)
County of Maricopa )
This instrument was acknowledged before me on ___________, 1998
by ______________ as ______________________ of PREFERRED EQUITIES CORPORATION, a
Nevada corporation, on behalf of the corporation.
___________________________________
Notary
(My commission expires:) ___________
State of Arizona )
)
County of Maricopa )
This instrument was acknowledged before me on ___________, 1998
by ________________________ as ______________________ of FINOVA CAPITAL
CORPORATION, a Delaware corporation, on behalf of the corporation.
___________________________________
Notary
(My commission expires:) ___________
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