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EXHIBIT 10.95
AMENDMENT NO. 14 TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 14 TO AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (the "Fourteenth Amendment") is entered into as of the _____
day of __________, 1996, 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. Greyhound Real Estate Finance Company, an Arizona
corporation ("GREFCO") and Borrower entered into an Amended and Restated Loan
and Security Agreement dated as of May 10, 1989 (the "Restated Loan Agreement")
that evidences a loan from GREFCO to Borrower (the "Modified Loan") that is
secured by, among other things, Receivables Collateral.
B. The Modified Loan and Restated Loan Agreement was
amended by an Amendment Number One to Amended and Restated Loan and Security
Agreement dated June 14, 1989 (the "First Amendment"), by an Amendment No. 2 to
Amended and Restated Loan and Security Agreement dated April 16, 1990 (the
"Second Amendment"), by an Amendment No. 3 to Amended and Restated Loan and
Security Agreement dated May 31, 1991 (the "Third Amendment"), by an Amendment
No. 4 to Amended and Restated Loan and Security Agreement dated January 13,
1992 (the "Fourth Amendment"), by an Amendment No. 5 to Amended and Restated
Loan and Security Agreement dated February 23, 1993 (the "Fifth Amendment"); by
an Amendment No. 6 to Amended and Restated Loan and Security Agreement dated
June 28, 1993 (the "Sixth Amendment"), by an Amendment No. 7 to Amended and
Restated Loan and Security Agreement dated January 24, 1994 (the "Seventh
Amendment"), by an Amendment No. 8 to Amended and Restated Loan and Security
Agreement dated as of April 15, 1994 (the "Eighth Amendment"), by an Amendment
No. 9 to Amended and Restated Loan and Security Agreement dated as of August
31, 1994 (the "Ninth Amendment"), by an Amendment No. 10 to Amended and
Restated Loan and Security Agreement dated as of January 26, 1995 (the "Tenth
Amendment"), by an Amendment No. 11 to Amended and Restated Loan and Security
Agreement dated as of September 22, 1995 (the "Eleventh Amendment"), by an
Amendment No. 12 to Amended and Restated Loan and Security Agreement dated as
of September 29, 1995 (the "Twelfth Amendment"), and by an Amendment No. 13 to
Amended and Restated Loan and Security Agreement dated as of December 13, 1995
(the "Thirteenth Amendment"). The Restated Loan Agreement, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth
Amendment, the Ninth Amendment, the Tenth Amendment, the Eleventh Amendment,
the Twelfth Amendment, the Thirteenth Amendment, and this Fourteenth Amendment
and all other documents evidencing or executed in connection with the Loan are
referred to hereinafter as the "Loan Documents." The Restated Loan Agreement,
as amended by the First Amendment, Second Amendment, Third Amendment, Fourth
Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment, Eighth
Amendment, Ninth Amendment, Tenth Amendment, Eleventh Amendment, Twelfth
Amendment, and Thirteenth Amendment, is referred to hereinafter as the "Loan
Agreement." The Loan contemplated by the Loan Agreement, as amended by this
Fourteenth Amendment, is referred to hereinafter as the "Loan." All capitalized
terms used in this Fourteenth Amendment will have the meanings assigned to such
terms in the Loan
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Agreement unless those terms are otherwise defined herein.
C. GREFCO was a wholly-owned subsidiary of Greyhound
Financial Corporation ("GFC"). Pursuant to a plan of liquidation, GREFCO was
liquidated into GFC. Further, pursuant to such plan of liquidation, GREFCO
assigned the Note and all of GREFCO's rights under the Loan Agreement and other
Documents to GFC. Effective as of February 1, 1995, GFC changed its name to
FINOVA Capital Corporation.
D. Borrower has requested and Lender has agreed to fund
(pursuant to the terms and conditions of this Fourteenth Amendment), as part of
the Loan, an Advance against the Maximum Loan Amount, to refinance a portion of
the loan made by Lender with respect to the Headquarters as evidenced by the
2.5 MM Note and for purposes of providing Borrower with funds for the
acquisition of and construction of tenant improvements on an existing office
building located at 0000 Xxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxx, commonly known as
the First Commerce Financial Center (the "FCFC Property").
NOW, THEREFORE, in consideration of these recitals, the
covenants contained in this Fourteenth 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. Provided the conditions precedent
described in Paragraph 5 of this Fourteenth Amendment are met to the
satisfaction of Lender, which satisfaction will be evidenced by Lender's
execution of this Fourteenth Amendment unless otherwise provided herein, 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:
"FCFC Advance": shall have the meaning set forth in
Paragraph 2 of the Fourteenth Amendment.
"FCFC Facility": shall have the meaning set forth in
Paragraph 2 of the Fourteenth Amendment.
"FCFC Advance Loan Fee": shall mean the loan fee
payable by Borrower to Lender equal to one percent (1%) of the amount
of the FCFC Advance, which shall be due and payable on the date the
FCFC Advance is funded.
"FCFC Deed of Trust": shall have the meaning set
forth in Paragraph 4 of the Fourteenth Amendment.
"FCFC Property": shall have the meaning set forth in
the Recitals of the Fourteenth Amendment. The FCFC Property is
legally described in EXHIBIT "A" attached hereto and incorporated
herein by this reference.
"Fourteenth Amendment": shall mean this Amendment
No. 14 to Amended and Restated Loan and Security Agreement.
"Office Note": shall mean the Second Amended and
Restated Promissory Note [Headquarters and FCFC Property] further
described in Paragraph 3 of
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the Fourteenth 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, Third Amendment, Fourth Amendment, Fifth
Amendment, Sixth Amendment, Seventh Amendment, Eighth Amendment, Ninth
Amendment, Tenth Amendment, Eleventh Amendment, Twelfth Amendment, and
Thirteenth Amendment, are hereby amended and restated in their entirety to read
as follows:
"Documents": shall mean the Note, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh
Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth
Amendment, the Eleventh Amendment, the Twelfth Amendment, the
Thirteenth Amendment, the Fourteenth Amendment, the Office Note, the
Suites Phase II Note, the Xxx Building One Note, the Xxx Building Two
Note, the Aloha Bay Phase I Note, the Aloha Bay Phase II Note, the
Xxxxxxx Building Addition Note, the Xxx Building Addition Note, the
Towers Note, the Guarantee, the Deed of Trust, the Headquarters Deed
of Trust, the Xxx Building One Deed of Trust, the Xxx Building Two
Deed of Trust, the Aloha Bay Phase I Mortgage, the Aloha Bay Phase II
Mortgage, the Xxxxxxx Building Addition Deed of Trust, the Xxx
Building Addition Deed of Trust, the FCFC Deed of Trust, the
Assignments, the Contracts, the Instruments, the Agency Agreement, the
Oversight Agreement, this Agreement, and all other documents and
instruments executed in connection with the Loan, together with any
and all renewals, extensions, amendments, restatements or replacements
thereof, whether now or hereafter existing.
"2.5 MM Note": shall mean the 2.5 MM Note, as
modified and amended pursuant to the Amended and Restated 2.5 MM Note
described in the Twelfth Amendment, an as further modified by the
Office Note described in Paragraph 3 of the Fourteenth Amendment.
"Headquarters Deed of Trust": shall mean the
Headquarters Deed of Trust, as modified and amended pursuant to that
First Modification of Deed of Trust, Assignment of Rents and Proceeds
and Security Agreement [Headquarters] dated as of August 31, 1994 and
recorded in Book 941021, Instrument No. 00641, Official Records of
Xxxxx County, Nevada, as further modified and amended by that Second
Modification to Deed of Trust, Assignment of Rents and Proceeds and
Security Agreement [Headquarters] dated as of September 29, 1995 and
recorded in Book 950929, Instrument No. 03234, Official Records of
Xxxxx County, Nevada, and as further modified and amended pursuant to
that Third Modification of Deed of Trust, Assignment of Rents and
Proceeds and Security Agreement and Notice of Substitution of Trustee
[Headquarters] described in Paragraph 4 of the Fourteenth Amendment.
2. FCFC ADVANCE. As an Advance against the Maximum Loan
Amount, Lender shall make a loan (the "FCFC Advance") to Borrower in an amount
equal to $4,500,000, which, together with the outstanding principal balance of
the 2.5 MM Note as of the date of the Fourteenth Amendment, shall equal the
FCFC Facility. The FCFC Facility shall in no event exceed $7,000,000. The
following terms and conditions shall apply to the FCFC Advance:
2.1 At such time as all conditions with respect to the FCFC Advance
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in this Fourteenth Amendment have been satisfied in Lender's discretion, Lender
shall disburse the FCFC Advance to Borrower in a single Advance on a date
mutually agreeable to the parties hereto. Lender shall have no obligation to
disburse any portion of the FCFC Advance after June 7, 1996.
2.2 Borrower shall use the proceeds of the FCFC
Advance for the acquisition of and construction of tenant and other building
improvements in the FCFC Property.
2.3 Borrower has paid to Lender a deposit of
$5,000 to be credited against the FCFC Advance Loan Fee. Borrower shall pay to
Lender the remainder of the FCFC Advance Loan Fee simultaneously with the FCFC
Advance.
2.4 The FCFC Advance shall not be included in the
Mortgage Loan Facility or be deemed to be an Advance under the Mortgage Loan
Facility
3. OFFICE NOTE.
3.1 The outstanding principal balance of the 2.5
MM Note as of the date of the Fourteenth Amendment, together with the FCFC
Advance shall be evidenced by the Office Note, which shall replace the 2.5 MM
Note, shall be in the form attached hereto as EXHIBIT "B", and shall be
executed and delivered to Lender simultaneously with the execution of this
Fourteenth Amendment. Lender and Borrower hereby agree that, notwithstanding
any provision to the contrary in the Loan Agreement, the terms and conditions
of the Office Note and this Paragraph 3 shall apply with respect to repayment
of the Office Note. To the extent that Borrower's indebtedness to Lender
arising from the Office Note is evidenced by both the Note (as distinguished
from the Office Note) and the Office Note, receipts by Lender in payment or
satisfaction of such indebtedness shall be credited against sums due under both
the Note and the Office Note and/or any judgment entered thereon. Within
thirty (30) days after the FCFC Advance is made, Lender shall return the
original Amended and Restated Promissory Note dated as of September 29, 1995 to
Borrower, marked "Superceded by Promissory Note dated as of June 5, 1996."
3.2 Notwithstanding the provisions of Paragraph
7.3.1 of the Loan Agreement, Borrower shall have no right to prepay the Office
Note, other than as provided in the Office Note.
3.3 Notwithstanding anything herein to the
contrary, if not sooner paid, the entire outstanding balance of the Office
Note, together with all accrued and unpaid interest and all other sums due and
owing therein, shall be due and payable in full on the seventh (7th)
anniversary of the date of the FCFC Advance.
3.4 Wherever the terms "2.5 MM Note" and "Amended
and Restated 2.5 MM Note" are used in the Documents, such terms shall
hereinafter be deemed to refer to the Office Note.
4. SECURITY. As provided in Paragraphs 3.1(a) and (b)
of the Loan Agreement, the payment and Performance of the Office Note shall be
and shall continue to be secured by the Security Interests granted to Lender
pursuant to the Loan Agreement, as amended by this Fourteenth Amendment.
Furthermore, pursuant to a separate Deed of Trust, Assignment of Rents and
Proceeds and Security Agreement with respect to the FCFC Property,
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in a form acceptable to Lender (referred to herein as the "FCFC Deed of
Trust"), the payment and Performance of the Office Note and all other
obligations owed to Lender under the Documents shall be secured by a first
priority lien on and security interest in the FCFC Property; all buildings and
other improvements now or hereafter erected thereon; all fixtures, equipment
and other personal property now or hereafter located on or attached or affixed
in any manner to the FCFC Property; all leases, income, rents, royalties,
revenues, issues, profits or proceeds from the FCFC Property; and other items
of collateral in connection therewith, all as more fully set forth in the FCFC
Deed of Trust. As additional security, the Headquarters Deed of Trust, as
further modified by the Third Modification of Deed of Trust, Assignment of
Rents and Proceeds and Security Agreement and Notice of Substitution of Trustee
[Headquarters] to be executed and delivered by Borrower at Closing, shall
secure repayment of the Office Note and all other Obligations of Borrower to
Lender under the Documents.
5. CONDITIONS PRECEDENT. Lender's obligation to make
the FCFC Advance is subject to the following conditions precedent, all of which
must be satisfied at or prior to the funding of the FCFC Advance.
5.1 Borrower shall have delivered to Lender the following executed
documents, all in form satisfactory to Lender:
(a) The Office Note, in the form attached hereto
as EXHIBIT "B";
(b) An Environmental Certificate with
Representations, Covenants and Warranties, with respect to the FCFC
Property, in form acceptable to Lender;
(c) The FCFC Deed of Trust, in form acceptable
to Lender;
(d) The Third Modification of Deed of Trust
[Headquarters], in form acceptable to Lender;
(e) An opinion from Borrower's counsel, which
counsel must be acceptable to Lender, with respect to such matters as
Lender shall require;
(f) This Fourteenth Amendment;
(g) From the Guarantor of the Loan, a "Consent of
Guarantor," in a form acceptable to Lender;
(h) A corporate resolution of Borrower;
(i) A corporate resolution of Guarantor;
(j) UCC Financing Statements for filing and/or
recording with respect to the FCFC Property;
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(k) From each tenant of the FCFC Property, an
estoppel agreement, which estoppel agreement shall be in the form
attached hereto as EXHIBIT "C" with respect to all tenants except
tenants on month-to-month leases, and in the form of EXHIBIT "D" with
respect to all month-to-month tenants;
(l) From all tenants of the FCFC Property who are
not occupying their premises under month-to-month leases,
subordination, nondisturbance and attornment agreements in recordable
forms acceptable to Lender;
(m) Such other documents or instruments required
by Lender to fully perfect the liens and security interests of Lender
described or contemplated herein;
(n) Such other items as Lender may require.
5.2 Borrower shall deliver to Lender, at
Borrower's cost, a report, satisfactory to Lender, of a third-party engineer or
architect acceptable to Lender setting forth the results of such engineer's or
architect's inspection of all of the building improvements located on the FCFC
Property. In addition, Lender shall have inspected the FCFC Property and shall
be satisfied as to the condition thereof. The foregoing condition shall be
deemed to have been satisfied upon Lender's funding of the FCFC Advance.
5.3 Borrower shall have delivered to Lender a
current (dated not more than six (6) months prior to the funding of the FCFC
Advance) Phase I Environmental Assessment for the FCFC Property performed by an
environmental consultant acceptable to Lender, indicating that the FCFC
Property does not contain and is not affected by existing or potential
environmental contamination. If Lender is not satisfied with the results of
the Phase I Environmental Assessment or if Lender becomes aware of any
environmental issues impacting the FCFC Property, Lender shall have the right
to require a site audit and regulatory compliance evaluation of the FCFC
Property, which shall be prepared by an environmental engineer acceptable to
Lender and retained at the cost of Borrower, and Lender's obligations hereunder
shall be subject to Lender's approval of such audit and evaluation.
5.4 Borrower shall have delivered to Lender a
current ALTA survey of the FCFC Property, certified to Lender by a licensed
engineer or surveyor acceptable to Lender, showing, inter alia, the dimensions
of the FCFC Property, access thereto, streets and street lines, easements,
location of all improvements and all other physical details thereof. In
addition, Borrower shall have delivered to Lender a current title report with
respect to the FCFC Property from a title insurance company acceptable to
Lender and Lender shall have approved the condition of title thereto as shown
therein.
5.5 Borrower shall have obtained and delivered to
Lender, at Borrower's expense, an ALTA extended coverage mortgagee's title
insurance policy issued in favor of Lender by a title insurance company
acceptable to Lender, with such additional endorsements as Lender may require,
in the amount of the Office Note, insuring that the FCFC Deed of Trust and
Headquarters Deed of Trust are first and prior liens on the FCFC Property and
Headquarters, respectively, subject only to such title exceptions as may be
approved by Lender.
5.6 Borrower shall have delivered to Lender
evidence satisfactory to Lender that the FCFC Property is not located within a
special flood hazard area or evidence satisfactory to Lender that the FCFC
Property is insured, upon such terms and in such amounts
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as shall be satisfactory to Lender, against risks of physical damage caused by
flooding.
5.7 Borrower shall have obtained such public
liability, casualty and other insurance policies covering the FCFC Property as
Lender may require, written by insurers in amounts and forms satisfactory to
Lender.
5.8 Unless waived by Lender in writing, Lender
shall have reviewed and approved credit references of Borrower and Guarantor.
The foregoing condition shall be deemed to have been waived by Lender upon
Lender's funding of the FCFC Advance.
5.9 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.
5.10 Unless waived in writing by Lender, Lender
shall have reviewed and approved a current UCC, tax lien, judgment and
litigation search on Borrower and Guarantor.
5.11 Borrower shall have paid, or shall have
assumed the obligation or otherwise provided for the payment of all closing
costs, title company charges, recording fees and taxes, appraisal fees and
expenses, survey fees, travel expenses, architect/engineer inspection fees and
expenses, fees and expenses of Lender's counsel, and all other costs and
expenses incurred by Lender in connection with the preparation, closing and
disbursement of the FCFC Advance pursuant to this Fourteenth Amendment.
5.12 Borrower shall have paid the FCFC Advance
Loan Fee in the amount required to be paid with respect to the FCFC Advance
made by Lender pursuant hereto.
5.13 Borrower shall have provided Lender with an
appraisal of the FCFC Property made by an appraiser certified in the State of
Nevada and acceptable to Lender, which appraisal shall (a) have been made
within six (6) months prior to the funding of the FCFC Advance, (b) indicate
that the FCFC Property has an "as is" market value of not less than $4,400,000,
and (c) otherwise be acceptable to Lender.
5.14 Lender shall be satisfied, in its sole
discretion, with any and all easement agreements, parking agreements, and
common area or common wall agreements by and among Borrower and the owners of
real property adjoining the FCFC Property.
5.15 Borrower or Borrower's counsel shall have
provided to Lender, for Lender's review, all of the following:
(a) A written summary of all pending litigation
in which either Borrower or Guarantor is named as defendant.
(b) Certified copies of the complaint, answer and
all other substantive pleadings filed in any lawsuit brought against
Borrower or Guarantor by or on behalf of any shareholder of Guarantor.
(c) Copies of any and all insurance policies
which may provide coverage against or with respect to the claims made
in the lawsuits described in subsection 5.15(b) above.
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(d) Copies of any and all management letters
written to Guarantor by its accountants Deloitte & Touche L.L.P. with
respect to Guarantor's 1994 and 1995 fiscal years.
5.16 Lender shall be satisfied that Borrower is in
compliance with all terms, covenants and conditions of the Loan Agreement and
that there exists no Event of Default or event that with the passage of time or
the giving of notice or both would constitute an Event of Default under the
Loan Agreement.
5.17 Lender shall be satisfied with the current
status of those lending agreements between Borrower and Xxxxxx Financial Corp.
and between Borrower and Textron Financial Corporation, as verbally confirmed
by such lenders to Lender.
6. ADDITIONAL CONDITIONS AND COVENANTS. As further
consideration for Lender's execution of this Fourteenth Amendment and the FCFC
Advance, and in addition to all other covenants and conditions of Borrower
which are set forth in the Loan Agreement, as modified by the Fourteenth
Amendment, Borrower hereby covenants and agrees as follows:
6.1 Not later than one (1) year following the
funding of the FCFC Advance, Borrower shall deliver to Lender evidence
satisfactory to Lender that Borrower has expended at least $400,000 for tenant
improvements and other building improvements on the FCFC Property, which
improvements shall include, without limitation, those repairs and improvements
described in EXHIBIT "E" attached hereto and incorporated herein by this
reference (the "Improvements"). The amount expended by Borrower in connection
with the Improvements may include "soft" costs and reasonable and customary
salaries paid to employees of Borrower performing repair and construction
activities with respect to the FCFC Property.
6.2 Borrower shall cause the payment of any
management fees due to an affiliate of Borrower as fees for the management of
the FCFC Property, if any, to be subordinated to all of Borrower's indebtedness
to Lender. For the purposes hereof, a person or entity shall be deemed an
affiliate of Borrower if it is a shareholder, officer, director or employee of
Borrower or a relative of any of the foregoing, or any other person or entity
related to or affiliated with Borrower, including, without limitation, the
Guarantor and any affiliates of the Guarantor.
6.3 Borrower shall furnish to Lender, not later
than sixty (60) days subsequent to the end of each fiscal quarter of Borrower,
a rent roll and summary of all leasing activities with respect to the FCFC
Property, certified to be correct by Borrower and Borrower's property manager
for the FCFC Property, if any.
6.4 Borrower shall deliver to Lender, for
Lender's review and approval, prior to the effective date thereof, all leases
entered into following the date hereof with respect to the lease of premises in
the FCFC Property in excess of 2,500 square feet and with terms longer than
month-to-month. In the event that Lender fails to approve or reject such a
lease within ten (10) business days following receipt of both a draft of such
lease together with financial statements of the prospective tenant, such lease
shall be deemed approved. Within sixty (60) days following the execution of a
lease with respect to any portion of the FCFC Property, whether or not Lender's
approval to such lease is required, Borrower shall provide Lender with an
estoppel and attornment agreement executed by the new tenant in favor
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of Lender, in form and content similar to the form attached hereto as EXHIBIT
"C" with respect to those tenants who are not leasing space under
month-to-month leases, and in the form of EXHIBIT "D" attached hereto with
respect to those tenants leasing space under month-to-month leases.
6.5 On or before July 31, 1996, Borrower shall
enter into a further amendment of the Loan Agreement, pursuant to which the
Maximum Loan Amount shall be increased to $57,000,000. Borrower shall execute
such further documents, including amendments to all deeds of trust and
mortgages executed by Borrower in favor of Lender, and satisfy such additional
conditions thereto as required by Lender at such time.
Any failure by Borrower to satisfy the above covenants and conditions within
the time period specified, if any, shall constitute an Event of Default under
the Loan Agreement.
7. 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 Fourteenth 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 Fourteenth
Amendment.
8. 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 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 or any of the other Documents, with or
without notice or lapse of time.
9. VALIDITY OF DOCUMENTS. Borrower hereby ratifies,
reaffirms, acknowledges and agrees that the Loan Agreement 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 or GREFCO.
10. REAFFIRMATION OF WARRANTIES. Except to the extent,
if any, that the information in Exhibit 8.3(a) to the Loan Agreement has been
supplemented by EXHIBIT "F" attached hereto, or waived by Lender in writing,
Borrower hereby reaffirms to Lender each of the representations, warranties,
covenants and agreements of Borrower as set forth in each of the Documents with
the same force and effect as if each were separately stated herein and made as
of the date hereof.
11. RATIFICATION OF TERMS AND CONDITIONS. All terms,
conditions and provisions of the Loan Agreement, including the First Amendment,
Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth
Amendment, Seventh Amendment, Eighth Amendment, Ninth Amendment, Tenth
Amendment, Eleventh Amendment, Twelfth Amendment, Thirteenth Amendment, and of
each of the other Documents shall continue in full force and effect and shall
remain unaffected and unchanged except as specifically amended
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hereby. In the event of any conflict between the terms and conditions of this
Fourteenth Amendment and any of the other Documents, the provisions of this
Fourteenth Amendment shall control.
12. 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 Fourteenth Amendment.
13. EFFECTIVENESS OF AMENDMENT. This Fourteenth
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:_____________________________________
Xxxxxx X. Xxxxxxxxx, Title:__________________________________
Vice President
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STATE OF ARIZONA )
) ss
COUNTY OF MARICOPA )
BEFORE ME, the undersigned authority, a Notary Public in and
for the County and State aforesaid, on this day personally appeared XXXXXX X.
XXXXXXXXX, known to me to be the Vice President of PREFERRED EQUITIES
CORPORATION, a Nevada corporation, who acknowledged to me that the same was the
free act and deed of such corporation and that 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
______________, 1996.
______________________________________
Notary Public
My commission expires:
____________________
STATE OF ARIZONA )
) ss
COUNTY OF MARICOPA )
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 FINOVA CAPITAL CORPORATION, a Delaware
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
______________, 1996.
_______________________________________
Notary Public
My commission expires:
____________________
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SECOND AMENDED AND RESTATED
PROMISSORY NOTE
[HEADQUARTERS AND FCFC PROPERTY]
U.S. $6,773,778.74 As of June 5, 1996
Phoenix, Arizona
FOR VALUE RECEIVED, the undersigned PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Maker"), promises to pay to FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), or order, at such place as the
holder of this Second Amended and Restated Promissory Note ("Holder") may from
time to time designate in writing, in lawful money of the United States of
America, the principal sum of SIX MILLION SEVEN HUNDRED SEVENTY-THREE THOUSAND
SEVEN HUNDRED SEVENTY-EIGHT AND 74/100 UNITED STATES DOLLARS (U.S.
$6,773,778.74), or so much thereof as has been disbursed and not repaid,
together with interest on the unpaid principal balance from time to time
outstanding from the date hereof until paid, as more fully provided for below.
Interest due under this Second Amended and Restated Promissory
Note (the "Note") shall (a) accrue daily on the basis of the actual number of
days in the computation period and (b) be calculated on the basis of a year
consisting of 360 days. Interest shall accrue initially at an annual interest
rate ("Initial Interest Rate") equal to Prime (as hereinafter defined) in
effect on the first business day of the month of this Note ("Initial Prime")
plus 2-1/4% per annum, subject to adjustment on each Interest Rate Change Date
(as hereinafter defined), but in no event to exceed the maximum contract rate
permitted under the Applicable Usury Law (as hereinafter defined). The
interest rate shall change on each Interest Rate Change Date by adding to or
subtracting from the Initial Interest Rate, as the case may be, the change, if
any, between Initial Prime and Prime in effect on the applicable Interest Rate
Change Date. As used in this Note, the following capitalized terms have the
meaning set forth opposite them below:
"Prime" shall mean the rate of interest publicly announced,
from time to time, by Citibank, N.A., New York, New York
("Citibank"), as the corporate base rate of interest charged
by Citibank to its most creditworthy commercial borrowers
notwithstanding the fact that some borrowers of Citibank may
borrow from Citibank at rates of less than such announced
Prime rate; and
"Interest Rate Change Date" means (a) the first business day
of Citibank, N.A., in New York, New York, during the calendar
month following the date of this Note and (b) the first
business day of Citibank, N.A., during each successive month
thereafter.
This Note shall be repaid in immediately available funds in
eighty-four (84) monthly installments of principal and interest calculated in
the manner set forth below. The first monthly installment shall be due and
payable on July 1, 1996 and subsequent monthly installments shall be due and
payable on the first business day of each and every month thereafter. The
first eighty-three (83) installments shall be in an amount equal to interest
(in arrears) and a monthly principal payment which shall equal the principal
payment obtained when the beginning principal balance of this Note is amortized
over an eighty-four (84) month principal amortization schedule using the
Initial Interest Rate. Any remaining principal and all other
13
sums due and owing pursuant hereto plus accrued and unpaid interest shall be
due and payable on July 1, 2003 (the "Maturity Date").
Payments of principal and/or interest shall, at the option of
Holder, earn interest after they are due at a rate ("Overdue Rate") equal to
(a) 2% per annum above the rate otherwise payable hereunder or (b) the maximum
contract rate permitted under the Applicable Usury Law, whichever of (a) or (b)
is lesser. Furthermore, in the event of the occurrence of an Event of Default
(as the term "Event of Default" is defined in the Loan Agreement) the unpaid
principal balance of this Note shall, at the option of Holder, accrue interest
at the Overdue Rate.
This Note is executed pursuant to that certain Amendment No.
14 to Amended and Restated Loan and Security Agreement of even date herewith
between Maker and Lender (such Amended and Restated Loan and Security
Agreement, as amended, the "Loan Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement, the applicable provisions of which are incorporated herein by
reference.
All payments made under this Note shall be applied first
against amounts due hereunder or under the Loan Agreement, other than principal
and interest; second, against interest then due under this Note; and third,
against the principal of this Note.
In the event any installment of principal and/or interest
required to be made in connection with the indebtedness evidenced hereby is not
paid when due and, except in the case of the final installment, for which no
grace period is allowed, such default continues for five days after notice
thereof to Maker or an Event of Default occurs, Holder may, at its option,
without notice or demand, declare immediately due and payable the entire unpaid
principal balance hereof, all accrued and unpaid interest thereon, and all
other charges owing in connection with the loan evidenced hereby.
The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the interest
rate, calculated and applied to the principal balance of this Note in
accordance with the provisions of this Note; (ii) Overdue Rate, calculated and
applied to the amounts due under this Note in accordance with the provisions
hereof; (iii) Headquarters Readvance Loan Fee and FCFC Advance Loan Fee; and
(iv) all Additional Sums (as hereinafter defined), if any. Maker agrees to pay
an effective contracted for rate of interest which is the sum of the above
referenced elements.
All fees, charges, goods, things in action or any other sums
or things of value (other than amounts described in the immediately previous
paragraph), paid or payable by Maker (collectively, the "Additional Sums"),
whether pursuant to this Note, the Loan Agreement, the other Documents or any
other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction,
shall be payable by Maker as, and shall be deemed to be, additional interest,
and for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by the
rate of interest resulting from the Additional Sums.
This Note is prepayable in whole but not in part at any time subject to the
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following conditions:
(a) Not less than thirty (30) days prior to the
date on which Maker desires to make such prepayment, Maker shall
deliver to Holder written notice of Maker's intention to prepay, which
notice shall be irrevocable and shall state the prepayment date; and
(b) Maker pays to Holder, concurrently with such
prepayment (i) a prepayment premium (the "Prepayment Premium") equal
to (A) three percent (3%) of the amount prepaid if such prepayment is
made on or before June 30, 1996, (B) two percent (2%) of the amount
prepaid if such prepayment is made after June 30, 1996 and on or
before June 30, 1997 and (C) one percent (1%) of the amount prepaid if
such prepayment is made after June 30, 1997 and on or before June 30,
1998 and (ii) accrued and unpaid interest through the date of such
prepayment on the principal balance being prepaid (it being agreed and
understood that no Prepayment Premium shall be payable if this Note is
prepaid at any time after June 30, 1998). The foregoing
notwithstanding, in the event a prepayment of this Note occurs as a
result of an acceleration by Holder of the balance due pursuant to its
right to declare an acceleration hereof under the terms of the Loan
Agreement, the Prepayment Premium shall equal five percent (5%) of the
principal being prepaid, notwithstanding the date upon which such
acceleration occurs.
In the event that Holder institutes legal proceedings to
enforce this Note and Holder is the prevailing party in such proceedings, Maker
agrees to pay Holder, in addition to any indebtedness due and unpaid, all costs
and expenses of such proceedings, including, without limitation, attorneys'
fees.
Holder shall not by any act or omission or commission be
deemed to waive any of its rights or remedies hereunder unless such waiver be
in writing and signed by an authorized officer of Holder and then only to the
extent specifically set forth therein; a waiver on one occasion shall not be
construed as continuing or as a bar to or waiver of such right or remedy on any
other occasion. All remedies conferred upon Holder by this Note or any other
instrument or agreement connected herewith or related hereto shall be
cumulative and none is exclusive and such remedies may be exercised
concurrently or consecutively at Holder's option.
Every person or entity at any time liable for the payment of
the indebtedness evidenced hereby waives: presentment for payment, protest and
demand; notice of protest, demand, dishonor and nonpayment of this Note; and
trial by jury in any litigation arising out of, relating to or connected with
this Note or any instrument given as security herefor. Every such person or
entity further consents that Holder may renew or extend the time of payment of
any part or the whole of the indebtedness at any time and from time to time at
the request of any other person or entity liable therefor. Any such renewals
or extensions may be made without notice to any person or entity liable for the
payment of the indebtedness evidenced hereby.
This Note is given and accepted as evidence of indebtedness
only and not in payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's
obligations and agreements under this Note.
This Note and all of the provisions, conditions, promises and
covenants hereof
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shall be binding in accordance with the terms hereof upon Maker, its successors
and assigns, provided nothing herein shall be deemed consent to any assignment
restricted or prohibited by the terms of the Loan Agreement. If more than one
person or other entity has executed this Note as Maker, the obligations of such
persons and entities shall be joint and several.
This Note has been executed and delivered in Phoenix, Arizona,
and the obligations of Maker hereunder shall be performed in Phoenix, Arizona.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ARIZONA AND,
TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS OF THE UNITED
STATES. Maker (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 Arizona, for the purposes of suit, action or other proceedings arising out
of or relating to this Note or the subject matter hereof brought by Holder 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 Maker is not personally subject to the
jurisdiction of the above-named courts, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper.
It is the intent of the parties to comply with the usury law
("Applicable Usury Law") applicable pursuant to the terms of the preceding
paragraph or such other usury law which is applicable if the law chosen by the
parties is not. Accordingly, it is agreed that notwithstanding any provisions
to the contrary in this Note, or in any of the documents securing payment
hereof or otherwise relating hereto, in no event shall this Note or such
documents require the payment or permit the collection of interest in excess of
the maximum contract rate permitted by the Applicable Usury Law. In the event
(a) any such excess of interest otherwise would be contracted for, charged or
received from Maker or otherwise in connection with the loan evidenced hereby,
or (b) the maturity of the indebtedness evidenced by this Note is accelerated
in whole or in part, or (c) all or part of the principal or interest of this
Note shall be prepaid, so that under any of such circumstance the amount of
interest contracted for, shared or received in connection with the loan
evidenced hereby, would exceed the maximum contract rate permitted by the
Applicable Usury Law, then in any such event (1) the provisions of this
paragraph shall govern and control, (2) neither Maker nor any other person or
entity now or hereafter liable for the payment hereof will be obligated to pay
the amount of such interest to the extent that it is in excess of the maximum
contract rate permitted by the Applicable Usury Law, (3) any such excess which
may have been collected shall be either applied as a credit against the then
unpaid principal amount hereof or refunded to Maker, at Holder's option, and
(4) the effective rate of interest will be automatically reduced to the maximum
amount of interest permitted by the Applicable Usury Law. It is further
agreed, without limiting the generality of the foregoing, that to the extent
permitted by the Applicable Usury Law: (x) all calculations of interest which
are made for the purpose of determining whether such rate would exceed the
maximum contract rate permitted by the Applicable Usury Law shall be made by
amortizing, prorating, allocating and spreading during the period of the full
stated term of the loan evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise in connection with such loan;
and (y) in the event that the effective rate of interest on the loan should at
any time exceed the maximum contract rate allowed under the Applicable Usury
Law, such excess interest that would otherwise have been collected had there
been no ceiling imposed by the Applicable Usury Law shall be paid to Holder
from time to time, if and when the effective interest rate on the loan
otherwise falls below the maximum amount permitted by the Applicable Usury Law,
to the extent that interest paid to the date of calculation does not exceed the
maximum contract rate permitted by the Applicable Usury Law, until the
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entire amount of interest which would have otherwise been collected had there
been no ceiling imposed by the Applicable Usury Law has been paid in full.
Maker further agrees that should the maximum contract rate permitted by the
Applicable Usury Law be increased at any time hereafter because of a change in
the law, then to the extent not prohibited by the Applicable Usury Law, such
increases shall apply to all indebtedness evidenced hereby regardless of when
incurred; but, again to the extent not prohibited by the Applicable Usury Law,
should the maximum contract rate permitted by the Applicable Usury Law be
decreased because of a change in the law, such decreases shall not apply to the
indebtedness evidenced hereby regardless of when incurred.
In the event of any conflict or inconsistency between the
provisions of this Note and the provisions of the Loan Agreement, the
provisions of the Loan Agreement shall control.
This Note is an amendment and restatement of that certain
Amended and Restated Promissory Note, dated as of September 29, 1995, by Maker
to the order of Lender. This Note shall not constitute a waiver of any
existing default or breach of a covenant, if any, and shall have no retroactive
effect; provided, however, that any and all written waivers given heretofore
are hereby extended to the date hereof.
PREFERRED EQUITIES CORPORATION, a
Nevada corporation
"Maker"
By:_______________________________________________
Name:__________________________________________
Its:___________________________________________
Federal Taxpayer Identification
Number: 00-0000000
Address:
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: President
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