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EXHIBIT 10.188
AMENDED AGREEMENT CONCERNING "SPLIT-DOLLAR" LIFE INSURANCE PLAN
AMENDMENT made as of the 26th day of April, 1999 to the AGREEMENT made
as of the 1st day of January, 1995, between MEGO FINANCIAL CORP. (the
"Employer"), XXXXX XXXXX and XXXX XXXXXX, as Trustees (the "Trustees") of the
NEDERLANDER 1994 INSURANCE TRUST, dated December 19, 1994, (the "Trust"), XXXXXX
X. XXXXXXXXXXX and XXXXXX XXXXXXXXXXX.
WHEREAS:
1. An Agreement was entered into as of the 1st day of January, 1995,
between MEGO FINANCIAL CORP., XXXXX XXXXX and XXXX XXXXXX, as Trustees of the
NEDERLANDER 1994 INSURANCE TRUST, dated December 19, 0000, XXXXXX X. XXXXXXXXXXX
and XXXXXX XXXXXXXXXXX.
2. Paragraph 5 of said Agreement provided that the Agreement, or any of
its provisions, could be amended, supplemented, modified or waived by a writing
signed by the party to be bound thereby.
3. The parties hereto wish to amend said Agreement and restate it in its
entirety.
NOW, THEREFORE, the parties hereto amend said Agreement and restate it
in its entirety as follows:
AGREEMENT made as of the 1st day of January, 1995, between MEGO
FINANCIAL CORP. (the "Employer"), XXXXX XXXXX and XXXX XXXXXX, as Trustees (the
"Trustees") of the NEDERLANDER 1994 INSURANCE TRUST, dated December 19, 1994,
(the "Trust"), XXXXXX X. XXXXXXXXXXX and XXXXXX XXXXXXXXXXX.
WHEREAS:
1. The Trust owns a policy of insurance on the joint lives of XXXXXX X.
XXXXXXXXXXX and his wife, XXXXXX XXXXXXXXXXX (the "Insureds").
2. The policy of insurance owned by the Trust and referred to in this
Agreement was issued by the UNITED STATES LIFE INSURANCE COMPANY (the "Insurer")
as Policy No. 4001964L (the "Policy").
3. XXXXXX X. XXXXXXXXXXX (the "Employee") is currently the Chairman and
Chief Executive Officer of the Employer.
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4. The Employer has agreed to establish a split-dollar life insurance
plan (the "Plan") to assist the Trust in paying premiums due on the Policy.
5. The Trust has agreed to assign to the Employer certain specific
rights in and to the Policy in consideration of payment by the Employer of
premiums due on the Policy.
NOW, THEREFORE, the Employer, the Trust and the Insureds agree that:
1. Payment of Premiums: The Employer will pay all premiums due on the
Policy to the Insurer on or before the date or dates on which they become due
through January 31, 1998, at which time the Employer's obligation to pay said
premiums shall cease.
2. Policy Ownership and Collateral Assignment: The Trust will continue
to own the Policy and shall assign to the Employer, subject to the terms and
conditions of the Policy and to any superior liens that the Insurer may have
against the Policy, the following specific rights in and to the Policy:
(a) The right to obtain, upon surrender of the Policy by the
Trust, an amount from the surrender proceeds equal to but not exceeding the
amount of the Employer's Interest in the Policy, as defined in paragraph 3
(hereinafter "Employer's Interest in the Policy"). If, (1) the Trust borrows any
amounts from the cash surrender value of the Policy pursuant to this Agrement
and (2) upon a surrender of the Policy by the Trust, the amount of the
Employer's Interest in the Policy exceeds the surrender proceeds, any shortfall
shall be paid to the Employer by the Insureds (or either one of them).
(b) The right to collect, upon a claim by the Trust under the
Policy by reason of the death of the Insureds, an amount from the proceeds equal
to but not exceeding the amount of the Employer's Interest in the Policy, as
defined in paragraph 3, determined immediately prior to the death of the
survivor of the Insureds.
As owner of the Policy, the Trust will possess and exercise exclusively
all remaining rights in and to the Policy not otherwise assigned to the Employer
by reason of this Agreement, including, without limitation, the right to assign
the Policy to a third party, the right to designate the beneficiary or
beneficiaries of any death benefit in excess of the Employer's Interest in the
Policy, the right to surrender the Policy and the right to reduce the death
benefit payable under the Policy (provided, however, that the death benefit may
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not be reduced to an amount less than the aggregate amount of premiums paid by
the Employer on the Policy). In addition, the Trust shall have the right to
borrow from the cash surrender value of the policy; provided, however, that the
Trust may borrow only to the extent that immediately after any such borrowing
the cash surrender value of the Policy shall be no less than the aggregate
amount of premiums paid by the Employer on the Policy reduced by the aggregate
amount, if any, paid by or on behalf of the Trust to the Employer in
reimbursement of premiums paid by the Employer on the Policy.
The Employer agrees that it will not exercise its rights in and to the
Policy in any way that may conflict with the exercise by the Trust of its rights
in and to the Policy or that may delay or otherwise interfere with receipt by
its designated beneficiary or beneficiaries of any death benefit under the
Policy in excess of the Employer's Interest in the Policy. The Employer agrees
that it will not assign its rights in and to the Policy to any person or entity
other than the Trust without the prior consent of the Trustees.
The Trust agrees to notify the Employer of any assignment of its rights
in and to the Policy, in whole or in part.
3. Employer's Interest in the Policy: The amount of the Employer's
Interest in the Policy, wherever referred to in this Agreement, is an amount
equal to the lesser of (a) the net cash surrender value of the Policy as
calculated without giving regard to any premium payments which may have been
paid by either or both of the Insureds or by any trust created by either or both
of the Insureds and (b) the aggregate amount of premiums paid by the Employer on
the Policy, and in each case reduced by the aggregate amount, if any, paid by or
on behalf of the Trust to the Employer in reimbursement of premiums paid by the
Employer on the Policy. Notwithstanding the foregoing, if at any time this
Agreement is in effect, the Trust borrows any amounts from the cash surrender
value of the Policy, the Employer's Interest in the Policy, wherever referred to
in this Agreement, is an amount equal to the aggregate amount of premiums paid
by the Employer on the Policy reduced by the aggregate amount, if any, paid by
or on behalf of the Trust to the Employer in reimbursement of premiums paid by
the Employer on the Policy.
4. Termination of Agreement: This Agreement will terminate upon
whichever of the following is the first to occur:
(a) Surrender of the Policy by the Trust.
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(b) Payment by or on behalf of the Trust to the Employer of an
amount equal to the Employer's Interest in the Policy.
(c) The death of the survivor of the Insureds.
Upon termination of this Agreement and receipt by the Employer of the
Employer's Interest in the Policy, the Employer agrees to execute such documents
as may be reasonably required by the Trust to release the Employer's rights in
and to the Policy.
5. Amendment and Effect: This Agreement contains the entire
understanding between the Trust, the Employer and the Insureds concerning the
matters addressed herein. This Agreement, or any of its provisions, may not be
amended, supplemented, modified or waived unless by a writing signed by the
party to be bound thereby. If any provision of this Agreement is determined to
be void, invalid or unenforceable, the remaining provisions will not be
affected, but will continue in effect as though such void, invalid or
unenforceable provision were not originally a part of this Agreement. This
Agreement will benefit and bind the heirs, executors, administrators, personal
representatives, successors and assigns of each of the parties hereto.
Notwithstanding the foregoing, the Trustees are entering into this Agreement
solely in their capacity as Trustees and not individually.
6. Special Provisions: To the extent required by law, the following
provisions are part of this Agreement and are intended to meet the requirements
of the Employee Retirement Income Security Act of 1974:
(a) The named fiduciary: The Employer.
(b) The funding policy under this Plan is that premiums on the
Policy shall be remitted by the Employer as provided in
paragraph 1 of this Agreement.
(c) Direct payment by the Insurer is the basis of payment of
benefits under this Plan, with those benefits in turn being
based on the payment of premiums as provided in the Plan.
(d) For claims procedure purposes, the "Claims Manager" shall be the
Secretary of the Employer.
(1) If for any reason a claim for benefits under this plan
is denied by the
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Employer, the Claims Manager shall deliver to the
claimant a written explanation setting forth the
specific reasons for the denial, pertinent references to
the Plan section on which the denial is based, such
other data as may be pertinent and information on the
procedures to be followed by the claimant in obtaining a
review of the claim, all written in a manner calculated
to be understood by the claimant. For this purpose:
(A) The claimant's claim shall be deemed
filed when presented orally or in
writing to the Claims Manager.
(B) The Claims Manager's explanation shall
be in writing delivered to the claimant
within 90 days of the date the claim is
filed.
(2) The claimant shall have 60 days following receipt of the
denial of the claim to file with the Claims Manager a
written request for review of the denial. For such
review, the claimant or the claimant's representative
may submit pertinent documents and written issues and
comments.
(3) The Claims Manager shall decide the issue on review and
furnish the claimant with a copy within 60 days of
receipt of the claimant's request for review of the
claim. The decision on review shall be in writing and
shall include specific reasons for the decision, written
in a manner calculated to be understood by the claimant,
as well as specific references to the pertinent Plan
provisions on which the decision is based. If a copy of
the decision is not so furnished to the claimant within
such 60 days, the claim shall be deemed denied on
review.
7. Governing Law: This Agreement will be governed by and its validity,
effect and interpretation determined by the laws of the State of New York
applicable to contracts made and to be performed wholly in that state.
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10. Further Assurances: Each party, upon the other's request and without
cost to the other, agrees to take any action, and to sign, acknowledge and
deliver to the other party any additional document, necessary or expedient to
effectuate the purposes of this Agreement.
11. Counterparts: This Agreement may be executed in counterparts, each
of which will be an original, which together will constitute one Agreement.
12. This Agreement supercedes any prior arrangements, undertakings or
agreements relating to the insurance policy referred to herein.
IN WITNESS WHEREOF, the parties have signed this
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Agreement as of the day and year first written above.
ATTEST: MEGO FINANCIAL CORP.
______________________________ By:__________________________
WITNESS:
NEDERLANDER 1994 INSURANCE
TRUST UNDER AGREEMENT
DATED December 19, 1994
_____________________________ By:_________________________
XXXXX XXXXX, as
Trustee and not
individually
_____________________________ By:_________________________
XXXX XXXXXX, as
Trustee and not
individually
______________________________
XXXXXX X. XXXXXXXXXXX
______________________________
XXXXXX XXXXXXXXXXX
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