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EXHIBIT 10.199
FIFTH AMENDMENT TO FORBEARANCE AGREEMENT AND
AMENDMENT NO. 10 TO SECOND AMENDED AND RESTATED AND
CONSOLIDATED LOAN AND SECURITY AGREEMENT
This Fifth Amendment to Forbearance Agreement and Amendment No.
10 to Second Amended and Restated and Consolidated Loan and Security Agreement
("Amendment") is made and entered into this 25th day of February, 2000 (the
"Effective Date"), by and among FINOVA CAPITAL CORPORATION, a Delaware
corporation ("FINOVA" or "Lender"), PREFERRED EQUITIES CORPORATION, a Nevada
corporation ("Borrower") and MEGO FINANCIAL CORP., a New York corporation
("Guarantor") and has reference to the following facts:
A. Lender and Borrower entered into a Second Amended and Restated
and Consolidated Loan and Security Agreement dated as of May 15, 1997 (the
"Original Loan Agreement") that evidences a loan from Lender to Borrower. The
Original Loan Agreement was amended by the Hartsel Springs Side Letter dated
February 18, 1998 (the "First Amendment"); by the Letter Agreement [Biloxi
Property] dated March 20, 1998 (the "Second Amendment"); by the Letter Agreement
[Headquarters Readvance] dated September 29, 1998 (the "Third Amendment"); by
the Amendment No. 4 to Second Amended and Restated and Consolidated Loan and
Security Agreement dated November 6, 1998 (the "Fourth Amendment"); by the
Forbearance Agreement and Amendment No. 5 to Second Amended and Restated and
Consolidated Loan and Security Agreement dated December 23, 1998, as the same
was amended by a Letter Agreement dated February 8, 1999 (the "Fifth
Amendment"); by the First Amendment to Forbearance Agreement and Amendment No. 6
to Second Amended and Restated and Consolidated Loan and Security Agreement
dated May 7, 1999 (the "Sixth Amendment"); by the Second Amendment to
Forbearance Agreement and Amendment No. 7 to Second Amended and Restated and
Consolidated Loan and Security Agreement dated August 6, 1999 (the "Seventh
Amendment"); by the September 7, 1999 letter agreement regarding the Additional
Advance Note (the "Additional Advance Letter"); by the Third Amendment to
Forbearance Agreement and Amendment No. 8 to Loan and Security Agreement dated
November 9, 1999 (the "Eighth Amendment"); a side letter, dated December 3, 1999
between the Borrower and Lender (the "Receivable Loan Lot Cap Letter"); and, by
the Fourth Amendment to Forbearance Agreement and Amendment No. 9 to Loan and
Security Agreement dated December 17, 1999 (the "Ninth Amendment"). The Original
Loan Agreement, First Amendment, Second Amendment, Third Amendment, Fourth
Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment, Additional
Advance Letter, Eighth Amendment, the Receivable Loan Lot Cap Letter and Ninth
Amendment are collectively called the "Loan Agreement." Capitalized terms used
in this Amendment which are defined in the Loan Agreement shall have the same
meaning and definition when used herein.
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B. Borrower has informed the Lender of occurrence of certain
Events of Default and Incipient Defaults on the part of the Borrower under the
Loan Agreement which are more particularly hereinafter described and has
requested the Lender to forebear from exercising its rights under the Loan
Agreement which arise as a result of the same, and the Lender is willing to do,
upon and subject to the terms and conditions set forth in this Amendment.
Now, therefore, in consideration of the foregoing and for the
good and valuable consideration provided herein, Lender, Borrower and Guarantor
agree as follows:
1. On the Effective Date, the provisions of Article 1 of the Loan
Agreement is amended to add the following definitions:
"TENTH AMENDMENT": shall mean and collectively refer to the Tenth
Amendment to Forbearance Agreement and Amendment No. 10 to Second
Amended and Restated and Consolidated Loan and Security Agreement made
and entered into on February 25, 2000 among Borrower, Lender and
Guarantor.
2. (a) Under the Loan Agreement, the maximum Borrowing Base
allocable to Eligible Receivables arising from Unsolidified Lot Sales is limited
to 65% of the unpaid principal balance of all Eligible Receivables consisting of
Receivables Collateral constituting Unsolidified Lot Sales (the "Unsolidified
Lot Sale Advance Rate"). The Borrower has notified Lender that as a result of a
computer problem in the Borrower's reporting system, the system used to monitor
the Unsolidified Lot Sales was not able to recognize dates occurring after
December 31, 1999, and as a result, the system inaccurately listed in many cases
the Recession Period for the Instrument or Contract as occurring in the year
1900 not the year 2000 (the "Y2K Error"). As a result of the Y2K Error, the
system incorrectly classified the Instrument or Contract that had Rescission
Periods, as not being an Unsolidified Lot Sale, and all reports supplied by the
Borrower related to the same were incorrect and inaccurate. Based solely on the
material supplied by the Borrower, as of January 31, 2000, the Y2K Error has
resulted in the Borrowing Base being overstated by approximately $2,400,000.00.
Under the provisions of Section 3.4 of the Loan Agreement, the Borrower is
required to make a principal payment on the Receivables Loan in approximately
the amount of $2,400,000.00 or deliver new Eligible Receivables of equal or
greater value. The Borrower has informed the Lender that it is unable to
accomplish the foregoing within the time periods permitted by Section 3.4 of the
Loan Agreement.
(b) In addition to the limitations created by the
Unsolidified Lot Sales Advance Rate, the Loan Agreement limits the total amount
of the Eligible Receivables constituting Unsolidified Lot Sales that may be
included in the Borrowing Base to the lesser of (i) an amount equal to ten
percent (10%) of the total unpaid principal balance of all the Eligible
Receivables consisting of Receivables Collateral which are not constituted of
Unsolidified Lots Sales if the Borrowing Base allocable to the Unsolidified Lot
Sales exceeds at anytime the amount of $2,500,000.00, or (ii) $3,500,000.00 (the
foregoing
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limitation on the Eligible Receivables included in the Borrowing Base
constituting Unsolidified Lot Sales is called the "Unsolidified Lot Sales Cap").
Based solely on the information supplied by the Borrower, the Y2K Error has
resulted in the total amount of Eligible Receivables constituting Unsolidified
Lot Sales in the Borrowing Base exceeding the Unsolidified Lot Sales Cap.
(c) The Borrower acknowledges that the matters described in
Sections 2(a) and (b) of this Amendment are an Event of Default and Incipient
Default, thus entitling the Lender to, among other things, cease making Advances
from the Loan (the Events of Default and Incipient Defaults related to the
matters specifically described in Sections 2(a) and (b) are collectively called
the "Unsolidified Lot Sale Defaults"). Despite the occurrence of the
Unsolidified Lot Sales Default, the Borrower has requested the Lender to
continue to make Advances from the Receivables Loan and forbear from exercising
the rights and remedies available to the Lender under the Documents which arise
by virtue of the Unsolidified Lot Sales Default.
(d) During the period (the "Forbearance Period") commencing on
the Effective Date and continuing until the earlier of (i) March 17, 2000, or
(ii) the date that FINOVA exercises its termination right described in the
following subparagraph of this Section, FINOVA shall forbear from exercising
FINOVA's remedies under the Documents arising by virtue of the Unsolidified Lot
Sales Default. Notwithstanding contrary provisions contained in the Loan
Agreement, during the Forbearance Period, FINOVA shall make Advances of the
Receivables Loan, under the conditions set forth in the Loan Agreement but
without requiring that the Unsolidified Lots Sales Default be cured as a
condition to the Advance, and during the Forbearance Period, the maximum
Borrowing Base allocable to the Unsolidified Lot Sales shall be determined in
the same manner as all other forms of Eligible Receivables, with the effect
that, during the Forbearance Period, the Unsolidified Lot Sales shall be treated
as if the Recession Period applicable to the Unsolidified Lot Sales Contract or
Instrument has expired without the consumer exercising any termination rights
that it may have under the Instrument or Contract. Further, during the
Forbearance Period, FINOVA shall, under the conditions set forth in the Loan
Agreement, partially release Units and Lots from FINOVA's Security Interest
without requiring that the Unsolidified Lot Sales Default described herein be
cured as a condition precedent to such partial releases. FINOVA is not, however,
waiving the Unsolidified Lot Sales Default and specifically reserves all its
rights under the Documents with respect to the same. However, so long as
Borrower is in compliance with this Amendment and the other Documents, during
the Forbearance Period, the Unsolidified Lot Sales Default shall not be deemed
an Event of Default.
(e) FINOVA's agreement to so forbear and to make Advances under
the Loan Agreement shall automatically terminate, without further act or
instrument, upon the occurrence of any of the following events:
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(i) Borrower or Guarantor repudiates or asserts a
defense to any obligation or liability under the Documents or
makes or pursues a claim against FINOVA;
(ii) Borrower fails to timely perform any of its
obligations (other than the Existing Events of Default and
Unsolidified Lot Sales Default) set forth in the Documents (after
giving effect to the then applicable provisions of this
Amendment), including, without limitation, the requirements of
subparagraph 2(f) of this Amendment;
(iii) Borrower or Guarantor makes an assignment for
the benefit of creditors, or generally admits its inability to
pay its obligations as they come due or files a petition in
bankruptcy or an involuntary petition in bankruptcy is filed
naming either Borrower or Guarantor as debtors; or
(iv) FINOVA hereafter becomes aware of (i) any fact
or circumstance that FINOVA believes in good faith is reasonably
likely to impair FINOVA's security of (ii) any Incipient Defaults
(other than those described in this Amendment) or Event of
Default under the Documents after giving effect to the then
applicable provisions of this Amendment and other than Existing
Events of Default, whether now or existing or hereafter
occurring, which would give rise to a right by FINOVA to exercise
any rights or remedies under the Documents.
(f) On or before March 5, 2000, the Borrower agrees to supply to
Lender not less than $400,000 in cash or new Eligible Receivables, which will be
applied by the Lender to the Borrowing Base so as to partially correct the
Unsolidified Lots Sales Default described in Section 2(a) hereof. The Borrower
further acknowledges that FINOVA specifically reserves the right,
notwithstanding any contrary provisions in the Documents, to require the
Borrower to deliver additional Eligible Receivables or cash in a amount required
to correct any imbalance in the Borrowing Base, in the event that further
reconciliations of the Borrowing Base pursuant to Section 3.4(a) of the Loan
Agreement or an audit or review of the Borrower's records to determine the
magnitude of the Y2K Error reveals that the (i) outstanding principal balance of
the Receivables Loan exceeds the Borrowing Base, or (ii) the actual Borrowing
Base allocable to Eligible Receivables exceeds the Unsolidified Lot Sales
Advance Cap, or (ii) the unpaid principal balance of all Eligible Receivables
allocable to the Unsolidified Lot Sales exceeds the Unsolidified Lot Sale Cap,
3. The Documents are amended to provide that all notices to the
Lender shall be sent to its new address: 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx 00000.
4. The Borrower agrees to reimburse Lender for all of Lender's
out-of-pocket costs and expenses including, without limitation, attorney's,
engineers' and other consultants' fees and costs, incurred in connection with
this Amendment.
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5. Borrower and Guarantor each represents and warrants that:
(a) All financial information and other documents it has
provided to Lender in connection with this Amendment are true, complete
and correct as of the date provided and the date hereof;
(b) There exists no Event of Default or Incipient Default,
after giving effect to the then applicable provisions of this Amendment
and other than the Existing Events of Default and the Unsolidified Lot
Sales Default;
(c) After giving effect to this Amendment, there has been
no material adverse change in any real property or in the business or
financial condition of Borrower and Guarantor since the date of the last
financial statements submitted to Lender; and
(d) After giving effect to this Amendment and the most
recent financial and litigation reports supplied to Lender, all
representations and warranties by Borrower and Guarantor remain true,
complete, and correct, in all material respects as of the date hereof.
6. Guarantor acknowledges and agrees that (i) the Guarantee shall
remain in full force and effect, (ii) the obligations of the Guarantor under the
Guarantee are joint and several with those of each other Obligor (as that term
is defined in the Guarantee), (iii) Guarantor's liability under the Guarantee
shall continue undiminished by this Amendment, and (iv) all terms, conditions
and provisions set forth in this Amendment and any other documents and
instruments executed by Borrower in connection with this Amendment and each of
the other Documents, as amended through the date hereof, are hereby ratified,
approved and confirmed.
7. Borrower and Guarantor acknowledge and agree that they have no
defenses, counterclaims, setoffs, recoupments or other adverse claims or causes
of action in tort, contract or of any other kind existing against Lender or with
respect to the Documents, including without limitation, claims regarding the
amount, validity, perfection, priority and enforceability of the Documents.
8. The Documents shall be deemed amended by the provisions of
this Amendment, as and when applicable and any conflict or inconsistency between
this Amendment and the Documents shall be resolved in favor of this Amendment.
Except as so amended, all other consistent terms and conditions of the Documents
will remain in full force and effect, and are hereby ratified and affirmed
(including, but not limiting the generality of the foregoing, Section 14 of the
Fifth Amendment is hereby specifically ratified and affirmed and all references
therein to the term "Amendment" shall be deemed to refer to this Amendment).
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9. Except as may be expressly provided herein, Borrower's and
Guarantor's respective obligations under the Documents shall remain in full
force and effect and shall not be waived, modified, superseded or otherwise
affected by this Amendment. This Amendment is not a novation, nor is it be
construed as a release, waiver, extension of forbearance or modification of any
of the terms, conditions, representations, warranties, covenants, rights or
remedies set forth in any of the Documents, except as expressly stated herein.
10. This Amendment in no way acts as a waiver of any default of
Borrower or as a release or relinquishment of any of the liens, security
interests, rights or remedies securing payment and Performance of the Borrower's
Obligations or the enforcement thereof. Such liens, security interests, rights
and remedies are hereby ratified, confirmed, preserved, renewed and extended by
Borrower in all respects. Further, Lender's execution of this Amendment shall
not constitute a waiver (either express or implied) of the requirement that any
further forbearance under or modification of the Loan Agreement or any other
Document shall require the express written approval of Lender. No such approval
(either express or implied) has been given as of the date hereof.
11. Borrower and Guarantor acknowledge that Lender has performed,
and is not in default of, its obligations under the Documents; that there are no
offsets, defenses or counterclaims in tort, contract or otherwise, with respect
to any of Borrower's or Guarantor's or other party's obligations under the
Documents; and that Lender has not directed Borrower to pay or not pay any of
Borrower's payables.
12. Borrower and Guarantor will execute and deliver such further
instruments and do such things as in the judgment of Lender are necessary or
desirable to effect the intent of this Amendment and to secure to Lender the
benefits of all rights and remedies conferred upon Lender by the terms of this
Amendment and any other documents executed in connection herewith.
13. 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.
14. Any further discussions by and among Borrower, Guarantor and
Lender, if any, and all such discussions in the past, together with any other
actions or inactions taken by and among Borrower, Guarantor and Lender, shall
not cause a modification of the Documents, establish a custom or waive (unless
Lender made such express waiver in writing), limit or condition the rights and
remedies of Lender under the Documents, all of which rights and remedies are
expressly reserved. All of the provisions of
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the Documents, including, without limitation, the time of the essence provision,
are hereby reiterated and if ever waived are hereby reinstated (unless Lender
made such express waiver in writing), except as expressly provided herein.
Notwithstanding anything to the contrary contained herein or in any other
instrument executed by the parties and notwithstanding any other action or
conduct undertaken by the parties on or before the date hereof, the agreements,
covenants and provisions contained herein and the Loan Agreement shall
constitute the only evidence of Lender's agreement to forbear or to modify the
Loan Agreement. Accordingly, no express or implied consent to any further
forbearances or modifications shall be inferred or implied by Lender's execution
of this Amendment. The Loan Agreement and this Amendment, together with the
other Loan Documents, constitute the entire agreement and understanding among
the parties relating to the subject matter hereof, and supersedes all prior
proposals, negotiations, agreements and understandings relating to such subject
matter. In entering into this Amendment, Borrower acknowledges that it is
relying on no statement, representation, warranty, covenant or agreement of any
kind made by the Lender or any employee or agent of the Lender, except for the
agreements of Lender set forth herein.
15. This Amendment shall not be binding upon Lender until
accepted by Borrower and Guarantor as provided for below. This Amendment may be
executed in counterpart, and any number of which have been executed by all
parties shall be deemed to constitute one original. Lender, its attorneys and
agents may also integrate into a single Amendment signature pages from separate
counterpart Amendments. The telecopied signature of a person shall be deemed an
original signature, may be relied upon by others and shall be binding upon the
signer for all purposes provided however that Borrower, Guarantor or any person
otherwise consenting hereto by telecopied signature shall confirm its telecopied
signature by signing and returning to Lender a copy of this Amendment with an
original signature.
16. Borrower's and Guarantor's representatives are experienced
and knowledgeable business people and have been represented by independent legal
counsel who are experienced in all matters relevant to this Amendment,
including, but not limited to, bankruptcy and insolvency law. The parties hereto
have accepted and agreed to this Amendment after being fully aware and advised
of the effect and significance of all of its terms, conditions, and provisions.
17. Unless otherwise specifically stipulated elsewhere in the
Documents, if a matter is left in the Documents or this Amendment to the
decision, right, requirement, request, determination, judgment, opinion,
approval, consent, waiver, satisfaction, acceptance, agreement, option or
discretion of Lender, its employees, Lender's counsel or any agent for or
contractor of Lender, such action shall be deemed to be exercisable by Lender or
such other person in its sole and absolute discretion and according to standards
established in its sole and absolute discretion. Without limiting the generality
of the foregoing, "option" and "discretion" shall be implied by use of the words
"if" or "may."
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18. The Recitals in this Amendment are incorporated into the body
hereof as fully set forth herein.
19. THIS AMENDMENT HAS BEEN EXECUTED AND DELIVERED AND SHALL BE
PERFORMED IN THE STATE OF ARIZONA. THE PROVISIONS OF THIS AMENDMENT AND ALL
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ARIZONA AND TO
THE EXTENT THEY PREEMPT SUCH LAWS, THE LAWS OF THE UNITED STATES. EACH OF
BORROWER, GUARANTOR AND LENDER: (A) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE
PROCESS, JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF ARIZONA, MARICOPA
COUNTY, AND TO THE PROCESS, JURISDICTION, AND VENUE OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA, FOR THE PURPOSES OF SUIT, ACTION OR
OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO ANY DOCUMENT OR THE SUBJECT
MATTER THEREOF, OR, IF LENDER SHALL INITIATE SUCH ACTION, IN THE COURT IN WHICH
SUCH ACTION IS INITIATED PROVIDED THAT SUCH COURT HAS JURISDICTION, AND THE
CHOICE OF SUCH VENUE SHALL IN ALL INSTANCES BE AT LENDER'S ELECTION; AND (B)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT
TO ASSERT BY WAY OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
THE ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN ANY
INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH OF BORROWER, GUARANTOR AND LENDER HEREBY WAIVE THE RIGHT TO
COLLATERALLY ATTACK ANY JUDGMENT OR ACTION IN ANY OTHER FORUM.
[SIGNATURE PAGE FOLLOWS]
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LENDER:
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:__________________________________
Its:_____________________________
BORROWER:
PREFERRED EQUITIES CORPORATION,
a Nevada corporation
By:__________________________________
Its:_____________________________
Signed in the presence of:
GUARANTOR:
MEGO FINANCIAL CORP.,
a New York corporation
By:__________________________________
Its:_____________________________
Signed in the presence of:
_____________________________________
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STATE OF NEVADA )
) ss.
County of ___________________)
The foregoing instrument was acknowledged before me this ____ day
of February, 2000 by ______________ as _______________ of PREFERRED EQUITIES
CORPORATION, a Nevada corporation, on behalf of the corporation.
________________________________________
Notary Public
My Commission Expires:
_____________________________
STATE OF NEVADA )
) ss.
County of ___________________)
The foregoing instrument was acknowledged before me this ____ day
of February 2000, 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
February 2000, by ______________________, as _______________ of FINOVA CAPITAL
CORPORATION, a Delaware corporation, on behalf of the corporation.
________________________________________
Notary
My Commission expires:
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