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EXHIBIT 10.203
FOURTH AMENDMENT TO
INTERVAL RECEIVABLES LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO INTERVAL RECEIVABLES LOAN AND SECURITY
AGREEMENT (the "Fourth Amendment") is made as of the 22nd day of December, 1999
by and between Xxxxxx Financial, Inc., a Delaware corporation ("Lender") whose
address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and Preferred
Equities Corporation, a Nevada corporation ("Borrower") whose address is 0000
Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000.
WHEREAS, the parties entered into that certain Interval
Receivables Loan and Security Agreement dated March 28, 1996, as amended by that
certain Amendment to Interval Receivables Loan and Security Agreement dated
December 23, 1997, that certain Second Amendment to Interval Receivables Loan
and Security Agreement dated July 7, 1998, and that certain Amendment No.2 to
Interval Receivables Loan and Security Agreement dated March 1, 1999
(collectively and as amended hereby, the "Agreement"); and
WHEREAS, the parties desire to further amend the Agreement
pursuant to the terms and conditions as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties agree as follows:
1. The Recitals set forth above are true and correct and
incorporated herein by reference.
2. The term "Overlook Repayment" shall mean the receipt by Lender
of all outstanding amounts due Lender under that certain Interval Receivables
Loan and Security Agreement between Borrower and Lender and dated as of the 6th
day of August 1996, as modified by that certain First Modification to the
Interval Receivables Loan and Security Agreement dated as of the 7th day of July
1998, and that certain Acquisition and Renovation Loan Agreement between
Borrower and Lender and dated as of the 6th day of August 1996, as modified by
that certain First Modification to the Acquisition and Renovation Loan Agreement
dated as of the 7th day of July 1998, and any further amendments, modifications
and substitutions therefor.
3. Section 1.6 regarding Commitment Fee is hereby amended by
adding the following thereto:
An additional commitment fee in the amount of Eighty-Seven
Thousand Five Hundred Dollars and No/100 ($87,500.00) shall be deemed
fully earned and payable as of the date hereof, and shall be paid at the
time when such amount is withheld by Lender
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from disbursements of the Acquisition Commitment as follows: Forty-Three
Thousand Seven Hundred Fifty Dollars and No/100 ($43,750.00) of the
additional commitment fee shall be withheld from disbursement of the
first One Million Dollars and No/100 ($1,000,000.00) of the First
Supplemental Acquisition Commitment (as defined in the Acquisition and
Construction Loan Agreement) and the remaining Forty-Three Thousand
Seven Hundred Fifty Dollars and No/100 ($43,750.00) of the additional
commitment fee shall be withheld from disbursement of the second One
Million Dollars and No/100 ($1,000,000.00) of the First Supplemental
Acquisition Commitment.
4. The defined term "Acquisition and Construction Loan" shall
refer to the loan by Lender to Borrower evidenced in part by the Acquisition and
Construction Loan Agreement dated March 27, 1996, as amended by that certain
Amendment to Acquisition and Construction Loan Agreement dated December 23,
1997, that certain Second Amendment to Acquisition and Construction Loan
Agreement dated July 7, 1998, and that certain Third Amendment to Acquisition
and Construction Loan Agreement of even date herewith, which together provide an
Acquisition Loan Commitment in the maximum aggregate amount of $7,805,000.00,
secured by a mortgage on the Resort, and made by Lender to finance a portion of
the purchase price of the Resort (the "Acquisition Loan") and a Renovation Loan
Commitment in the maximum aggregate amount of $4,522,000.00 (of which a maximum
principal amount of $2,500,000.00 shall be outstanding at any time) secured by a
mortgage on the Resort and made by Lender to finance the upgrade, refurbishment,
furnishing and renovation of the Resort and the Units (the "Construction Loan").
The Acquisition and Construction Loan is further evidenced by, inter alia, an
Acquisition Promissory Note, Revolving Renovation Promissory Note, Mortgage and
Guaranty.
5. The definition of Availability shall be deleted in its
entirety and replaced with the following:
At all times during the Revolving Period, Availability shall be the
lesser of:
(a) $18,000,000.00 minus the sum of (i) Advances then outstanding, plus
(ii) the then outstanding principal balance of the Acquisition Loan, plus (iii)
the then outstanding principal balance of the Construction Loan; or
(b) the sum of (i) an amount equal to 75% of the principal balance of
Eligible Notes Receivable to be assigned to Lender in connection with any then
current Advance upon which the Purchaser thereunder has not theretofore made the
first three (3) monthly payments, plus (ii) an amount equal to 85% of the
principal balance of those Eligible Notes Receivable to be assigned to Lender in
connection with any then current Advance upon which the Purchaser thereunder has
theretofore made the first three (3) monthly payments in a timely manner;
provided, however, at all times during the portion of the Revolving Period that
follows Lender's receipt of the Overlook Repayment, if at all, Availability
shall be the lesser of:
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(a) $30,000,000.00 minus the sum of (i) Advances then outstanding, plus
(ii) the then outstanding principal balance of the Acquisition Loan, plus (iii)
the then outstanding principal balance of the Construction Loan; or
(b) an amount equal to 85% of the principal balance of Eligible Notes
Receivable to be assigned to Lender in connection with any then current Advance.
After expiration of the Revolving Period, Availability shall in all cases be
zero (0).
6. The definition of Loan shall be deleted in its entirety and
replaced with the following:
The Eighteen Million Dollars and No/100 ($18,000,000.00) credit
facility described in this Agreement, which upon satisfaction of certain
conditions precedent as set forth in the Agreement shall become a Thirty
Million Dollars and No/100 ($30,000,000.00) credit facility.
7. The definition of Maturity Date shall be deleted in its
entirety and replaced with "June 30, 2006."
8. The definition of Maximum Exposure shall be deleted in its
entirety and replaced with the following:
The amount by which (a) the lesser of (i) $18,000,000.00, or (ii)
the sum of (A) 75% of the outstanding principal balance of all Financed
Notes Receivable upon which the Purchaser thereunder has not theretofore
made the first three (3) monthly payments, plus (B) 85% of the
outstanding principal balance of all Financed Notes Receivable upon
which the Purchaser thereunder has theretofore made the first three (3)
monthly payments in a timely manner; exceeds (b) the aggregate
outstanding principal balances of the Acquisition and Construction Loan;
provided, however, that upon and after Lender's receipt of the Overlook
Repayment, if at all, Maximum Exposure shall be
the amount by which (a) the lesser of (i) $30,000,000.00, or (ii) 85% of
the outstanding principal balance of all Financed Notes Receivable;
exceeds (b) the aggregate outstanding principal balances of the
Acquisition and Construction Loan.
9. The defined term Note is hereby amended to add to the end
thereof the phrase "together with all amendments, modifications and
substitutions thereof."
10. The defined term Permitted Exceptions is hereby amended to
add the following to the end thereto:
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At such time as the Resort is expanded to include additional
property, the acquisition of which was financed under the Acquisition
and Construction Loan, Borrower and Lender shall execute an exhibit to
this Agreement setting forth the exceptions to title applicable to such
portion of the Resort.
11. For purposes of clarification, all references to the term
Revolving Period within the definition of Prepayment Premium shall be deemed to
refer to the amended definition of Revolving Period as set forth herein.
12. The defined term Resort is hereby amended to add the
following to the end thereto:
together with any timeshare vacation resort located on property,
the acquisition of which was financed under the Acquisition and
Construction Loan and for which Borrower and Lender shall execute an
exhibit to this Agreement setting forth the legal description thereof,
including all related common elements, limited common elements, parking
areas and other amenities, to be established by the Declaration.
13. The defined term Revolving Period is hereby amended to
provide that the Revolving Period is currently in effect as of the date of this
Amendment and shall end on June 30, 2001.
14. In connection with this Amendment, Borrower hereby certifies
that (a) all Borrower's representations, warranties, covenants and agreements
contained in the Agreement are true and correct and in full force and effect as
of the date hereof with the exception that (i) the Financial Statements
referenced in Section 4.3 of the Agreement are true, correct and complete as
reflected in the quarterly financial report dated May 31, 1999, and the monthly
financial report dated July 31, 1999, and (ii) there are no material adverse
changes to the information reflected in the disclosure of litigation matters
concerning PEC and dated October 6, 1999 and attached hereto as Exhibit "A", (b)
as of the date hereof there are no Events of Default thereunder, and (c) all of
the Loan Documents as defined therein are in full force and effect.
15. Except as modified by this Amendment, all other terms and
conditions of the Agreement and other Loan Documents shall remain in full force
and effect. Should Borrower currently be in default under the Agreement, which
default would not have existed if this Amendment were effective, such default is
hereby waived.
16. As consideration for, and as a mutual inducement to Lender
entering into this Amendment, Borrower hereby waives and releases any and all
setoffs, counterclaims and defenses it has of the date hereof with respect to
the Loans and performance by Lender under the Loan Documents, and hereby
acknowledges that Lender has fully performed all of its obligations and is not
in default under the Loan Documents. Execution of this Amendment shall not be
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deemed to constitute a waiver or release by Lender of any its rights or remedies
under the Loan Documents.
IN WITNESS whereof the parties have executed this Agreement as of
the date above.
PREFERRED EQUITIES CORPORATION, XXXXXX FINANCIAL, INC., a
a Nevada corporation Delaware corporation
By: /s/ XXX X. XXXXXX By:
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Xxx X. Xxxxxx
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Print Name Print Name
Its: Vice President Its:
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APPROVED BY GUARANTOR:
MEGO FINANCIAL CORP., a
New York corporation
By: /s/ XXX X. XXXXXX
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Xxx X. Xxxxxx
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Print Name
Its: Vice President
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deemed to constitute a waiver or release by Lender of any its rights or
remedies under the Loan Documents.
IN WITNESS whereof the parties have executed this Agreement as of
the date above.
PREFERRED EQUITIES CORPORATION, XXXXXX FINANCIAL, INC., a
a Nevada corporation Delaware corporation
By: /s/ XXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXX
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Xxx X. Xxxxxx Xxxxxx X. Xxxxxxx
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Print Name Print Name
Its: Vice President Its: Senior Vice President
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APPROVED BY GUARANTOR:
MEGO FINANCIAL CORP., a
New York corporation
By: /s/ XXX X. XXXXXX
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Xxx X. Xxxxxx
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Print Name
Its: Vice President
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EXHIBIT "A"
LITIGATION DISCLOSURE SCHEDULE
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