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EXHIBIT 10.100
[TFC TEXTRON LETTERHEAD]
September 23, 1996
Steamboat Suites, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
RE: AMENDMENT TO LOAN AND SECURITY AGREEMENT
Gentlemen:
Reference is made to that certain Inventory Loan in the original principal
amount of Five Million Dollars ($5,000,000.00) (the "Inventory Loan") from
Textron Financial Corporation (the "Lender") to Steamboat Suites, Inc. (the
"Borrower"), pursuant to that certain General Loan and Security Agreement dated
October 5, 1994, as amended on February 27, 1995 and November 30, 1995 (the
"Loan Agreement").
Each capitalized term used herein, but not otherwise defined herein, shall
have the meaning ascribed to such term in the Loan Agreement. Each of the
documents executed and delivered in connection with the Loan is collectively
referred to herein as the "Loan Documents".
The Borrower has requested the Lender, and Lender has agreed, to amend the
Loan Agreement as hereinafter provided in this letter agreement. Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed as follows:
1. Section 2.1(b) of the Loan Agreement, which presently provides Borrower
may not re-borrower previously paid Inventory Advances and Section 1.1 Inventory
Termination Date in which no Inventory Advance were to be made after certain
events including May 1, 1996 are hereby amended to provide that a one-time
Inventory Advance in the principal amount of $1,000,000.00 may be made by Lender
to Borrower in accordance with the terms and conditions of the Loan Agreement,
such Advance to occur not later than September 30, 1996. Upon the issuance of
such Advance, the principal balance outstanding under the Inventory Loan shall
be $3,008,713.82. The Inventory Deed of Trust and other
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Collateral maintain a Fair Market Value sufficient to continue to secure and
repay the Inventory Loan.
2. Each of the other Loan Documents is hereby amended so that (i) all
references in such Loan Document to the "Agreement" shall mean the Loan
Agreement, as amended to date and (ii) all references in such Loan document, to
that Loan Document or to any of the other Loan Documents shall mean that Loan
Document or such other Loan Documents as amended to date.
3. Borrower shall pay to Lender the reasonable fees, expenses and
disbursements of Lender preparing or reviewing this letter agreement or
otherwise representing Lender in connection with any matters relating to the
Loan Agreement or this letter agreement.
4. Borrower hereby ratifies and affirms in all respects each and every
representation, warranty, covenant, condition, term and agreement set forth in
the Loan Agreement, except as the Loan Agreement has been expressly amended by
this letter agreement. Borrower hereby confirms that the Loan Agreement and each
of the other Loan Documents are in full force and effect as of the date hereof.
5 The effective date of this letter agreement is September 23, 1996.
6. This letter agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original
without the production of any other counterpart and all of which taken together
shall constitute but one and the same instrument.
Kindly acknowledge your agreement with and acceptance of the terms and
conditions of this letter agreement by signing in the appropriate space below.
Very truly yours,
TEXTRON FINANCIAL CORPORATION
By: ___________________________________
Its: ___________________________________
EACH OF THE UNDERSIGNED HEREBY AGREES WITH
AND ACCEPTS THE TERMS AND CONDITIONS OF THE
LETTER AGREEMENT DATED AS OF SEPTEMBER 23,
1996:
SIGNATURES CONTINUED ON NEXT PAGE
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Witness: STEAMBOAT SUITES, INC.
By: ___________________________________
_______________________________ Its: ___________________________________
GUARANTORS:
PREFERRED EQUITIES CORPORATION
By: ___________________________________
_______________________________ Its: ___________________________________
MEGO FINANCIAL CORP.
By: ___________________________________
_______________________________ Its: ___________________________________
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[TFC TEXTRON LETTERHEAD]
November 11, 1996
Steamboat Suites, Inc. and
Preferred Equities Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
RE: MODIFICATION OF LOAN
Gentlemen:
This letter will serve as a commitment ("Commitment") from Textron Financial
Corporation ("TFC") to amend the terms and conditions of its existing loans (as
it may be amended, the "Loan") to Steamboat Suites Inc. ("Borrower"), a Colorado
corporation wholly owned by Preferred Equities Corporation ("Preferred"), a
Nevada corporation, which Loans are evidenced and secured by that certain (i)
Receivables Promissory Note, dated as of October 6, 1994 and amended on November
30, 1995 in the original principal amount of $15,000,000 from the Borrower to
TFC, (ii) Inventory Promissory Note dated as of October 6, 1994 in the original
principal amount of $5,000,000 from Borrower, (iii) General Loan and Security
Agreement between Borrower and TFC, dated as of October 6, 1994 (the "Loan
Agreement"), and (iv) certain other documents, instruments and agreements
including but not limited to certain amendment documents made as of November 23,
1994, January 20, 1995 and February 25, 1995 and November 30, 1995 and
amendement letters extending the Revolving Credit Period and providing for a one
time Inventory Advance (collectively, (i), (ii), (iii) and (iv) are referred to
as the "Security Documents"), upon the following terms and conditions:
I. LOAN TERM. The Receivables Commitment Period shall be extended for 18
months following the Amendment Closing Date (as defined below) and
Final Maturity Date and Term shall be extended for a 66 month period
following the Amendment Closing Date.
II. BORROWING BASE. The Receivables Borrowing Base shall be amended to
provide (i) 70% advance rate on Eligible Notes Receivable under which
no monthly payment has been made; (ii) 80% advance rate on Eligible
Note Receivable under which at least one (1) monthly payment has been
made; and (iii) 85% advance rate on Eligible Notes Receivable under
which at least six (6) monthly payments have been made. The maximum
principal loan amount shall
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Steamboat Suites, Inc. and
Preferred Equities Corporation
November 11, 1996
Page 2
remain at $15,000,000 and shall not be limited by loans made by TFC or
Dorfinco Corporation to Preferred Equities Corporation and Colorado
Land Grazing Corporation (PEC Loan").
III. INTEREST RATE. The Interest Rate on the unpaid balance of the Loan
shall be reduced from Prime plus 2.5% to Prime plus 2.0%.
IV. ELIGIBLE NOTE RECEIVABLE. The definition of Eligile Note Receivable
shall be modified to (a) allow up to 100% of the Pledged Notes
Receivables to have a term of 120 months or less payable in equal
monthly installments and (b) allow Pledged Notes Receivable with
interest rates of 0% when cash down payments with 50% or more has been
made and the remaining term is 24 months or less, payable in equal
monthly principal installments in the maximum amount of 20% of the
aggregate principal balance of all Pledged Notes Receivable.
V. COMMITMENT FEE. A Commitment Fee in an amount equal to 1% of the
difference between $22,500,000 available under the Loan and the PEC
Loan on a combined basis and the combined outstanding balance of the
Loan and the PEC Loan (approximately $75,000) shall be earned upon
Borrower's acceptance of this Commitment ("Commitment Fee"). The
Commitment Fee shall be payable on the Amendment Closing Date.
VI. AMENDMENT CLOSING DATE. The Amendment shall close on such date as
would be mutually satisfactory to the Borrower and TFC but in no event
later than the Expiration Date (defined below) of this commitment
issued by TFC.
VII. OTHER AMENDMENT REQUIREMENTS. Borrower shall deliver a legal opinion,
loan amendment documents and such other documents or information as
TFC shall request in connection with this amendment and the Loan
including, but not limited to acknowledgment of Guarantor. The Loans
shall be current and in good standing.
VIII. EXPENSE. Borrower shall pay all costs associated with this Commitment
and the amendment of the Loans, including without limitation, attorney
fees, title, recording, search fees and all travel and out-of-pocket
expenses of TFC. With respect to attorneys fees, if requested by
Borrower, TFC shall use in-house counsel in performing the legal work
in closing the Amendment, with delegation of such tasks as in-house
counsel shall elect to outside local counsel of its choice. Borrower
shall pay a fixed legal fee in the amount of $2,500 ("Fixed Fee") for
all in-house counsel fees of TFC and TFC shall assume liability for
all legal fees in excess of the Fixed Fee, subject to the condition
that no unforeseen or unusual issues arise that materially affect the
assumption upon which the Fixed Fee was based. If such assumptions are
not met or Borrower does not request TFC's use in-house counsel then
Borrower shall assume liability for all of TFC's outside legal fees.
IX. DURATION OF COMMITMENT. This commitment, if accepted by Borrower,
shall expire sixty (60) days from the Acceptance Date hereof
("Expiration Date"). In the event that
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the Amendment does not close before the Expiration Date of the
Commitment or any extension thereof, consented to by TFC in writing,
TFC would have no further obligation thereunder and the Commitment Fee
shall be due and payable.
X. ACCEPTANCE OF COMMITMENT. This Commitment will expire unless
Borrower's written acceptance below is received by TFC on or before
November 20, 1996.
Kindly acknowledge your acceptance of the terms and provisions of this
commitment, issued in duplicate, by having one copy hereof signed and returned
to TFC on or before November 20, 1996.
Very truly yours,
TEXTRON FINANCIAL CORPORATION
By:
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President
Recreational Receivable Division
ACCEPTED:
STEAMBOAT SUITES, INC.
By:
--------------------------------
Title:
--------------------------------
Acceptance Date:
--------------------------------------
PREFERRED EQUITIES CORPORATION
By:
--------------------------------
Title:
--------------------------------
Acceptance Date:
--------------------------------------
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SECOND AMENDMENT TO GENERAL LOAN AND SECURITY AGREEMENT
THIS Second Amendment to General Loan and Security Agreement (the
"Amendment"), made as of 30th day of November, 1995, by and between STEAMBOAT
SUITES, INC., a Colorado Corporation, having an address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Debtor"); and
TEXTRON FINANCIAL CORPORATION, a Delaware Corporation, having an address
of ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(hereinafter referred to as "Lender")
RECITALS
This Amendment modifies and amends that certain General Loan and Security
Agreement dated as of October 5, 1994 as modified by First Amendment to General
Loan and Security Agreement dated as of February 27, 1995 (collectively the
"Existing GLSA", the Existing GLSA, as amended hereby and as further amended
from time to time is referred to herein as the "Agreement")
Debtor has requested that Lender modify certain terms of the Loan upon the
terms and provisions hereinafter set forth in order to increase the maximum
Receivables Borrowing Base and certain eligibility requirements for Eligible
Notes Receivable.
NOW THEREFORE, in consideration of the foregoing recitals, and in further
consideration of the mutual covenants contained herein, and intending to be
legally bound hereby, the parties hereto mutually agree as follows:
I. INTERPRETATION OF AMENDMENT
A. Terms Defined
Capitalized terms used in this Amendment and not defined herein shall have
the respective meanings specified in the Existing GLSA, as amended hereby. As
used in this Amendment, the following terms have the respective meanings
specified below:
Agreement - as defined in the Recitals hereto.
Amendment or this Amendment - as defined in the Recitals hereto.
B. Directly or Indirectly
Where any provision in the Amendment refers to an action taken by any
Person or which such Person is prohibited from taking, such provisions shall be
applicable whether such action is taken directly or indirectly by such Person.
C. Headings
Section headings have been inserted in this Amendment as a matter of
convenience of reference only; such section headings are not part of this
Amendment and shall not be used in the interpretation of this Amendment.
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II. AMENDMENTS
A. Definitions.
1. The definitions set forth below are hereby added to Section 1.1
of the Existing GLSA so as to preserve the alphabetical ordering of the
definitions set forth therein:
"Second GLSA Amendment Effective Date - means November 30, 1995."
"Second GLSA Amendment means that certain amendment of this
Agreement to provide for the revised "receivable facility" as
contemplated therein."
2. The parties hereto mutually agree that the definition of
"ELIGIBLE NOTE RECEIVABLE" under Section 1.1 of the Agreement shall be modified
to delete Subsection (c) in its entirety, and in lieu thereof the following
provision is inserted:
"(c) the unpaid balance of such Pledged Note Receivable shall be due
and payable not later than 84 months from the date thereof, provided that,
if any Pledged Note Receivable has a remaining term of more than 84 months
but less than or equal to 120 months and would otherwise qualify as an
Eligible Note Receivable, such Pledged Note Receivable shall be deemed to
be an Eligible Note Receivable for so long as the aggregate outstanding
principal balances of all Eligible Notes Receivable having remaining terms
of more than 84 months but less than or equal to 120 months (determined
immediately after giving effect to such Pledged Note Receivable having
become an Eligible Note Receivable) shall not exceed 50% of the aggregate
principal balance of all Eligible Notes Receivable outstanding at the time
of such determination; to the extent that, at any time, the aforesaid 50%
test shall be violated, a quantity of Pledged Notes Receivable then having
terms of more than 84 months but less than or equal to 120 months and then
being treated as Eligible Notes Receivable shall be treated as no longer
being Eligible Notes Receivable to the extent necessary to cause the
aforesaid 50% test to then be satisfied;"
3. The parties hereto mutually agree that definition of "Receivable
Borrowing Base" is hereby deleted in its entirety, and in lieu thereof, the
following provision is inserted:
"RECEIVABLES BORROWING BASE - means, at any time, the lesser of
(a) $15,000,000 minus (i) the principal amount of the Inventory Loan
outstanding at such time, minus (ii) the principal amount outstanding at
such time of the $7,500,000 loan facility extended to Preferred Equities
by Dorfinco, and
(b) the sum, without duplication, of (i) 70% of the aggregate of the
unpaid principal balances of all Eligible Notes Receivable outstanding at
such time plus (ii) 80% of the aggregate of the unpaid principal balances
of all Eligible Notes Receivable in respect of which at least one
scheduled monthly installment payment shall have been made."
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4. The parties hereto mutually agree that the definition of "Receivables
Note" is hereby deleted in its entirety, and in lieu thereof the following
provision is inserted:
"RECEIVABLES NOTE - means that certain promissory note effective as of
October 6, 1994, amended and restated substantially in the form of Exhibit
B-1 to this Agreement and the Second GLSA Amendment. Receivable Advances
up to $7,500,000 were not made in respect of such promissory note until
the First GLSA Amendment became effective and Receivable Advances with
respect to the Receivables Borrowing Base, as amended by this Amendment
shall be made in respect of such amended and restated promissory note upon
the Second GLSA Amendment Effective Date."
III. REAFFIRMATIONS
1. Nothing contained herein shall be construed in any manner so as to
affect the validity or prior time lien of any security interest held by Lender,
its successors and assigns, in any Collateral described in the Agreement except
that the Inventory Deed of Trust shall be limited to a security interest of up
to $7,500,000 for the Inventory Note and Receivables Note. Debtor acknowledges
and agrees that the Notes, Agreement, Inventory Deed of Trust, Assignment of
Pledged Notes Receivables, Pledged Note Receivables Deeds of Trust and Pledged
Contracts, Guaranty Agreement, Subordination Agreements, Agency Agreement and
all other Security Documents (as modified herein) shall remain in full force and
effect, unimpaired by this Amendment and that they are valid, binding and
enforceable documents, duly executed and delivered by Debtor, and that Debtor
has no offsets or defenses to the enforcement of the terms and provisions
contained therein.
2. Except as provided in Schedule 1 hereto, Debtor, and as applicable, the
Guarantors, hereby reaffirm, restate and incorporate by this reference all of
their respective representations, warranties and covenants as updated hereunder
made in the Agreement (including, as amended hereby), as if the same were made
as of this date and with reference to the Agreement as amended hereby. In
addition, Debtor (and, as applicable, the Guarantors) represents and warrants as
follows:
a. This Amendment (and the Receivables Note as amended and restated)
has been duly authorized by Debtor and is the legal, valid and binding
obligation of Debtor, enforceable against it in accordance with its terms
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws affecting creditor's rights and
remedies generally and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and, as
applicable with respect to the Guarantors, this Amendment is the legal, valid
and binding obligation of the Guarantors, enforceable against them in accordance
with its terms subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws affecting creditor's
rights and remedies generally and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
b. The execution, delivery and performance of this Amendment and the
documents, instruments and materials to be delivered in connection herewith and
the transactions contemplated hereby do not and will not result in any breach
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon the Collateral,
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any provision of law, or any indenture, agreement or instrument to which Debtor
or any Guarantor is a party or by which the Debtor or Guarantors may be bound or
affected except for liens in favor of Lender and the Pledged Notes Receivable
Deeds of Trust.
c. There are no Defaults or Events of Default pursuant to the
Security Documents; Lender has fully performed its obligations under the
Security Documents which Lender is required to perform as of the date hereof,
and neither Debtor nor the Guarantors have any defense, set-offs, claims,
counterclaims or recoupments against Lender or with respect to the Loan.
3. Debtor and the Guarantor hereby reaffirm their respective obligations,
agreements and undertakings as set forth in the Security Documents, and
acknowledge that the Obligations, or with respect to the Guarantors, the
guaranteed Indebtedness defined in the Guaranty and as amended herein, are the
valid, legally binding and enforceable obligations of Debtor, and the
Guarantors, respectively.
IV. CLOSING CONDITIONS AND ADDITIONAL TERMS
1. The obligation of Lender to enter into this Amendment and, in addition
to all of the other conditions precedent set forth in the Agreement or the other
Loan Documents, to fund any further Advance pursuant to the terms hereof, shall
be subject to the satisfaction of each of the following conditions precedent by
no later than February 29, 1996.
a. Debtor shall pay Lender Two Thousand Five Hundred Dollars
($2,500) as payment in full for attorney's fees and costs incurred by Lender in
connection with the preparation of this Amendment and related documentation.
b. Lender shall have received from Debtor the original executed
Receivables Note as amended and restated, and a fully executed original or
executed counterpart originals of this Amendment. Upon receipt of such
Receivables Note, as amended and restated, the Receivables Note dated October 6,
1994 shall be marked superceded and returned to Debtor.
c. Lender shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., counsel for
the Debtor and counsel for Guarantors, or other counsel reasonably acceptable to
Lender, closing opinions in form and substance reasonably acceptable to Lender,
dated as of the Amendment closing date.
d. Except for information contained in certificates provided
pursuant to Article IV(1)(g) and (h) hereof or any schedule to this Amendment,
the representations and warranties contained in the Agreement and in this
Amendment, and in the certifications and closing documents delivered in
connection herewith, shall be true and correct in all material respects, and all
covenants and agreements to have been complied with and performed by Debtor (or
Guarantor), shall have been fully complied with and performed to the
satisfaction of Lender.
e. Neither Debtor nor Guarantors shall have taken any action or
permitted any condition to exist which would have been prohibited by any
provision of the Security Documents.
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f. No Default or Event of Default shall exist immediately prior to
the closing hereof, or after giving effect to such closing, or immediately after
the making of any Advance requested in connection with such closing.
g. Lender shall have received a certificate or certificates in form
and substance satisfactory to it, dated as of the Amendment closing date and
signed by the president or other authorized officer of the Debtor, certifying
that the conditions specified in this Amendment have been fulfilled, and
"bringing down" the representations and warranties contained in the Agreement.
h. Debtor shall deliver to Lender, and Lender shall have approved,
by no later than the Amendment closing date:
i. A certificate of current good standing for Debtor, together
with copies of any amendments to the certificate of incorporation or
bylaws of Debtor since February 27, 1995, certified to be true, correct
and complete by the Debtor, its secretary or assistant secretary, or the
Colorado Secretary of State;
ii. Evidence satisfactory to Lender that all taxes and
assessments, including without limitation, those specified in Section 7.1
(a) of the Agreement, owed by or for which Debtor is responsible for
collection have been paid or will be paid prior to delinquency;
iii. A certificate of the secretary or assistant secretary of
Debtor certifying the adoption by the Board of Directors thereof of a
resolution authorizing specified officers of Debtor to enter into and
execute this Amendment, the Receivables Note and all other documents,
certificates and instruments to be executed and delivered in connection
with the Amendment closing, and to consummate the transactions
contemplated hereunder;
iv. A certificate of the secretary or assistant secretary of
Debtor certifying the incumbency of, and verifying the authenticity of the
signatures of, the officers of Debtor authorized to sign this Amendment,
the Receivables Note and the other documents, instruments and materials to
be executed and delivered in connection herewith;
v. A certificate of the secretary or assistant secretary of
each Guarantor certifying the adoption by the Board of Directors thereof
of a resolution authorizing specified officers of the Guarantor to enter
into and execute this Amendment and all other documents, certificates and
instruments to be executed and delivered in connection with the Amendment
closing, and to consummate the transactions contemplated hereunder; and
vi. A certificate of the secretary or assistant secretary of
each Guarantor certifying the incumbency of, and verifying the
authenticity of signatures of, the officers of each Guarantor authorized
to sign this Amendment and the other documents, instruments and materials
to be executed and delivered in connection herewith;
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i. All actions taken in connection with the execution or delivery of
this Amendment, and all documents, certificates, instruments and materials
relating hereto, shall be reasonably satisfactory to Lender and its counsel.
Lender and its counsel shall have received copies of such documents and papers
as Lender or such counsel may reasonably request in connection herewith all in
form and substance satisfactory to Lender and its counsel.
j. Debtor shall have paid all fees and expenses required to be paid
prior to or at the closing pursuant to this Amendment.
V. GUARANTORS' OBLIGATIONS
1. Each Guarantor:
a. has reviewed this Amendment with counsel of it's choice, and
accepts and consents to the terms of this Amendment and the transactions
provided for herein;
b. acknowledges and agrees that it receives material benefit and
valuable consideration as a result of the transactions provided for herein or
contemplated hereunder;
c. ratifies and reaffirms the terms of its Guaranty Agreement, and
all of the terms provisions, agreements, conditions and undertakings contained
in the Guaranty Agreement or any of the Security Documents (as applicable to the
Guarantor), all of which remain unmodified, except as modified herein and in
full force and effect;
d. acknowledges and confirms (i) its continuing obligations under
the Guaranty Agreement and agrees to be bound by the terms thereof, and (ii)
that it has been since October 5, 1994 and remains liable with respect to the
guaranteed Indebtedness as defined and provided in its Guaranty Agreement;
e. acknowledges and agrees that the guaranteed Indebtedness
encompasses and apply to all Advances, including Advances from and after the
Amendment closing date, and to all Indebtedness, including Indebtedness arising
pursuant to this Amendment;
f. is fully aware of the financial and other conditions of the
Debtor and is executing and delivering this Amendment based solely upon its own
independent investigation and not upon any representation or statement of
Lender;
g. except for information contained in certificates provided
pursuant to V(1)(i) hereof reaffirms, restates and incorporates by this
reference all of the representations, warranties and covenants made in its
Guaranty Agreement as if the same were made as of this date;
h. acknowledges that its agreements, consents and acknowledgments
contained herein, and the provisions of its Guaranty Agreement (which are
reaffirmed by Guarantor), are a material inducement to Lender to enter into this
Amendment, and that, but for the Guaranty Agreement, and the Guarantor's
agreements as set forth herein, Lender would decline to enter into this
Amendment; and
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i. shall deliver to Lender a certificate or certificates in form and
substance satisfactory to it, dated as of the Amendment closing date and signed
by the president or other authorized officer of the Guarantor, certifying that
the conditions specified in this Amendment have been fulfilled, and "bringing
down" the representations and warranties contained in the Guaranty Agreement.
VI. MISCELLANEOUS
a. This Amendment is entered into for the benefit of the parties
hereto, and is binding on the respective heirs, successors or assigns; provided
that Debtor may not transfer or assign any of its rights or obligations under
this Amendment without the prior written consent of Lender. Guarantors are a
party to this Amendment solely for the purposes of affirming their respective
obligations in accordance with Article V hereof.
b. This Amendment may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Amendment shall become effective upon Lender's receipt
of one or more counterparts hereof timely executed by Debtor and the Guarantors.
This Amendment may not be amended or modified, and no term or provision hereof
may be waived, except by written instrument signed by all of the parties hereto.
c. Section headings have been inserted in this Amendment as a matter
of convenience of reference only; such headings are not part of this Amendment
and shall not be used in the interpretation of this Amendment.
d. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF DEBTOR, THE GUARANTORS AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY ANY RIGHT,
POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE OTHER
SECURITY DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, WHETHER
SOUNDING IN TORT OR CONTRACT OF OTHERWISE, OR WITH RESPECT TO ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY; AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF DEBTOR, THE GUARANTORS AND LENDER
FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL
CANNOT OR HAS NOT BEEN WAIVED UNLESS SUCH FAILURE TO CONSOLIDATE WOULD RESULT IN
INABILITY TO ENFORCE A CLAIM. FURTHER, DEBTOR AND THE GUARANTORS HEREBY CERTIFY
THAT NO REPRESENTATIVE OR AGENT OF LENDER, NOR LENDER'S COUNSEL, HAS REPRESENTED
EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
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PROVISION. DEBTOR AND THE GUARANTORS ACKNOWLEDGE THAT THE PROVISIONS OF THIS
SECTION ARE A MATERIAL INDUCEMENT TO LENDER'S ACCEPTANCE OF THIS AMENDMENT AND
THE OTHER SECURITY DOCUMENTS.
e. This Amendment and all other Security Documents shall be governed
by the laws of the State of Colorado in all respects, including matters of
construction, performance and enforcement.
f. Whenever possible, the terms of this Amendment and the terms of
the Agreement and all prior amendments shall be read together, but to the extent
of any irreconcilable conflict, the terms of this Amendment shall govern.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have set their hands and seals the day and year first above written.
ATTEST: DEBTOR:
STEAMBOAT SUITES, INC.
_____________________________ By:_________________________________
LENDER:
TEXTRON FINANCIAL
CORPORATION
_____________________________ By:_________________________________
on behalf of Lender
ACKNOWLEDGED AND AGREED:
GUARANTOR:
PREFERRED EQUITIES
CORPORATION
_____________________________ By:_________________________________
GUARANTOR:
MEGO FINANCIAL CORP.
_____________________________ By:_________________________________
The address of the within named Lender is:
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of STEAMBOAT SUITES, INC., being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of PREFERRED EQUITIES CORPORATION, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
13
17
CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of MEGO FINANCIAL CORPORATION, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of TEXTRON FINANCIAL CORPORATION, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
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THIRD AMENDMENT TO GENERAL LOAN AND SECURITY AGREEMENT
THIS Third Amendment to General Loan and Security Agreement (the
"Amendment"), made as of 29th day of November, 1996, by and between STEAMBOAT
SUITES, INC., a Colorado Corporation, having an address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "Debtor"); and
TEXTRON FINANCIAL CORPORATION, a Delaware Corporation, having an address
of ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(hereinafter referred to as "Lender")
RECITALS
This Amendment modifies and amends that certain General Loan and Security
Agreement dated as of October 5, 1994 as modified by First Amendment to General
Loan and Security Agreement dated as of February 27, 1995, ("First Amendment")
and a Second Amendment to General Loan and Security Agreement dated as of
November 30, 1995 (collectively the "Existing GLSA", the Existing GLSA, as
amended hereby and as further amended from time to time is referred to herein as
the "Agreement")
Debtor has requested that Lender modify certain terms of the Loan upon the
terms and provisions hereinafter set forth in order to modify the Interest Rate,
the Receivables Borrowing Base and certain eligibility requirements for Eligible
Notes Receivable and to extend the Receivables Commitment Period and Receivables
Maturity Date as well as other certain provisions.
NOW THEREFORE, in consideration of the foregoing recitals, and in further
consideration of the mutual covenants contained herein, and intending to be
legally bound hereby, the parties hereto mutually agree as follows:
I. INTERPRETATION OF AMENDMENT
A. Terms Defined
Capitalized terms used in this Amendment and not defined herein shall have
the respective meanings specified in the Existing GLSA, as amended hereby. As
used in this Amendment, the following terms have the respective meanings
specified below:
Agreement - as defined in the Recitals hereto.
Amendment or this Amendment - as defined in the Recitals hereto.
B. Directly or Indirectly
Where any provision in the Amendment refers to an action taken by any
Person or which such Person is prohibited from taking, such provisions shall be
applicable whether such action is taken directly or indirectly by such Person.
C. Headings
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Section headings have been inserted in this Amendment as a matter of
convenience of reference only; such section headings are not part of this
Amendment and shall not be used in the interpretation of this Amendment.
II. AMENDMENTS
A. Definitions.
1. The definitions set forth below are hereby added to Section 1.1
of the Existing GLSA so as to preserve the alphabetical ordering of the
definitions set forth therein:
"Third GLSA Amendment Effective Date - means November 29, 1996."
"Third GLSA Amendment means that certain amendment of this Agreement
dated as of November 29, 1996.
2. The parties hereto mutually agree that the definition of
"ELIGIBLE NOTE RECEIVABLE" under Section 1.1 of the Agreement shall be modified
to delete Subsection (c) in its entirety, and in lieu thereof the following
provision is inserted:
"(c) the unpaid balance of such Pledged Note Receivable shall be due
and payable not later than 120 months from the date thereof,"
3. The parties hereto mutually agree that the definition of "NOTE
RECEIVABLE PORTFOLIO AVERAGE RATE OF INTEREST" under Section 1.1 of the
Agreement shall be modified to Subsection (A) in its entirety, and in lieu
thereof the following provision is inserted:
"(A) the aggregate unpaid principal balance of such 0% interest rate
Pledged Notes Receivable shall not exceed 20% of the aggregate principal
balance of all Eligible Notes Receivable outstanding at the time of such
determination; to the extent that such 20% threshold shall be exceeded,
the 0% interest rate Pledged Notes Receivable contributing in whole or in
part to such excess shall be included in the determination of the Note
Receivable Portfolio Average Rate of Interest."
4. The parties hereto mutually agree that the definition of
"Interest Rate" is hereby amended by inserting the following provision after the
first sentence of the definition:
"... With respect to each calendar month, commencing the Third GLSA
Amendment Effective Date, Interest Rate means per annum rate of interest
equal to the rates of: (i) 8.75% or (ii) the sum of (A) 2.0% plus (B) the
Prime Rate then shall be in effect for such month."
5. The parties hereto mutually agree that the definition of
"Receivables Maturity Date " is hereby deleted in its entirety and is lieu
thereof, the following provision is inserted:
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"RECEIVABLES MATURITY DATE" means June 1, 2002.
6. The parties hereto mutually agree that the definition of
"Receivable Termination Date is hereby modified by deleting subsection (d) and
inserting the following provision:
"...(d) May 30, 1998"
7. The parties hereto mutually agree that the definition of
"Receivables Borrowing Base" is hereby deleted in its entirety, and in lieu
thereof, the following provision is inserted:
"RECEIVABLES BORROWING BASE - means, at any time, the lesser of
(a) $15,000,000 minus the principal amount of the Inventory Loan
outstanding at such time; or
(b) the sum, without duplication, of (i) 70% of the aggregate of the
unpaid principal balances of all Eligible Notes Receivable outstanding at
such time plus (ii) 80% of the aggregate of the unpaid principal balances
of all Eligible Notes Receivable in respect of which at least one (1)
scheduled monthly installment payment shall have been made plus (iii) 85%
of the aggregate of the unpaid principal balances of all Eligible Notes
Receivable in respect of which at least six (6) scheduled monthly
installments payments shall have been made."
8. The parties mutually agree that the reference in Exhibit B to the
First Amendment Form of Request for Receivables Advise shall be deleted in its
entirety and the following provision shall be inserted: "Re: General Loan and
Security Agreement (as amended from time to time the "GSLA") between Textron
Financial Corporation ("Lender") and Steamboat Suites Inc. ("Debtor") dated as
of October 5, 1994 - $15,000,000 loan facility (the "Loan").
9. The parties hereto mutually agree that the first Whereas
paragraph of Exhibit C - Assignment of Note Receivable and Pledged Note
Receivable Deeds of Trust shall be deleted in its entirety and the following
provision shall be inserted:
"Whereas, the Debtor and Lender have entered into a General Loan and
Security Agreement dated as of October 5, 1994 and a First Amendment to General
Loan and Security Agreement dated February 27, 1995 and a Second Amendment to
General Loan and Security Agreement dated November 30, 1995 and a Third
Amendment to General Loan and Security Agreement dated November 29, 1996
(collectively the "Agreement" as may be further amended from time to time)
pursuant to which the Lender has agreed to lend upon the terms and conditions
set forth in the Agreement up to $15,000,000 (The "Loan") to the Debtor to be
evidenced by the Notes (as such term is defined in the Agreement) and secured by
a Lien granted by the Debtor to the Lender on certain Pledge Note Receivable and
Pledged Notes Receivable Deeds of Trust related thereto as well as other
Collateral of the Debtor (as such terms are defined in the Agreement;"
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III. REAFFIRMATIONS
1. Nothing contained herein shall be construed in any manner so as to
affect the validity or prior time lien of any security interest held by Lender,
its successors and assigns, in any Collateral described in the Agreement except
that the Inventory Deed of Trust shall be limited to a security interest of up
to $7,500,000 for the Inventory Note and Receivables Note. Debtor acknowledges
and agrees that the Notes, Agreement, Inventory Deed of Trust, assignment of
Pledged Notes Receivable, Pledged Notes Receivable Deeds of Trust and Pledged
Contracts, Guaranty Agreement, Subordination Agreements, Agency Agreement and
all other Security Documents (as modified herein) shall remain in full force and
effect, unimpaired by this Amendment and that they are valid, binding and
enforceable documents, duly executed and delivered by Debtor, and that Debtor
has no offsets or defenses to the enforcement of the terms and provisions
contained therein.
2. Except as provided in Schedule 1 hereto, Debtor, and as applicable, the
Guarantors, hereby reaffirm, restate and incorporate by this reference all of
their respective representations, warranties and covenants as updated hereunder
made in the Agreement (including, as amended hereby), as if the same were made
as of this date and with reference to the Agreement as amended hereby. In
addition, Debtor (and, as applicable, the Guarantors) represents and warrants as
follows:
a. This Amendment has been duly authorized by Debtor and is the
legal, valid and binding obligation of Debtor, enforceable against it in
accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws affecting
creditor's rights and remedies generally and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and, as applicable with respect to the Guarantors, this
Amendment is the legal, valid and binding obligation of the Guarantors,
enforceable against them in accordance with its terms subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws affecting creditor's rights and remedies generally and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
b. The execution, delivery and performance of this Amendment and the
documents, instruments and materials to be delivered in connection herewith and
the transactions contemplated hereby do not and will not result in any breach
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon the Collateral, under any provision of law, or any
indenture, agreement or instrument to which Debtor or any Guarantor is a party
or by which the Debtor or Guarantors may be bound or affected except for liens
in favor of Lender and the Pledged Notes Receivable Deeds of Trust.
c. There are no Defaults or Events of Default pursuant to the
Security Documents; Lender has fully performed its obligations under the
Security Documents which Lender is required to perform as of the date hereof,
and neither Debtor nor the Guarantors have any defense, set-offs, claims,
counterclaims or recoupments against Lender or with respect to the Loan.
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3. Debtor and the Guarantor hereby reaffirm their respective obligations,
agreements and undertakings as set forth in the Security Documents, and
acknowledge that the Obligations, or with respect to the Guarantors, the
guaranteed Indebtedness defined in the Guaranty and as amended herein, are the
valid, legally binding and enforceable obligations of Debtor, and the
Guarantors, respectively.
IV. CLOSING CONDITIONS AND ADDITIONAL TERMS
1. The obligation of Lender to enter into this Amendment and, in addition
to all of the other conditions precedent set forth in the Agreement or the other
Loan Documents, to fund any further Advance pursuant to the terms hereof, shall
be subject to the satisfaction of each of the following conditions precedent by
no later than December 5, 1996.
a. Debtor shall pay Lender Two Thousand Five Hundred Dollars
($2,500) as payment in full for attorney's fees and costs incurred by Lender in
connection with the preparation of this Amendment and related documentation.
b. Lender shall have received from Debtor fully executed original or
executed counterpart originals of this Amendment.
c. Lender shall have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., counsel for
the Debtor and counsel for Guarantors, or other counsel reasonably acceptable to
Lender, closing opinions in form and substance reasonably acceptable to Lender,
dated as of the Third GLSA Amendment Effective Date.
d. Except for information contained in certificates provided
pursuant to Article IV(1)(g) and (h) hereof or any schedule to this Amendment,
the representations and warranties contained in the Agreement and in this
Amendment, and in the certifications and closing documents delivered in
connection herewith, shall be true and correct in all material respects, and all
covenants and agreements to have been complied with and performed by Debtor (or
Guarantor), shall have been fully complied with and performed to the
satisfaction of Lender.
e. Neither Debtor nor Guarantors shall have taken any action or
permitted any condition to exist which would have been prohibited by any
provision of the Security Documents.
f. No Default or Event of Default shall exist immediately prior to
the closing hereof, or after giving effect to such closing, or immediately after
the making of any Advance requested in connection with such closing.
g. Lender shall have received a certificate or certificates in form
and substance satisfactory to it, dated as of the Amendment Effective Date and
signed by the president or other authorized officer of the Debtor, certifying
that the conditions specified in this Amendment have been fulfilled, and
"bringing down" the representations and warranties contained in the Agreement.
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h. Debtor shall deliver to Lender, and Lender shall have approved,
by no later than December 5, 1996:
i. A certificate of current good standing for Debtor, together
with copies of any amendments to the certificate of incorporation or
bylaws of Debtor since November 30, 1995, certified to be true, correct
and complete by the Debtor, its secretary or assistant secretary, or the
Colorado Secretary of State;
ii. Evidence satisfactory to Lender that all taxes and
assessments, including without limitation, those specified in Section 7.1
(a) of the Agreement, owed by or for which Debtor is responsible for
collection have been paid or will be paid prior to delinquency;
iii. A certificate of the secretary or assistant secretary of
Debtor certifying the adoption by the Board of Directors thereof of a
resolution authorizing specified officers of Debtor to enter into and
execute this Amendment and all other documents, certificates and
instruments to be executed and delivered in connection with the Amendment
closing, and to consummate the transactions contemplated hereunder;
iv. A certificate of the secretary or assistant secretary of
Debtor certifying the incumbency of, and verifying the authenticity of the
signatures of, the officers of Debtor authorized to sign this Amendment
and the other documents, instruments and materials to be executed and
delivered in connection herewith;
v. A certificate of the secretary or assistant secretary of
each Guarantor certifying the adoption by the Board of Directors thereof
of a resolution authorizing specified officers of the Guarantor to enter
into and execute this Amendment and all other documents, certificates and
instruments to be executed and delivered in connection with the Amendment
closing, and to consummate the transactions contemplated hereunder; and
vi. A certificate of the secretary or assistant secretary of
each Guarantor certifying the incumbency of, and verifying the
authenticity of signatures of, the officers of each Guarantor authorized
to sign this Amendment and the other documents, instruments and materials
to be executed and delivered in connection herewith;
i. All actions taken in connection with the execution or delivery of
this Amendment, and all documents, certificates, instruments and materials
relating hereto, shall be reasonably satisfactory to Lender and its counsel.
Lender and its counsel shall have received copies of such documents and papers
as Lender or such counsel may reasonably request in connection herewith all in
form and substance satisfactory to Lender and its counsel.
j. Debtor shall have paid all fees and expenses required to be paid
prior to or at the closing pursuant to this Amendment.
V. GUARANTORS' OBLIGATIONS
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1. Each Guarantor:
a. has reviewed this Amendment with counsel of it's choice, and
accepts and consents to the terms of this Amendment and the transactions
provided for herein;
b. acknowledges and agrees that it receives material benefit and
valuable consideration as a result of the transactions provided for herein or
contemplated hereunder;
c. ratifies and reaffirms the terms of its Guaranty Agreement, and
all of the terms provisions, agreements, conditions and undertakings contained
in the Guaranty Agreement or any of the Security Documents (as applicable to the
Guarantor), all of which remain unmodified, except as modified herein and in
full force and effect;
d. acknowledges and confirms (i) its continuing obligations under
the Guaranty Agreement and agrees to be bound by the terms thereof, and (ii)
that it has been since October 5, 1994 and remains liable with respect to the
guaranteed Indebtedness as defined and provided in its Guaranty Agreement;
e. acknowledges and agrees that the guaranteed Indebtedness
encompasses and apply to all Advances, including Advances from and after the
Amendment closing date, and to all Indebtedness, including Indebtedness arising
pursuant to this Amendment;
f. is fully aware of the financial and other conditions of the
Debtor and is executing and delivering this Amendment based solely upon its own
independent investigation and not upon any representation or statement of
Lender;
g. except for information contained in certificates provided
pursuant to V(1)(i) hereof reaffirms, restates and incorporates by this
reference all of the representations, warranties and covenants made in its
Guaranty Agreement as if the same were made as of this date;
h. acknowledges that its agreements, consents and acknowledgments
contained herein, and the provisions of its Guaranty Agreement (which are
reaffirmed by Guarantor), are a material inducement to Lender to enter into this
Amendment, and that, but for the Guaranty Agreement, and the Guarantor's
agreements as set forth herein, Lender would decline to enter into this
Amendment; and
i. shall deliver to Lender a certificate or certificates in form and
substance satisfactory to it, dated as of the Amendment Effective Date and
signed by the president or other authorized officer of the Guarantor, certifying
that the conditions specified in this Amendment have been fulfilled, and
"bringing down" the representations and warranties contained in the Guaranty
Agreement.
VI. MISCELLANEOUS
a. This Amendment is entered into for the benefit of the parties
hereto, and is binding on the respective heirs, successors or assigns; provided
that Debtor may not transfer or assign any of its rights or obligations under
this Amendment without the prior written consent of
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Lender. Guarantors are a party to this Amendment solely for the purposes of
affirming their respective obligations in accordance with Article V hereof.
b. This Amendment may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. This Amendment shall become effective upon Lender's receipt
of one or more counterparts hereof timely executed by Debtor and the Guarantors.
This Amendment may not be amended or modified, and no term or provision hereof
may be waived, except by written instrument signed by all of the parties hereto.
c. Section headings have been inserted in this Amendment as a matter
of convenience of reference only; such headings are not part of this Amendment
and shall not be used in the interpretation of this Amendment.
d. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH OF DEBTOR, THE GUARANTORS AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY ANY RIGHT,
POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE OTHER
SECURITY DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, WHETHER
SOUNDING IN TORT OR CONTRACT OF OTHERWISE, OR WITH RESPECT TO ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY; AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF DEBTOR, THE GUARANTORS AND LENDER
FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL
CANNOT OR HAS NOT BEEN WAIVED UNLESS SUCH FAILURE TO CONSOLIDATE WOULD RESULT IN
INABILITY TO ENFORCE A CLAIM. FURTHER, DEBTOR AND THE GUARANTORS HEREBY CERTIFY
THAT NO REPRESENTATIVE OR AGENT OF LENDER, NOR LENDER'S COUNSEL, HAS REPRESENTED
EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. DEBTOR AND THE
GUARANTORS ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL
INDUCEMENT TO LENDER'S ACCEPTANCE OF THIS AMENDMENT AND THE OTHER SECURITY
DOCUMENTS.
e. This Amendment and all other Security Documents shall be governed
by the laws of the State of Colorado in all respects, including matters of
construction, performance and enforcement.
f. Whenever possible, the terms of this Amendment and the terms of
the Agreement and all prior amendments shall be read together, but to the extent
of any irreconcilable conflict, the terms of this Amendment shall govern.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have set their hands and seals the day and year first above written.
ATTEST: DEBTOR:
STEAMBOAT SUITES, INC.
_____________________________ By:_________________________________
LENDER:
TEXTRON FINANCIAL
CORPORATION
_____________________________ By:_________________________________
____________________________________
on behalf of Lender
ACKNOWLEDGED AND AGREED:
GUARANTOR:
PREFERRED EQUITIES
CORPORATION
_____________________________ By:_________________________________
GUARANTOR:
MEGO FINANCIAL CORP.
_____________________________ By:_________________________________
The address of the within named Lender is:
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of STEAMBOAT SUITES, INC., being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of PREFERRED EQUITIES CORPORATION, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
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CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of MEGO FINANCIAL CORP., being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
CORPORATE ACKNOWLEDGMENT
STATE OF ____________:
COUNTY OF ___________:
ON THIS, the ___ day of ___________, 1996 before me, a Notary Public in
and for the State and County aforesaid, the undersigned officer, personally
appeared _________________, who acknowledged himself to be the
_____________________ of TEXTRON FINANCIAL CORPORATION, being authorized to do
so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself/herself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------
Notary Public
My commission expires:
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EXHIBIT B-1
RESTATED AND AMENDED RECEIVABLES PROMISSORY NOTE
$15,000,000 November 30, 1995 Effective as of October 6, 1994
Steamboat Springs, Colorado
FOR VALUE RECEIVED and pursuant to the terms of this Restated and Amended
Receivables Promissory Note (this "NOTE"), the undersigned, STEAMBOAT SUITES,
INC., a Colorado corporation (the "DEBTOR"), promises to pay to the order of
TEXTRON FINANCIAL CORPORATION, a Delaware corporation (the "LENDER") (the Lender
and all subsequent holders of this Note being hereinafter referred to as the
"HOLDER"), at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Processing Center Manager, or at such other place as the Holder hereof may
designate in writing, the principal sum of up to FIFTEEN MILLION DOLLARS
($15,000,000), or so much thereof as shall be outstanding hereunder from time to
time as a result of advances or principal by the Lender to the Debtor pursuant
to that certain General Loan and Security Agreement between the Debtor and the
Lender, dated as of October 5, 1994(as amended by First Amendment to General
Loan and Security Agreement dates as of February 27, 1995 ("FIRST AMENDMENT")
and Second Amendment to General Loan and Security Agreement dated as of November
30, 1995 ("SECOND AMENDMENT") and as further amended from time to time,
(collectively the "AGREEMENT"), in respect of Receivables Advances (as such term
is defined in the Agreement), together with interest on the unpaid principal
amount from time to time outstanding under this Note at the rate or rates of
interest provided therefor in the Agreement.
The aforesaid principal amount and interest thereon shall be due and
payable on the dates and in the manner as provided in the Agreement in respect
of the Receivables Loan (as such term is defined in the Agreement). All
principal, interest and any other amounts due under this Note shall be payable
in lawful money of United States of America at the place or places above stated.
The Debtor may prepay the principal sum outstanding from time to time
hereunder as provided in the Agreement.
To the extent provided in the Agreement, this Note is secured by a
security interest in the Collateral (as such term is defined in the Agreement)
which shall include, without limitation, the Inventory Deed of Trust (as such
term is defined in the Agreement), and is jointly and severally guaranteed by
the Guarantor (as such term is defined in the Agreement).
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This Note is the restated and amended Receivables Note described in the
Second Amendment and has been issued pursuant to the Agreement. This Note is
executed and delivered as of November 30, 1995 but is effective as of October 6,
1994 and shall amend, restate and renew (without constituting a revocation,
cancellation or extinguishment of) the Note executed by Debtor on the Closing
Date (as defined in the Agreement). All of the terms, covenants and conditions
of the Agreement (including all Exhibits and Schedules thereto) and all other
instruments evidencing or securing the indebtedness hereunder are hereby made a
part of this Note and are deemed incorporated herein in full.
In the event of an Event of Default (as such term is defined in the
Agreement), the Holder may, at its option and in accordance with the terms of
the Agreement and the other Security Document (as defined in the Agreement), in
addition to any other remedies to which it may be entitled, declare the total
unpaid principal balance of the indebtedness evidenced hereby, together with all
accrued but unpaid interest thereon, and all other sums owing hereunder, under
the Agreement or under any other Security Document, immediately due and payable.
The Debtor and the Holder intend to comply at all times with applicable
usury laws. All agreements between the Debtor and the Holder, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of demand or acceleration of the
maturity of this Note or otherwise, shall the interest contracted for charged,
received, paid or agreed to be paid to the Holder hereunder exceed the maximum
allowable rate permissible under applicable law, or in the asbence of a maximum
allowable rate under applicable law, then, 45% per annum (the "Maximum Rate").
The Holder may, in determining the Maximum Rate in effect from time to time,
take advantage of any law, rule or regulation in effect from time to time
available to the Holder which exempts the Holder from any limit upon the rate of
interest it may charge or grants to the Holder the right to charge a higher rate
of interest than that otherwise permitted by applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to the Holder in
excess of the Maximum Rate, the interest payable to the Holder shall be reduced
to the Maximum Rate; and if from any circumstances Holder shall ever receive
anything of value deemed interest by applicable law in excess of the Maximum
Rate, an amount equal to any excessive interest shall be applied to the
reduction of the principal of the Receivables Loan and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of principal
of the Receivables Loan, such excess shall be refunded to the Debtor. All
interest paid or agreed to be paid to the Holder shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread throughout the
full period until payment in full of the principal so that the interest on the
Receivables Loan for such full period shall not exceed the Maximum Rate. Debtor
agrees that in determining whether or not any interest payment under the
Security
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Documents exceeds the Maximum Rate, any non-principal payment (except payments
specifically described in the Security Documents as "interest") including
without limitation, prepayment fees and late charges, shall to the maximum
extent not prohibited by law, be an expense, fee or premium rather than
interest. The Holder hereby expressly disclaims any intent to contract for,
charge or receive interest in an amount which exceeds the Maximum Rate. The
provisions of this Note are hereby modified to the extent necessary to conform
with the limitations and provisions of this paragraph.
Time is of the essence for the performance and observance of each
agreement and obligation of the Debtor under this Note and under the Security
Documents.
This Note also evidences Debtor's obligation to repay with interest all
additional moneys advanced or expended from time to time by the Holder to or for
the account of the Debtor or otherwise to be added to the principal balance
hereof as provided in any of the Security Documents, whether or not the
principal amount hereof shall thereby exceed the principal amount above stated.
The Debtor and all sureties, endorsers, guarantors and all other parties
now or hereafter liable for the payment of this Note, in whole or in part,
hereby severally waive presentment for payment, demand and protest and notice of
protest, acceleration, or dishonor and non-payment of this Note, and expressly
consent to any extension of time of payment hereof or of any installment hereof,
to the release of any party liable for this obligation, to the release, change
or modification of any of the Collateral, and any such extension, modification
or release may be made without notice to any of said parties and without in any
way affecting or discharging this liability.
No single or partial exercise of any power hereunder, under the Agreement
or under any other Security Document shall preclude other or further exercise
thereof or the exercise of any other power. The Holder shall at all times have
the right to proceed against any portions of the Collateral in such order and in
such manner as the Holder may deem appropriate, without waiving any rights with
respect to any other security. No delay or omission on the part of the Holder in
exercising any right or remedy hereunder or the acceptance of one or more
installments from any person after a default hereunder, under the Agreement or
under any other Security Document shall operate as a waiver of such right or
remedy in connection with any future default.
In the event any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Note, but this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
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The Holder is hereby authorized by the Debtor to record in the manual or
data processing records of the Holder, or on the grid schedule annexed to this
Note, the date and amount of each Receivables Advance extended to the Debtor by
the Lender hereunder and the date and amount of each repayment of principal and
each payment of interest on account of the Receivable Loan. In the absence of
manifest error, such records and schedule shall be conclusive as to the
outstanding principal amount of all Receivables Advances and the payment of
interest accrued hereunder; provided, however, that the failure of the Holder to
make any such record entry with respect to any Receivables Advance or any
payment in respect of the Receivables Loan shall not limit or otherwise affect
the obligations of the Debtor under this Note or the other Security Documents.
THIS NOTE AND ALL TRANSACTIONS HEREUNDER OR EVIDENCED HEREIN SHALL
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF COLORADO.
The Debtor has caused this Note to be signed in its corporate name by its
duly authorized officer on the date first above written.
STEAMBOAT SUITES, INC.
By:
----------------------------------------
Name:
Title:
[CORPORATE SEAL]
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REAFFIRMATION OF SUBORDINATION AGREEMENT
1. This Reaffirmation of Subordination Agreement ("Reaffirmation") by the
undersigned (the "Undersigned") is effective as of November 29, 1996. In order
to induce Textron Financial Corporation, a Delaware corporation ("TFC") to
continue to extend and amend loans to Steamboat Suites, Inc. ("Debtor "), a
Colorado corporation (collectively the "Loan"), as evidenced by that certain
General Loan and Security Agreement dated as of October 5, 1994 (as amended from
time to time, the "LSA"), the Undersigned executed and delivered to TFC a
certain Subordination Agreement of even date therewith.
2. Debtor and TFC now intend to modify the Loan, as evidenced by that
certain Third Amendment to General Loan and Security Agreement dated as of the
date hereof (the "Modification").
3. In order to induce TFC to execute the Modification the Undersigned
hereby agrees as follows:
a. All capitalized terms used in this Reaffirmation and not
otherwise defined herein shall have the meanings given to such terms
in the LSA and/or the Subordination Agreement;
b. The Undersigned consents to the Modification and agrees
that the Subordination Agreement shall remain in full force and
effect as if the LSA referred to therein were the LSA as amended by
the Modification;
c. The Undersigned acknowledges and agrees that all references
to the term "Debtor" contained in the Subordination Agreement shall
continue to be deemed to refer to Debtor and all references to the
"Subordinated Debt" shall include any present and future
indebtedness from Debtor to the Undersigned resulting from loans or
other accommodations to Debtor from the Undersigned (except for any
amounts payable by Debtor to the Undersigned from time to time under
income tax sharing arrangements between Debtor and the Undersigned);
d. Without limiting the generality of the foregoing, the
Undersigned does hereby specifically agree that all Subordinated
Debt owed by Debtor now or in the future to the Undersigned, and all
security therefor, shall be and hereby is subordinated to the Senior
Debt of Debtor to TFC as referred to in the Subordination Agreement
and as evidenced by the Notes referenced to in Section 1.1 of the
LSA. Said subordination shall be upon the same terms and conditions
set forth in the Subordination Agreement, which terms and conditions
are incorporated herein by reference thereto; and
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e. The Undersigned's agreements, covenants, representations
and warranties contained in the Subordination Agreement remain
unmodified as of the date hereof, and are hereby ratified, approved
and confirmed.
IN WITNESS WHEREOF, the Undersigned has executed this instrument as of the
____________ day of November, 1996.
MEGO FINANCIAL CORP.
a New York Corporation
By:
--------------------------------------------
Its:
--------------------------------------------
CORPORATE ACKNOWLEDGMENT
STATE OF ____________________________ )
) SS:
COUNTY OF ____________________________ )
ON THIS, the ____ day of _______________, 1996 before me, a Notary Public
in and for the State and County aforesaid, the undersigned officer, personally
appeared _____________, who acknowledged himself to be the ________________ of
Mego Financial Corp., a New York Corporation, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the names of the corporations by himself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-----------------------------------------
Notary Public
MY COMMISSION EXPIRES:
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