FIRST MODIFICATION AGREEMENT
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THIS FIRST MODIFICATION AGREEMENT ("Agreement") is entered into as of
February 27, 1998, among UDC HOMES, INC., a Delaware corporation ("Borrower"),
the Banks listed on the signature pages of this Agreement, and BANK ONE,
ARIZONA, NA, a national banking association ("Agent"). The parties hereto agree
as follows:
RECITALS:
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A. Agent, Banks and Borrower entered into an Amended and Restated UDC
Master Revolving Line of Credit Loan Agreement (Borrowing Base) dated as of
April 30, 1997 (the "Loan Agreement") pursuant to which the banks named therein
(the "Banks"), among other things, established a credit facility ("Credit
Facility") for Borrower, which is evidenced by the Notes. Capitalized terms not
otherwise defined herein shall have the same meanings ascribed to such terms in
the Loan Agreement.
B. Borrower has requested that Banks extend the Maturity Date and the
Conversion Date of the Credit Facility, and to make certain other modifications
to the Loan Agreement. Banks have agreed to so modify the Credit Facility and to
amend the Loan Agreement and other Loan Documents on the terms and subject to
the conditions set forth in this Agreement.
AGREEMENTS:
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For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower, Banks and Agent agree as follows:
I. SECTION ACCURACY OF RECITALS.
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The parties acknowledge the accuracy of the Recitals.
I. SECTION MODIFICATION OF LOAN DOCUMENTS; OTHER AGREEMENTS.
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A. Clause (b) in the definition of "Available Liquidity"
in Section 1.1 of the Loan Agreement is hereby modified in its entirety to read
as follows:
(b) The Available Commitment less the Outstanding Borrowings,
as of the time of determination.
A. The date of March 31, 1998, as set forth in the
definition of "Conversion Date" in Section 1.1 of the Loan Agreement, is hereby
modified to be March 31, 1999.
A. The word "less" is hereby added to the end of clause
(f) in the definition of "EBITDA" in Section 1.1 of the Loan Agreement, and the
following clause (g) is added:
(g) any income from any joint venture, partnership or similar
arrangement in excess of the cash distributions received by Borrower
from such joint venture, partnership or similar arrangement.
A. The definition of "Maturity Date" in Section 1.1 of
the Loan Agreement is hereby modified in its entirety to read as follows:
"Maturity Date" means March 31, 2000; provided, however, that
if Borrower extends the maturity date of the Senior Notes to a date
that is later than September 30, 2000, then so long as (i) no Event of
Default or Unmatured Event of Default has occurred and is continuing,
(ii) Borrower is in compliance with the Financial Covenants at the time
of such extension, and (iii) the Term Out Period has not yet commenced,
then the Maturity Date shall automatically be extended to September 30,
2000.
A. The year "1990", as it appears in the definition of
"Title Policy" in Section 1.1 of the Loan Agreement, is hereby modified to be
"1992."
A. The following sentence is hereby added to the end of
Section 2.1(c), after clause (iii), of the Loan Agreement:
Notwithstanding the foregoing, if a Bank's Pro Rata Interest will be
zero during the proposed extension period, then the consent of such
Bank to the extension of the Conversion Date shall not be required.
A. Section 2.1(d) of the Loan Agreement is hereby
modified in its entirety to read as follows:
(d) Term Out. From and after the Conversion Date, the
Commitment Amount will be automatically reduced on the last day of the
3rd Calendar Month in the Term Out Period and on the last day of each
third Calendar Month thereafter (each, a "Reduction Date"), with the
amount of each such reduction to be equal to (i) one-fourth of the
Commitment Amount in effect as of the day prior to commencement of the
Term Out Period, if the Maturity Date is March 31, 2000, or (ii)
one-sixth of the Commitment Amount in effect as of the day prior to
commencement of the Term Out Period, if the Maturity Date is extended
to September 30, 2000 in accordance with the definition of "Maturity
Date."
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A. Section 5.2(d) of the Loan Agreement is hereby
modified in its entirety to read as follows:
(d) Size of Subdivisions. With respect to any one Subdivision,
the maximum number of Lots may not exceed 175 unless otherwise approved
(i) by a Bank Supermajority, or (ii) solely for purposes of determining
compliance with Section 5.6(a) as to Unit-only qualification requests,
by the Agent and the Co-Agent.
A. Section 5.2(h) of the Loan Agreement is hereby
modified in its entirety to read as follows:
(h) Plat. Borrower shall have delivered to the Agent a
preliminary parcel map, recorded parcel map, preliminary plat, recorded
plat, or survey of the Subdivision.
A. The clause "If required by the Agent," is hereby
added at the beginning of Section 5.2(l) of the Loan Agreement.
A. The first sentence of Section 5.6 of the Loan
Agreement is hereby modified in its entirety to read as follows:
Borrower may, from time to time, request the Agent to approve
a Unit as Eligible Collateral; provided, however, that (i) if the
Maturity Date is March 31, 2000, following the end of the 6th Calendar
Month of the Term Out Period, no Unit will be included in Eligible
Collateral for the first time; and (ii) if the Maturity Date is
extended to September 30, 2000 in accordance with the definition of
"Maturity Date," following the end of the 12th Calendar Month of the
Term Out Period, no Unit will be included in Eligible Collateral for
the first time.
A. The following Section 8.10 is hereby added to the
Loan Agreement:
8.10 Minimum Net Worth Covenant. As of each Test Date,
commencing March 31, 1998, Borrower will have a minimum Net Worth, as
determined in accordance with this Section, equal to or greater than
$5,000,000.00. For purposes of the foregoing calculation, "Net Worth"
means, as to Borrower, the sum of all capital accounts determined in
conformity with GAAP.
A. Section 9.11 of the Loan Agreement is hereby modified
in its entirety to read as follows:
Except as expressly permitted by the Loan Documents and except for the
Norwest Mortgage joint venture and the investments in Affiliates listed
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on Exhibit E, Borrower will not make any Investment in any Person
(including, without limitation, entering into any joint venture,
partnership, or similar arrangement, or increasing its capital
obligation for any previously approved joint venture, partnership, or
similar arrangement) without prior written approval of all Banks in
their sole and absolute discretion.
A. The following proviso is hereby added to the end of
Section 10.1(b) of the Loan Agreement:
; and provided further, that with respect to the failure of Borrower to
comply with the Financial Covenant set forth in Section 8.10, an Event
of Default will not occur pursuant to this Section 10.1(b) if within
thirty (30) days after the end of the fiscal quarter to which such
failure relates, Borrower's Net Worth is increased to an amount that is
not less than $5,000,000 (including any increase resulting from a
conversion of Qualified Subordinated Debt into capital accounts, as
determined in accordance with GAAP), without violating any other
Financial Covenant or causing any other Event of Default or Unmatured
Event of Default to occur.
A. The Pro Rata Interest of Guaranty Federal Bank,
F.S.B. ("Guaranty Federal"), Bank of America National Trust and Savings
Association ("Bank of America") and Xxxxx Fargo Bank, National Association
("Xxxxx Fargo"), as set forth on the signature pages of the Loan Agreement, are
each hereby amended to be the Pro Rata Interest set forth on the signature pages
of this Agreement. As a result of the foregoing amendment, the Pro Rata Interest
of Guaranty Federal and the Pro Rata Interest of Bank of America increased and
the Pro Rata Interest of Xxxxx Fargo decreased by a corresponding amount. As of
the date of this Agreement, Xxxxx Fargo hereby sells and assigns to Guaranty
Federal and to Bank of America (each, an "Assuming Bank"), and each Assuming
Bank hereby purchases and assumes, without recourse, from Xxxxx Fargo, all of
Xxxxx Fargo's rights and obligations in respect of the portion of its Pro Rata
Interest and the portion of all Advances owing to Xxxxx Fargo that are
outstanding on the date hereof, to the extent required in order to appropriately
adjust the Pro Rata Interests and the Advances. In connection with the foregoing
assignment, on or before 11:00 a.m., Phoenix time, on the date of this
Agreement, each Assuming Bank shall wire transfer to the Agent the applicable
amount necessary to make the foregoing adjustment, and Agent shall wire transfer
the respective amount to Xxxxx Fargo on the date of this Agreement.
A. Each of the Loan Documents is modified to provide
that it shall be a default or an event of default thereunder if Borrower shall
fail to comply with any of the covenants of Borrower herein or if any
representation or warranty by Borrower herein or by any guarantor in any related
Consent and Agreement of Guarantor is materially incomplete, incorrect, or
misleading as of the date hereof.
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A. Each reference in the Loan Documents to any of the
Loan Documents is hereby amended to be a reference to such document as modified
herein.
I. SECTION RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.
---------------------------------------------
The Loan Documents are ratified and affirmed by Borrower and shall
remain in full force and effect as modified herein. Any property or rights to or
interests in property granted as security in the Loan Documents shall remain as
security for the Credit Facility and the obligations of Borrower in the Loan
Documents.
I. SECTION BORROWER REPRESENTATIONS AND WARRANTIES.
---------------------------------------
Borrower represents and warrants to Agent and Banks:
A. As of February 26, 1998, the outstanding principal
balance of the Notes is $86,777,040.47 and interest has been paid current.
A. No default or event of default under any of the Loan
Documents as modified herein, nor any event, that, with the giving of notice or
the passage of time or both, would be a default or an event of default under the
Loan Documents as modified herein has occurred and is continuing.
A. There has been no material adverse change in the
financial condition of Borrower or any other person whose financial statement
has been delivered to Agent or any Bank in connection with the Credit Facility
from the most recent financial statement received by Agent or any Bank.
A. Each and all representations and warranties of
Borrower in the Loan Documents are accurate on the date hereof.
A. Borrower has no claims, counterclaims, defenses, or
set-offs with respect to the Credit Facility or the Loan Documents as modified
herein.
A. The Loan Documents as modified herein are the legal,
valid, and binding obligations of Borrower, enforceable against Borrower in
accordance with their terms.
A. Borrower is validly existing under the laws of the
State of its formation or organization and has the requisite power and authority
to execute and deliver this Agreement and to perform the Loan Documents as
modified herein. The execution and delivery of this Agreement and the
performance of the Loan Documents as modified herein have been duly authorized
by all requisite action by or on behalf of Borrower. This Agreement has been
duly executed and delivered on behalf of Borrower.
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I. SECTION BORROWER COVENANTS.
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Borrower covenants with Agent and Banks:
A. Borrower shall execute, deliver, and provide to Agent
such additional agreements, documents, and instruments as reasonably required by
Agent to effectuate the intent of this Agreement.
A. Borrower fully, finally, and absolutely and forever
releases and discharges Agent and Banks and their present and former directors,
shareholders, officers, employees, agents, representatives, successors and
assigns, and their separate and respective heirs, personal representatives,
successors and assigns, from any and all actions, causes of action, claims,
debts, damages, demands, liabilities, obligations, and suits, of whatever kind
or nature, in law or equity of Borrower, now known to Borrower, and whether
contingent or matured, (i) in respect of the Credit Facility, the Loan
Documents, or the actions or omissions of Agent or any of the Banks in respect
of the Credit Facility or the Loan Documents and (ii) arising from events
occurring prior to the date of this Agreement.
I. SECTION CONDITIONS PRECEDENT.
--------------------
The agreements of Agent and Banks and the modifications contained
herein shall not be binding upon Agent and Banks until Agent and Banks have
executed and delivered this Agreement and Agent has received, at Borrower's
expense, all of the following, all of which shall be in form and content
satisfactory to Agent and Banks and shall be subject to approval by Agent and
Banks:
A. An original of this Agreement fully executed by
Borrower;
A. An original of the Consent and Agreement of Guarantor
attached hereto, fully executed by Guarantor (as defined therein);
A. A Replacement Note payable to the order of Guaranty
Federal in the amount of $40,000,000.00, in the form attached hereto as Exhibit
A, fully executed by Borrower;
A. A Replacement Note payable to the order of Bank of
America in the amount of $40,000,000.00, in the form attached hereto as Exhibit
B, fully executed by Borrower;
A. A Replacement Note payable to the order of Xxxxx
Fargo in the amount of $20,000,000.00, in the form attached hereto as Exhibit C,
fully executed by Borrower;
A. If Borrower or any Guarantor is a corporation,
limited liability company, partnership or trust, such resolutions or
authorizations and such other
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documents as Agent may require relating to the existence and good standing of
that corporation, partnership or trust, and the authority of any person
executing this Agreement or other documents on behalf of that corporation,
limited liability company, partnership or trust; and
A. Payment of all the internal and external costs and
expenses incurred by Agent in connection with this Agreement (including, without
limitation, outside attorneys' expenses and fees).
I. SECTION INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE,
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TERMINATION, OR WAIVER.
----------------------
The Loan Documents as modified herein contain the complete
understanding and agreement of Borrower, Agent and Banks in respect of the
Credit Facility and supersede all prior representations, warranties, agreements,
arrangements, understandings, and negotiations. No provision of the Loan
Documents as modified herein may be changed, discharged, supplemented,
terminated, or waived except in a writing signed by the applicable parties as
required in the Loan Agreement.
I. SECTION BINDING EFFECT.
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The Loan Documents as modified herein shall be binding upon and shall
inure to the benefit of Borrower, Agent and Banks and their successors and
assigns and the executors, legal administrators, personal representatives,
heirs, devisees, and beneficiaries of Borrower; provided, however, Borrower may
not assign any of its right or delegate any of its obligation under the Loan
Documents and any purported assignment or delegation shall be void.
I. SECTION CHOICE OF LAW.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona, without giving effect to conflicts of law
principles.
I. SECTION COUNTERPART EXECUTION.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.
DATED as of the date first above stated.
UDC HOMES, INC., a Delaware corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
BORROWER
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BANK ONE, ARIZONA, NA, a national banking
association, as the Agent and as one of
the Banks
By:
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Pro Rata Interest: $60,000,000.00
35.2941177%
GUARANTY FEDERAL BANK, F.S.B., a
federal savings bank, as the Co-Agent and as
one of the Banks
By:
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Pro Rata Interest: $40,000,000.00
23.5294118%
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as one of
the Banks
By:
Name: Xxxx X. XxXxxxx
Title: Vice President
Pro Rata Interest: $20,000,000.00
11.7647058%
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association,
as one of the Banks
By:
Name: Xxxxx X. Xxxxxx
Title: Vice President
Pro Rata Interest: $40,000,000.00
23.5294118%
NORWEST BANK ARIZONA, NATIONAL ASSOCIATION,
a national banking association, as one of
the Banks
Pro Rata Interest: $10,000,000.00
5.8823529%
By:
Name: E. Xxxxx Xxxxx
Title: Vice President
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CONSENT AND AGREEMENT OF GUARANTOR
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With respect to the First Modification Agreement, dated February 27,
1998 ("Agreement"), between UDC HOMES, INC., a Delaware corporation
("Borrower"), BANK ONE, ARIZONA, NA, a national banking association, as Agent
("Agent"), and the Banks named on the signature pages thereto, the undersigned
(severally and collectively, "Guarantor") agree for the benefit of Banks and
Agent as follows:
A. Guarantor acknowledges (i) receiving a copy of and
reading the Agreement, (ii) the accuracy of the Recitals in the Agreement, and
(iii) the effectiveness of (A) the Amended and Restated Continuing Guaranty
(Master Revolving Line of Credit) dated April 30, 1997, executed by Guarantor,
as modified herein ("Guaranty"), (B) the Amended and Restated Subordination and
Standby Agreement (Master Revolving Line of Credit) dated April 30, 1997,
executed by Guarantor, as modified herein ("Subordination"), and (C) any other
agreements, documents, or instruments securing or otherwise relating to the
Guaranty or the Subordination, as modified herein. The Guaranty, the
Subordination, and such other agreements, documents, and instruments, as
modified herein, are referred to individually and collectively as the "Guarantor
Documents."
A. Guarantor consents to the modification of the Loan
Documents and all other matters in the Agreement.
A. Guarantor fully, finally, and forever releases and
discharges Banks and Agent and their successors, assigns, directors, officers,
employees, agents, and representatives from any and all actions, causes of
action, claims, debts, demands, liabilities, obligations, and suits of whatever
kind or nature, in law or equity, that Guarantor has or in the future may have,
now known to Guarantor, (i) in respect of the Credit Facility, the Loan
Documents, the Guarantor Documents, or the actions or omissions of any of the
Banks or Agent in respect of the Credit Facility, the Loan Documents, or the
Guarantor Documents and (ii) arising from events occurring prior to the date
hereof.
A. Guarantor agrees that all references, if any, to the
Loan Agreement and the Loan Documents in the Guarantor Documents shall be deemed
to refer to such agreements, documents, and instruments as modified by the
Agreement.
A. Guarantor reaffirms the Guarantor Documents and
agrees that the Guarantor Documents continue in full force and effect and remain
unchanged, except as specifically modified by this Consent and Agreement of
Guarantors.
A. Guarantor agrees that the Loan Documents, as modified
by the Agreement, and the Guarantor Documents, as modified by this Consent and
Agreement of Guarantor, are the legal, valid, and binding obligations of
Borrower and the
undersigned, respectively, enforceable in accordance with their terms against
Borrower and the undersigned, respectively.
B. Guarantor agrees that Guarantor has no claims,
counterclaims, defenses, or offsets with respect to the enforcement against
Guarantor of the Guarantor Documents.
A. Guarantor represents and warrants that there has been
no material adverse change in the financial condition of any Guarantor from the
most recent financial statement received by Banks or Agent.
9. Guarantor is validly existing under the laws of the State of its
formation or organization and has the requisite power and authority to execute
and deliver this Agreement and to perform the Guarantor Documents as modified
herein. The execution and delivery of this Agreement and the performance of the
Guarantor Documents as modified herein have been duly authorized by all
requisite action by or on behalf of Guarantor. This Agreement has been duly
executed and delivered on behalf of Guarantor.
A. Guarantor agrees that this Consent and Agreement of
Guarantor may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
document. Signature and acknowledgment pages may be detached from the
counterparts and attached to a single copy of this Consent and Agreement of
Guarantor to physically form one document.
DATED as of the date of the Agreement.
UDC HOMES CONSTRUCTION, INC., an
Arizona corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
UDC ADVISORY SERVICES, INC., an Illinois
corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
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UDC CORPORATION, a Delaware corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
ABERDEEN SERVICES, INC., a Florida
corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
UDC HOMES OF GEORGIA, INC., a Georgia
corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
MOUNTAINBROOK VILLAGE COMPANY, an
Arizona corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
GUARANTOR
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EXHIBIT A
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AMENDED AND RESTATED
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PROMISSORY NOTE
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(UDC Master Revolving Line of Credit)
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$40,000,000 February 27, 1998
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FOR VALUE RECEIVED, UDC HOMES, INC., a Delaware corporation
("Borrower"), promises to pay to GUARANTY FEDERAL BANK, F.S.B, a federal saving
bank ("Bank"), or order, the aggregate principal amount of U.S. $40,000,000 or,
if less, the aggregate principal amount of all Advances by Bank to Borrower
pursuant to the Loan Agreement referred to below, outstanding on the Maturity
Date and at such other times as are specified in the Loan Agreement. All
capitalized terms not otherwise defined herein are used herein as defined in the
Loan Agreement.
Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Loan Agreement. Interest shall be calculated on a 360-day year
for all advances, but, in any case, shall be computed for the actual number of
days in the period for which interest is charged, which period shall consist of
a 365 or 366-day period on an annual basis.
Both principal and interest are payable in lawful money of the
United States of America to the Agent as provided in the Loan Agreement.
Each Advance made by or assigned to Bank, any repayment thereof,
the interest rate and the Interest Periods applicable to such Advance shall be
recorded on the books and records of the holder hereof. Borrower agrees that in
any action or proceeding instituted to collect or enforce collection of this
Note, the entry so recorded on the books and records of the holder hereof shall
be conclusive evidence (absent manifest error) of the unpaid balance of this
Note, the interest rate and the Interest Periods applicable thereto.
This Amended and Restated Promissory Note is one of the Notes
referred to in, and is entitled to the benefits of, the Amended and Restated UDC
Master Revolving Line of Credit Loan Agreement (Borrowing Base) dated April 30,
1997, as thereafter amended (the "Loan Agreement"), among Borrower, Bank One,
Arizona, NA, individually and as Agent, Bank, and the other banks parties
thereto. The Loan Agreement, among other things, (i) provides for the making of
Advances by Bank to Borrower in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
Borrower resulting from each Advance being evidenced by this Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions herein specified.
This Amended and Restated Promissory Note is secured, among
other security, by security instruments covering real property and personal
property of Borrower located in California and Arizona.
Failure to exercise any remedy or right hereunder shall not
constitute a waiver of the right to exercise the same in the event of any
subsequent default.
Except as set forth in the Loan Agreement, Borrower and all
others now or hereafter serving as sureties, endorsers and guarantors of this
Note waive: demand; presentment for payment; notice of nonpayment; protest;
notice of protest; notice of dishonor; notice of default or delinquency; notice
of acceleration; notice of costs, expenses or losses and interest; notice of
interest on interest and late charges; and all other notices; any requirement at
law or in equity that Bank file suit and otherwise act diligently in collecting
this Note or in proceeding against any of the rights or interests to properties
securing the payment of this Note; and any claims arising out of the release of
any party primarily or secondarily liable hereon. Borrower and all others now or
hereafter serving as sureties, endorsers and guarantors of this Note further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note by any of them, to first institute suit or exhaust its
remedies against any maker or others liable herefor, and consent to any
extension or postponement of time or payment of this Note or any other
indulgence with respect hereto without notice thereof to any of them.
This Note is assignable and transferable only in accordance with
the Loan Agreement.
All terms and conditions of the Loan Agreement including,
without limitation, events of default, interest rate provisions, payments, and
maturity dates, are incorporated herein by reference.
This Note amends and restates and replaces that certain Amended
and Restated Promissory Note (UDC Master Revolving Line of Credit) dated April
30, 1997, in the principal amount of $30,000,000.00 executed by Borrower in
favor of Bank. All indebtedness of Borrower under such existing note shall
automatically and without further action become indebtedness under this Note.
IN WITNESS WHEREOF, Borrower has executed and delivered this
Note as of the day and year first above written.
BORROWER: UDC HOMES, INC., a Delaware corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
WITNESSED BY:
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STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this _____
day of February, 1998, by Xxxxx X. Xxxxxxxx, the Senior Executive Vice President
of UDC HOMES, INC., a Delaware corporation, on behalf of the corporation.
-------------------------------------------------
Notary Public
My Commission Expires:
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EXHIBIT B
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AMENDED AND RESTATED
--------------------
PROMISSORY NOTE
---------------
(UDC Master Revolving Line of Credit)
-------------------------------------
$40,000,000 February 27, 1998
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FOR VALUE RECEIVED, UDC HOMES, INC., a Delaware corporation
("Borrower"), promises to pay to BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association (Bank"), or order, the aggregate
principal amount of U.S. $40,000,000 or, if less, the aggregate principal amount
of all Advances by Bank to Borrower pursuant to the Loan Agreement referred to
below, outstanding on the Maturity Date and at such other times as are specified
in the Loan Agreement. All capitalized terms not otherwise defined herein are
used herein as defined in the Loan Agreement.
Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Loan Agreement. Interest shall be calculated on a 360-day year
for all advances, but, in any case, shall be computed for the actual number of
days in the period for which interest is charged, which period shall consist of
a 365 or 366-day period on an annual basis.
Both principal and interest are payable in lawful money of the
United States of America to the Agent as provided in the Loan Agreement.
Each Advance made by or assigned to Bank, any repayment thereof,
the interest rate and the Interest Periods applicable to such Advance shall be
recorded on the books and records of the holder hereof. Borrower agrees that in
any action or proceeding instituted to collect or enforce collection of this
Note, the entry so recorded on the books and records of the holder hereof shall
be conclusive evidence (absent manifest error) of the unpaid balance of this
Note, the interest rate and the Interest Periods applicable thereto.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Amended and Restated UDC Master Revolving Line
of Credit Loan Agreement (Borrowing Base) dated April 30, 1997, as thereafter
amended (the "Loan Agreement"), among Borrower, Bank One, Arizona, NA,
individually and as Agent, and the other banks parties thereto. The Loan
Agreement, among other things, (i) provides for the making of Advances by Bank
to Borrower in an aggregate amount not to exceed at any time outstanding the
U.S. dollar amount first above mentioned, the indebtedness of Borrower resulting
from each Advance being evidenced by this Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions herein specified.
This Promissory Note is secured, among other security, by
security instruments covering real property and personal property of Borrower
located in California and Arizona.
Failure to exercise any remedy or right hereunder shall not
constitute a waiver of the right to exercise the same in the event of any
subsequent default.
Except as set forth in the Loan Agreement, Borrower and all
others now or hereafter serving as sureties, endorsers and guarantors of this
Note waive: demand; presentment for payment; notice of nonpayment; protest;
notice of protest; notice of dishonor; notice of default or delinquency; notice
of acceleration; notice of costs, expenses or losses and interest; notice of
interest on interest and late charges; and all other notices; any requirement at
law or in equity that Bank file suit and otherwise act diligently in collecting
this Note or in proceeding against any of the rights or interests to properties
securing the payment of this Note; and any claims arising out of the release of
any party primarily or secondarily liable hereon. Borrower and all others now or
hereafter serving as sureties, endorsers and guarantors of this Note further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note by any of them, to first institute suit or exhaust its
remedies against any maker or others liable herefor, and consent to any
extension or postponement of time or payment of this Note or any other
indulgence with respect hereto without notice thereof to any of them.
All the terms and conditions of the Loan Agreement including,
without limitation, events of default, interest rate provisions, payments, and
maturity dates, are incorporated herein by reference.
This Note is assignable and transferable only in accordance with
the Loan Agreement.
This Note amends and restates and replaces that certain
Promissory Note (UDC Master Revolving Line of Credit) dated April 30, 1997, in
the principal amount of $30,000,000.00 executed by Borrower in favor of Bank.
All indebtedness of Borrower under such existing note shall automatically and
without further action become indebtedness under this Note. .
IN WITNESS WHEREOF, Borrower has executed and delivered this
Note as of the day and year first above written.
BORROWER: UDC HOMES, INC., a Delaware corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
WITNESSED BY:
-----------------------------
-2-
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this _____
day of February, 1998, by Xxxxx X. Xxxxxxxx, the Senior Executive Vice President
of UDC HOMES, INC., a Delaware corporation, on behalf of the corporation.
-------------------------------------------------
Notary Public
My Commission Expires:
----------------------
-3-
EXHIBIT C
---------
AMENDED AND RESTATED
--------------------
PROMISSORY NOTE
---------------
(UDC Master Revolving Line of Credit)
-------------------------------------
$20,000,000 February 27, 1998
------------------------------------------------------------------
FOR VALUE RECEIVED, UDC HOMES, INC., a Delaware corporation
("Borrower"), promises to pay to XXXXX FARGO BANK, NATIONAL ASSOCIATION, a
national banking association ("Bank"), or order, the aggregate principal amount
of U.S. $20,000,000 or, if less, the aggregate principal amount of all Advances
by Bank to Borrower pursuant to the Loan Agreement referred to below,
outstanding on the Maturity Date and at such other times as are specified in the
Loan Agreement. All capitalized terms not otherwise defined herein are used
herein as defined in the Loan Agreement.
Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Loan Agreement. Interest shall be calculated on a 360-day year
for all advances, but, in any case, shall be computed for the actual number of
days in the period for which interest is charged, which period shall consist of
a 365 or 366-day period on an annual basis.
Both principal and interest are payable in lawful money of the
United States of America to the Agent as provided in the Loan Agreement.
Each Advance made by or assigned to Bank, any repayment thereof,
the interest rate and the Interest Periods applicable to such Advance shall be
recorded on the books and records of the holder hereof. Borrower agrees that in
any action or proceeding instituted to collect or enforce collection of this
Note, the entry so recorded on the books and records of the holder hereof shall
be conclusive evidence (absent manifest error) of the unpaid balance of this
Note, the interest rate and the Interest Periods applicable thereto.
This Amended and Restated Promissory Note is one of the Notes
referred to in, and is entitled to the benefits of, the Amended and Restated UDC
Master Revolving Line of Credit Loan Agreement (Borrowing Base) dated April 30,
1997, as thereafter amended (the "Loan Agreement"), among Borrower, Bank One,
Arizona, NA, individually and as Agent, and the other banks parties thereto. The
Loan Agreement, among other things, (i) provides for the making of Advances by
Bank to Borrower in an aggregate amount not to exceed at any time outstanding
the U.S. dollar amount first above mentioned, the indebtedness of Borrower
resulting from each Advance being evidenced by this Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions herein specified.
This Amended and Restated Promissory Note is secured, among
other security, by security instruments covering real property and personal
property of Borrower located in California and Arizona.
Failure to exercise any remedy or right hereunder shall not
constitute a waiver of the right to exercise the same in the event of any
subsequent default.
Except as set forth in the Loan Agreement, Borrower and all
others now or hereafter serving as sureties, endorsers and guarantors of this
Note waive: demand; presentment for payment; notice of nonpayment; protest;
notice of protest; notice of dishonor; notice of default or delinquency; notice
of acceleration; notice of costs, expenses or losses and interest; notice of
interest on interest and late charges; and all other notices; any requirement at
law or in equity that Bank file suit and otherwise act diligently in collecting
this Note or in proceeding against any of the rights or interests to properties
securing the payment of this Note; and any claims arising out of the release of
any party primarily or secondarily liable hereon. Borrower and all others now or
hereafter serving as sureties, endorsers and guarantors of this Note further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note by any of them, to first institute suit or exhaust its
remedies against any maker or others liable herefor, and consent to any
extension or postponement of time or payment of this Note or any other
indulgence with respect hereto without notice thereof to any of them.
This Note is assignable and transferable only in accordance with
the Loan Agreement.
All terms and conditions of the Loan Agreement including,
without limitation, events of default, interest rate provisions, payments, and
maturity dates, are incorporated herein by reference.
This Note amends and restates and replaces that certain Amended
and Restated Promissory Note (UDC Master Revolving Line of Credit) dated April
30, 1997, in the principal amount of $40,000,000.00 executed by Borrower in
favor of Bank. All indebtedness of Borrower under such existing note shall
automatically and without further action become indebtedness under this Note.
.
IN WITNESS WHEREOF, Borrower has executed and delivered this
Note as of the day and year first above written.
BORROWER: UDC HOMES, INC., a Delaware corporation
By:
Name: Xxxxx X. Xxxxxxxx
Title: Senior Executive Vice President
WITNESSED BY:
------------------------------
-2-
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this _____
day of February, 1998, by Xxxxx X. Xxxxxxxx, the Senior Executive Vice President
of UDC HOMES, INC., a Delaware corporation, on behalf of the corporation.
-------------------------------------------------
Notary Public
My Commission Expires:
----------------------
-3-
