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EXHIBIT 10.4
SEVENTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING LOAN AGREEMENT
This Seventh Amendment to Amended and Restated Revolving Loan
Agreement ("Seventh Amendment") is entered into as of January 15, 1998 by and
among XXX XXXX CORPORATION, a Delaware corporation ("Borrower"), each bank whose
name is set forth on the signature pages of this Seventh Amendment
(collectively, the "Banks" and individually a "Bank"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, a national banking association (the "Agent") and
BANK ONE, ARIZONA, NA, a national banking association (the "Co-Agent"). This
Seventh Amendment is one of the Loan Documents referred to in the Loan Agreement
defined below. All terms and agreements set forth in the Loan Agreement which
are generally applicable to the Loan Documents shall apply to this Seventh
Amendment. Capitalized terms not otherwise defined herein shall have the
meanings given them in the Loan Agreement.
RECITALS
A. Borrower, the Banks, the Agent and the Co-Agent have previously
made and entered into that certain Amended and Restated Revolving Loan
Agreement, dated as of June 27, 1995, as amended by that certain First Amendment
to Amended and Restated Revolving Loan Agreement, dated as of December 15, 1995,
that certain Second Amendment to Amended and Restated Revolving Loan Agreement,
dated as of July 22, 1996, that certain Third Amendment to Amended and Restated
Revolving Loan Agreement, dated as of March 31, 1997, that certain Fourth
Amendment to Amended and Restated Revolving Loan Agreement, dated April 29,
1997, that certain Fifth Amendment to Amended and Restated Revolving Loan
Agreement, dated October 1, 1997 and that certain Sixth Amendment to Amended and
Restated Revolving Loan Agreement, dated as of December 1, 1997 (as so amended,
the "Loan Agreement"), pursuant to which the Banks agreed to make revolving
loans to Borrower in the aggregate principal amount of up to $350,000,000 (the
"Loan"). The Loan is evidenced by the Loan Agreement and the various Line A
Notes and Line B Notes executed by Borrower in favor of the Banks.
B. Borrower has requested that an additional $50,000,000 be made
available as part of the Line A Commitment and that certain other modifications
and amendments be made to the Loan Agreement and, subject to the terms and
conditions contained herein, the Banks and the Agent have agreed to such
increase and such modifications and amendments, as more fully set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Borrower, the Banks, the Co-Agent and
the Agent hereby agree as follows:
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1. Amendments to Loan Agreement.
1.1 Section 1.1 In Section 1.1 of the Loan Agreement, the definition
of "Line A Commitment" is restated in its entirety to read as follows:
"'Line A Commitment' means, subject to Sections 2.4 and 2.5,
$307,000,000. The respective Pro Rata Shares of the Banks
with respect to the Line A Commitment are set forth in
Schedule 1.2."
1.2 Section 6.13. The table in Section 6.13 of the Loan Agreement is
amended as follows:
"Period Ratio
------- -----
Jan. 1, 1998 through 2.50:1.00
June 30, 1999
July 1, 1999 through 2.35:1.00
June 30, 2000
July 1, 2000 and thereafter 2.15:1.00"
1.3 Section 6.14. Section 6.15 of the Loan Agreement is amended in
its entirety to read as follows:
"6.15 Liquidity. Permit, as of the last day of any Fiscal
Year, beginning June 30, 1995, the ratio of EBITDA for such Fiscal Year to
Specified Charges for such Fiscal Year to be less than (a) 0.50:1.00 for
the Fiscal Year ending June 30, 1995, (b) 0.75:1.00 for the Fiscal Years
ending June 30, 1996 and 1997, (c) 0.65:1.00 for the Fiscal Years ending
June 30, 1998 and 1999 or (d) 0.75:1.00 for the Fiscal Years ending June
30, 2000 or thereafter, provided that any such failing shall not
constitute an Event of Default under Section 9.1(c) unless and until
Borrower shall also permit, as of the last day of the immediately
succeeding Fiscal Quarter, the ratio of EBITDA for the four (4) Fiscal
Quarter period then ending to Specified Charges for such four (4) Fiscal
Quarter period to also be less than said specified ratio."
1.4 Schedule 1.2. Schedule 1.2 ("Bank Group Commitments") to the
Loan Agreement is amended and restated in its entirety in the schedule attached
to this Seventh Amendment as Annex I.
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1.5 Schedule 4.4. Schedule 4.4 ("Subsidiaries") to the Loan
Agreement is amended and restated in its entirety in the schedule attached to
this Seventh Amendment as Annex III.
2. Underwriting Fees. On the effective date of this Seventh Amendment,
Borrower agrees to pay underwriting fees as follows:
(a) Borrower agrees to pay to the Agent for the respective
accounts of each Bank whose aggregate Commitment is increasing pursuant to
this Seventh Amendment, a fee equal to 15 basis points times the increase
in such Bank's aggregate Commitment as shown on Annex I hereto; and
(b) Borrower agrees to pay a $5,000 fee to each Bank that does
not otherwise receive an underwriting fee pursuant to clause (a), above.
These underwriting fees are fully earned upon such effective date and are
nonrefundable.
3. Adjusting Purchase Payments. The Agent shall notify the Banks on the
first Banking Day that the conditions specified in Sections 5(a)-5(f) hereof
have been satisfied (the "Notice"). On the following Banking Day, certain of the
Banks shall purchase, and certain of the Banks shall sell, to one another, the
percentage interests in the Commitments as reflected in Annex II hereto, in
order to reallocate the then outstanding Advances under the Notes among the
Banks to correspond to the revised Pro Rata Shares of the Banks specified in
Annex I hereto. The applicable purchase price payments are specified on Annex II
hereto and referred to herein as the "Adjusting Purchase Payments." The
Adjusting Purchasing Payments shall be made to the Agent by the applicable
purchasing Banks by Federal Reserve wire transfer initiated by the payor no
later than 9:00 a.m. California time on the Banking Day following the Notice.
Upon receipt of all such payments, the Agent shall promptly send appropriate
portions thereof to the selling Banks by Federal Reserve wire transfer. The new
Pro Rata Shares shall become effective on the close of business on the day of
transfer of such funds.
4. Borrower's Representations and Warranties. Borrower hereby represents
and warrants that except as previously disclosed to the Banks in writing, all of
the representations and warranties contained in the Loan Documents are true and
correct on and as of the date of this Seventh Amendment as though made on that
date and after giving effect to this Seventh Amendment no Event of Default shall
be continuing.
5. Conditions Precedent. The effectiveness of this Seventh Amendment is
conditioned upon the satisfaction by Borrower of each of the following
conditions on or before January 23, 1998:
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(a) Borrower shall have delivered or caused to be delivered to
the Agent executed original counterparts of this Seventh Amendment and
Exhibit A hereto, sufficient in number for distribution to the Agent, the
Banks and Borrower;
(b) Borrower shall have delivered to the Agent executed
original replacement Line A Notes and Line B Notes, for each Bank, in the
forms of Exhibit B and Exhibit C hereto. Such replacement notes shall
reflect the increase in the Line A Commitment herein as well as the
alteration of the Pro Rata Share of each Bank reflected on Annex I hereto;
(c) Borrower shall have paid the Underwriting Fees required in
Section 2 hereof;
(d) The Agent shall have received from Borrower such
documentation as may be required to establish the authority of Borrower to
execute, deliver and perform any of the Loan Documents to which it is a
Party, including, without limitation, this Seventh Amendment and the
replacement Line A Notes and Line B Notes. Such documentation shall
include certified corporate resolutions, incumbency certificates, and such
other certificates or documents as the Agent shall reasonably require;
(e) The Agent shall have received a written legal opinion of
counsel(s) to Borrower and each Guarantor, in form and substance
satisfactory to the Agent, regarding the execution, delivery, performance
and enforceability of this Seventh Amendment, the Guarantors' Consent
hereto and the replacement Line A Notes and Line B Notes;
(f) The Agent shall have received a written certification from
a Responsible Official of Borrower that Borrower and its Subsidiaries are
in compliance with all the terms and provisions of the Loan Documents and
after giving effect to this Seventh Amendment no Default or Event of
Default shall be continuing;
and the satisfaction by the Banks of the following condition:
(g) The applicable Banks shall have made the Adjusting
Purchase Payments as specified in Section 3 hereof.
6. Return of Canceled Notes to Borrower. Upon the effectiveness of this
Seventh Amendment in accordance herewith, including the delivery by Borrower of
all documents required under Section 6 hereof, the Banks shall return the Line A
Notes and Line B Notes that have been replaced pursuant to Section 5(b) hereof
to the Agent for redelivery to Borrower, in each case marked "Canceled."
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7. Amendment to Other Loan Documents. Each of the Loan Documents is hereby
amended such that all references to the Loan Agreement contained therein shall
be deemed to be made with respect to the Loan Agreement as amended hereby. Each
of the Loan Documents are hereby further amended such that any reference
contained therein to any document amended hereby shall be deemed to be made with
respect to such document as amended hereby. Each reference to Loan Documents
generally shall be deemed to include this Seventh Amendment.
8. Loan Documents in Full Force and Effect. Except as modified hereby, the
Loan Documents remain in full force and effect.
9. Effective Dates. Unless otherwise specified herein, and subject to the
satisfaction of all conditions specified in Section 5, each amendment and
modification identified herein shall be deemed effective as of the date of this
Seventh Amendment, provided that the changes to the Pro Rata Shares of the Banks
identified on Annex I hereto shall be deemed effective on the date of the
Adjusting Purchase Payments described in Section 3 of this Seventh Amendment.
10. Governing Law. This Seventh Amendment shall be governed by, and
construed in accordance with, the Laws of the State of California.
11. Severability. If any provision of this Seventh Amendment is held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
12. Counterparts. This Seventh Amendment may be executed in counterparts
and any party may execute any counterpart, each of which shall be deemed to be
an original and all of which, taken together, shall be deemed to be one and the
same document. The execution hereof by any parties shall not become effective
until this Seventh Amendment, and Exhibit A hereto, is executed and delivered by
all parties hereto and thereto.
13. Prior Agreements. This Seventh Amendment contains the entire agreement
between Borrower, the Banks and the Agent with respect to the subject matter
hereof, and all
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prior negotiations, understandings, and agreements with respect thereto are
superseded by this Seventh Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment to be duly executed as of the date first above written.
"Borrower" "Banks"
XXX XXXX CORPORATION BANK ONE, ARIZONA, NA, as a Bank
By: ________________________________ By: ________________________________
Xxxx X. Xxxxxxx
Senior Vice President ________________________________
Printed Name and Title
"Agent"
BANK OF AMERICA NATIONAL
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
TRUST AND SAVINGS ASSOCIATION, as a Bank
as Agent
By: ________________________________
By: ________________________________
________________________________
________________________________ Printed Name and Title
Printed Name and Title
BANKBOSTON, N.A. (formerly known as
"Co-Agent" The First National Bank of Boston)
BANK ONE, ARIZONA, NA, as Co-Agent
By: ________________________________
By: ________________________________ ________________________________
Printed Name and Title
________________________________
Printed Name and Title
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GUARANTY FEDERAL BANK, F.S.B. BANK OF HAWAII
By: ________________________________ By: ________________________________
________________________________ ________________________________
Printed Name and Title Printed Name and Title
CREDIT LYONNAIS LOS ANGELES FIRST UNION NATIONAL BANK,
BRANCH formerly known as First Union National
Bank of North Carolina
By: ________________________________
By: ________________________________
________________________________
Printed Name and Title ________________________________
Printed Name and Title
NATIONSBANK, N.A., formerly known as
NationsBank, N.A. (Carolinas) FLEET NATIONAL BANK
By: ________________________________ By: ________________________________
________________________________ ________________________________
Printed Name and Title Printed Name and Title
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EXHIBIT A
GUARANTORS' CONSENTS
The undersigned do each hereby (a) consent to that certain Seventh
Amendment to Amended and Restated Revolving Loan Agreement, dated as of January
15, 1998, by and among Xxx Xxxx Corporation ("Borrower"), the Banks named
therein, Bank of America National Trust and Savings Association, as Agent, and
Bank One, Arizona, NA, as Co-Agent, including the increase of $50,000,000 in the
Line A Commitment contained therein and (b) reaffirm (i) their respective
obligations under that certain Subsidiary Guaranty, dated as of June 27, 1995,
and (ii) that the Subsidiary Guaranty remains in full force and effect and that,
without limitation, any indebtedness of Borrower represented by the $50,000,000
increase in the Line A Commitment constitutes "Guaranteed Obligations"
thereunder.
Dated: January 15, 1998
Asset One Corp., an Arizona Xxx Xxxx Communities, Inc.,
corporation an Arizona corporation
By: ______________________________
Xxxxxx X. Xxxxxx By: _______________________________
Treasurer Xxxxxx X. Xxxxxx
Treasurer
Xxx Xxxx California Corp.,
an Arizona corporation Xxx Xxxx Conservation Holding Corp., an
Arizona corporation
By: _______________________________
Xxxxxx X. Xxxxxx By: _______________________________
Treasurer Xxxxxx X. Xxxxxx
Treasurer
Xxx Xxxx Commercial Properties
Corporation, an Arizona corporation Xxx Xxxx Home Construction, Inc.,
an Arizona corporation
By: _______________________________
Xxxxxx X. Xxxxxx By: _______________________________
Treasurer Xxxxxx X. Xxxxxx
Treasurer
Exhibit A
Page 1 of 5
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Xxx Xxxx Communities of Nevada, Inc. Xxx Xxxx'x Coventry Homes of Nevada,
(formerly known as Xxx Xxxx Kingswood Inc., an Arizona corporation (formerly
Xxxxx, Inc.), an Arizona corporation known as Xxx Xxxx of Nevada, Inc.)
By: _______________________________ By: _______________________________
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Treasurer Treasurer
The Villages at Desert Hills, Inc. Xxx Xxxx'x Coventry Homes Construction
(formerly known as Xxx Xxxx Lakeview of Tucson Co., an Arizona corporation
Corporation), an Arizona corporation
By: _______________________________
By: _______________________________ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Treasurer
Treasurer
Xxx Xxxx'x Coventry Homes of Tucson,
Xxx Xxxx'x Coventry Homes Construction Inc., an Arizona corporation
Co., an Arizona corporation
By: _______________________________
By: _______________________________ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Treasurer
Treasurer
Del X. Xxxx Cactus Development Corp.,
Xxx Xxxx'x Coventry Homes, Inc., an Arizona corporation
an Arizona corporation
By: _______________________________
By: _______________________________ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Treasurer
Treasurer
Exhibit A
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Del X. Xxxx Development Co., L.P., Fairmount Mortgage, Inc., an Arizona
a Delaware limited partnership corporation
By: Xxx Xxxx Communities, Inc.,
general partner By: _______________________________
Xxxxxxx X. Day
Treasurer
By:________________________
Xxxxxx X. Xxxxxx
Treasurer Xxxx Harbor Joint Venture, an Arizona
general partnership
Del X. Xxxx Foothills Corporation, By: Del E. Xxxx Xxxx Harbor
an Arizona corporation Development Corporation,
general partner
By: _______________________________
Xxxxxx X. Xxxxxx By:_________________________
Treasurer Xxxxxx X. Xxxxxx
Treasurer
Del E. Xxxx Xxxx Harbor Development
Corporation, an Arizona corporation Terravita Commercial Corp., an Arizona
corporation
By: _______________________________
Xxxxxx X. Xxxxxx By: _______________________________
Treasurer Xxxxxx X. Xxxxxx
Treasurer
DW Aviation Co., an Arizona
corporation
Terravita Corp., an Arizona corporation
By: _______________________________
Xxxxxx X. Xxxxxx By: _______________________________
Treasurer Xxxxxx X. Xxxxxx
Treasurer
Exhibit A
Page 3 of 5
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Terravita Home Construction Co., New Mexico Asset Corporation,
an Arizona corporation an Arizona corporation
By: _______________________________ By: _______________________________
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Treasurer Treasurer
Trovas Company, an Arizona corporation Xxx Xxxx Texas Limited Partnership,
an Arizona limited partnership
By: _______________________________ By: Xxx Xxxx Southwest Co.,
Xxxxxx X. Xxxxxx an Arizona corporation
Treasurer
By:_________________________
Trovas Construction Co., an Arizona Xxxxxx X. Xxxxxx
corporation Treasurer
By: _______________________________ New Mexico Asset Limited Partnership
Xxxxxx X. Xxxxxx (formerly known as New Mexico
Treasurer Investment Co. Limited Partnership), an
Arizona limited partnership
Xxx Xxxx Limited Holding Co., By: Xxx Xxxx Corporation, a Delaware
an Arizona corporation corporation
By: _______________________________ By:_________________________
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Treasurer Treasurer
Xxx Xxxx Southwest Co., an Arizona Bellasera Corp., an Arizona corporation
corporation
By: _______________________________
By: _______________________________ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Treasurer
Treasurer
Exhibit A
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Xxx Xxxx'x Sunflower of Tucson, Inc., an
Arizona corporation
By: _______________________________
Xxxxxx X. Xxxxxx
Treasurer
Exhibit A
Page 5 of 5
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EXHIBIT B
LINE A NOTE
$______________ ______________, 1998
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
______________________________________________________ (the "Bank"), the
principal amount of __________________________________________________________
($_____________) or such lesser aggregate amount of Advances as may be made by
the Bank with respect to the Line A Commitment under the Loan Agreement referred
to below, together with interest on the principal amount of each Advance made
hereunder and remaining unpaid from time to time from the date of each such
Advance until the date of payment in full, payable as hereinafter set forth.
Reference is made to the Amended and Restated Revolving Loan
Agreement, dated as of June 27, 1995, as amended by that certain First Amendment
to Amended and Restated Revolving Loan Agreement, dated as of December 15, 1995,
that certain Second Amendment to Amended and Restated Revolving Loan Agreement,
dated as of July 22, 1996, that certain Third Amendment to Amended and Restated
Revolving Loan Agreement, dated as of March 31, 1997, that certain Fourth
Amendment to Amended and Restated Revolving Loan Agreement, dated April 29,
1997, that certain Fifth Amendment to Amended and Restated Revolving Loan
Agreement, dated October 1, 1997, that certain Sixth Amendment to Amended and
Restated Revolving Loan Agreement, dated as of December 1, 1997 and that certain
Seventh Amendment to Amended and Restated Revolving Loan Agreement, of even date
herewith, by and among the undersigned, as Borrower, the Banks which are parties
thereto, Bank One, Arizona, NA, as Co-Agent, and Bank of America National Trust
and Savings Association, as Agent for the Banks (as so amended, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings given those terms in the Loan
Agreement. This is one of the Line A Notes referred to in the Loan Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified or amended. The Loan Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and conditions
therein specified.
The principal indebtedness evidenced by this Line A Note shall be
payable as provided in the Loan Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of Advances from the date of each such Advance until payment in full and
shall accrue and be
Exhibit B
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payable at the rates and on the dates set forth in the Loan Agreement both
before and after default and before and after maturity and judgment, with
interest on overdue principal and interest to bear interest at the rate set
forth in Section 3.7 of the Loan Agreement, to the fullest extent permitted by
applicable Law.
Each payment hereunder shall be made to the Agent at the Agent's
Office for the account of the Bank in immediately available funds not later than
11:00 a.m. (San Francisco time) on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m. (San Francisco time) on any
particular Banking Day shall be deemed received on the next succeeding Banking
Day. All payments shall be made in lawful money of the United States of America.
The Bank shall use its best efforts to keep a record of Advances
made by it and payments received by it with respect to this Line A Note, and
such record shall be presumptive evidence of the amounts owing under this Line A
Note.
The undersigned hereby promises to pay all costs and expenses of any
rightful holder hereof incurred in collecting the undersigned's obligations
hereunder or in enforcing or attempting to enforce any of such holder's rights
hereunder, including reasonable attorneys' fees and disbursements, whether or
not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line A Note shall be delivered to and accepted by the Bank in
the State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
This Line A Note replaces, amends and restates that certain Line A
Note, dated as of October 1, 1997, in the principal amount of $____________,
heretofore delivered by the undersigned to the Bank pursuant to the Loan
Agreement.
XXX XXXX CORPORATION,
a Delaware corporation
By: _____________________________________
_____________________________________
Printed Name and Title
Exhibit B
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EXHIBIT C
LINE B NOTE
$_____________ ______________, 1998
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
________________________________________________________ (the "Bank"), the
principal amount of _______________________________________________________
($____________) or such lesser aggregate amount of Advances as may be made by
the Bank with respect to the Line B Commitment under the Loan Agreement referred
to below, together with interest on the principal amount of each Advance made
hereunder and remaining unpaid from time to time from the date of each such
Advance until the date of payment in full, payable as hereinafter set forth.
Reference is made to the Amended and Restated Revolving Loan
Agreement, dated as of June 27, 1995, as amended by that certain First Amendment
to Amended and Restated Revolving Loan Agreement, dated as of December 15, 1995,
that certain Second Amendment to Amended and Restated Revolving Loan Agreement,
dated as of July 22, 1996, that certain Third Amendment to Amended and Restated
Revolving Loan Agreement, dated as of March 31, 1997, that certain Fourth
Amendment to Amended and Restated Revolving Loan Agreement, dated April 29,
1997, that certain Fifth Amendment to Amended and Restated Revolving Loan
Agreement, dated October 1, 1997, that certain Sixth Amendment to Amended and
Restated Revolving Loan Agreement, dated as of December 1, 1997 and that certain
Seventh Amendment to Amended and Restated Revolving Loan Agreement, of even date
herewith, by and among the undersigned, as Borrower, the Banks which are parties
thereto, Bank One, Arizona, NA, as Co-Agent, and Bank of America National Trust
and Savings Association, as Agent for the Banks (as so amended, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings given those terms in the Loan
Agreement. This is one of the Line B Notes referred to in the Loan Agreement,
and any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified or amended. The Loan Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and conditions
therein specified.
The principal indebtedness evidenced by this Line B Note shall be
payable as provided in the Loan Agreement and in any event on the Maturity Date.
Exhibit C
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Interest shall be payable on the outstanding daily unpaid principal
amount of Advances from the date of each such Advance until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue principal and interest to bear interest at
the rate set forth in Section 3.7 of the Loan Agreement, to the fullest extent
permitted by applicable Law.
Each payment hereunder shall be made to the Agent at the Agent's
Office for the account of the Bank in immediately available funds not later than
11:00 a.m. (San Francisco time) on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m. (San Francisco time) on any
particular Banking Day shall be deemed received on the next succeeding Banking
Day. All payments shall be made in lawful money of the United States of America.
The Bank shall use its best efforts to keep a record of Advances
made by it and payments received by it with respect to this Line B Note, and
such record shall be presumptive evidence of the amounts owing under this Line B
Note.
The undersigned hereby promises to pay all costs and expenses of any
rightful holder hereof incurred in collecting the undersigned's obligations
hereunder or in enforcing or attempting to enforce any of such holder's rights
hereunder, including reasonable attorneys' fees and disbursements, whether or
not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Line B Note shall be delivered to and accepted by the Bank in
the State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
This Line B Note replaces, amends and restates that certain Line B
Note, dated as of October 1, 1997 in the principal amount of $_______________ ,
heretofore delivered by the undersigned to the Bank pursuant to the Loan
Agreement.
XXX XXXX CORPORATION,
a Delaware corporation
By: _____________________________________
_____________________________________
Printed Name and Title
Exhibit C
Page 2 of 2
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ANNEX I
XXX XXXX CORPORATION
BANK GROUP COMMITMENTS
Total Prior Increase in
Line "A" Line "B" Commitment Commitment Aggregate
Syndicate Bank Pro Rata Share $307,000,000 $93,000,000 $400,000,000 $350,000,000 Commitment
-------------- -------------- ------------ ----------- ------------ ------------ ----------
Bank of America NT & SA 20.00% $ 61,400,000 $ 18,600,000 $ 80,000,000 $ 85,000,000 --
Bank One, Arizona, NA 16.25% 49,887,500 15,112,500 65,000,000 65,000,000 --
NationsBank, N.A. 12.50% 38,375,000 11,625,000 50,000,000 45,000,000 $ 5,000,000
Guaranty Federal Bank, F.S.B. 12.50% 38,375,000 11,625,000 50,000,000 40,000,000 10,000,000
BankBoston, N.A. 10.00% 30,700,000 9,300,000 40,000,000 35,000,000 5,000,000
First Union National Bank 7.50% 23,025,000 6,975,000 30,000,000 25,000,000 5,000,000
Bank of Hawaii 7.50% 23,025,000 6,975,000 30,000,000 20,000,000 10,000,000
Fleet National Bank 8.75% 26,862,500 8,137,500 35,000,000 20,000,000 15,000,000
Credit Lyonnais 5.00% 15,350,000 4,650,000 20,000,000 15,000,000 5,000,000
TOTAL: 100.00% $307,000,000 $ 93,000,000 $400,000,000 $350,000,000
Annex I
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ANNEX II
ADJUSTING PURCHASE PAYMENTS
Aggregate Principal Balance of existing Promissory Notes immediately prior to
effective date of Seventh Amendment - $271,000,000 ("Carryover Principal
Balance").
Banks Making Former Share New Share of
Adjusting of Carryover Former Carryover New Adjusting Purchase Adjusting Purchase
Purchase Payments Principal Balance Pro Rata Share Principal Balance Pro Rata Share Payment to Pay Payment to Receive
----------------- ----------------- -------------- ----------------- -------------- -------------- ------------------
Bank of Hawaii $ 15,485,714 5.71428571% $ 20,325,000 7.50% $ 4,839,286
First Union National 19,357,143 7.14285714% 20,325,000 7.50% 967,857
Bank
Fleet National Bank 15,485,714 5.71428571% 23,712,500 8.75% 8,226,786
Guaranty Federal, 30,971,428 11.42857143% 33,875,000 12.50% 2,903,572
F.S.B.
BankBoston, N.A. 27,100,000 10.00000000% 27,100,000 10.00% -0- -0-
Credit Lyonnais 11,614,286 4.28571429% 13,550,000 5.00% 1,935,714
Banks Receiving Adjusting Purchase Payments
Bank of America 65,814,286 24.28571429% 54,200,000 20.00% 11,614,286
Bank One, 50,328,572 18.57142857% 44,037,500 16.25% 6,291,072
Arizona, NA
NationsBank, N.A. 34,842,857 12.85714286% 33,875,000 12.50% 967,857
TOTAL: $271,000,000 100.000000% $271,000,000 100.00000000% $ 18,873,215 $ 18,873,215
Annex II
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19
ANNEX III
SUBSIDIARIES
Annex III
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