Exhibit 4.5
EXHIBIT "E"
PROMISSORY NOTE
$______________ April ___, 1996
Phoenix, Arizona
FOR VALUE RECEIVED, RICHMOND AMERICAN HOMES OF CALIFORNIA,
INC., a Colorado corporation, RICHMOND AMERICAN HOMES OF MARYLAND, INC., a
Maryland corporation, RICHMOND AMERICAN HOMES OF NEVADA, INC., a Colorado
corporation, RICHMOND AMERICAN HOMES OF VIRGINIA, INC., a Virginia corporation,
RICHMOND AMERICAN HOMES, INC., a Delaware corporation, RICHMOND HOMES, INC. I, a
Delaware corporation, and RICHMOND HOMES, INC., II, a Delaware corporation
(collectively "Makers" and severally a "Maker"), hereby
promise and agree to pay to the order of __________________________________
("Payee"), the principal sum of _____________________________________ DOLLARS
($_____________) in lawful money of the United States of America, or, if less
than such principal amount, the aggregate unpaid principal amount of all
Advances made to Makers by the Payee pursuant to the Credit Agreement
hereinafter referenced. Such payment shall be made on the Facility Termination
Date, as defined in the Credit Agreement.
Makers shall pay interest from the date hereof on the unpaid
principal amount of this Note from time to time outstanding during the period
from the date hereof until such principal amount is paid in full at the rates,
determined in the manner, and on the dates or occurrences specified in the
Credit Agreement (as hereinafter defined).
This promissory note is one of the Notes referred to in the
Credit Agreement dated as of April ___, 1996, among Makers, Bank One, Arizona,
NA, as Agent, and the Banks named therein (as the same may be amended, modified,
replaced, or renewed from time to time, the "Credit Agreement") and is entitled
to the benefits of the Credit Agreement and the Loan Documents. Capitalized
terms used in this Note without definition shall have the same meanings as are
ascribed to such terms in the Credit Agreement.
Both principal and interest are payable to the Agent for the
account of Payee pursuant to the terms of the Credit Agreement. All Advances
made by Payee pursuant to the Credit Agreement and all payments of the principal
amount of such Advances, shall be endorsed by the holder of this Note on the
schedule attached hereto. Failure to record such Advances or payment shall not
diminish any rights of Payee or relieve Makers of any liability hereunder or
under the Credit Agreement. This Note is subject to prepayment and its maturity
is subject to acceleration, in each case upon the terms provided in the Credit
Agreement.
This Note may not be modified or discharged orally, by course
of dealing or otherwise, but only by a writing duly executed by the holder
hereof.
In the event that any action, suit or proceeding is brought by
the holder hereof to collect this Note, Makers agree to pay and shall be liable
for all costs and expenses of collection, including without limitation,
reasonable attorneys' fees and disbursements.
Makers and all sureties, guarantors and/or endorsers hereof (or of any
obligation hereunder) and accommodation parties hereon (all of which, including
Makers, are severally each hereinafter called a "Surety") each: (a) agree that
the liability under this Note of all parties hereto is several except as set
forth in Section 12.7 of the Credit Agreement; (b) severally waive any homestead
or exemption laws and right thereunder affecting the full collection of this
Note; (c) severally waive any and all formalities in connection with this Note
to the maximum extent allowed by law, including (but not limited to) demand,
diligence, presentment for payment, protest and demand, and notice of extension,
dishonor, protest, demand and nonpayment of this Note; and (d) consent that
Holder may extend the time of payment or otherwise modify the terms of payment
of any part or the whole of the debt evidenced by this Note, at the request of
any other person liable hereon, and such consent shall not alter nor diminish
the liability of any person hereon.
In addition, each Surety waives and agrees not to assert: (a) any right
to require the holder hereof to proceed against any other Surety, to proceed
against or exhaust any security for the Note, to pursue any other remedy
available to the holder hereof, or to pursue any remedy in any particular order
or manner; (b) the benefit of any statute of limitations affecting its liability
hereunder or the enforcement hereof; (c) the benefits of any legal or equitable
doctrine or principle of marshalling; (d) notice of the existence, creation or
incurring of new or additional indebtedness of any Maker to the holder hereof;
(e) the benefits of any statutory provision limiting the liability of a surety,
including without limitation the provisions of Sections 12-1641, et seq., of the
Arizona Revised Statutes; (f) any defense arising by reason of any disability or
other defense of any Maker or by reason of the cessation from any cause
whatsoever (other than payment in full) of the liability of any Maker for
payment of this Note; and (g) the benefits of any statutory provision limiting
the right of the holder hereof to recover a deficiency judgment, or to otherwise
proceed against any person or entity obligated for payment of this Note, after
any foreclosure or trustee's sale of any security for this Note, including
without limitation the benefits, if any, to a Surety of Arizona Revised Statutes
Section 33-814. Until payment in full of this Note and the holder hereof has no
obligation to make any further advances of the proceeds hereof, no Surety shall
have any right of subrogation and each hereby waives any right to enforce any
remedy which the holder hereof now has, or may hereafter have, against Maker or
any other Surety, and waives any benefit of, and any right to participate in,
any security now or hereafter held by the holder hereof.
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Each Maker agrees that to the extent any Surety makes any payment to
the holder hereof in connection with the indebtedness evidenced by this Note,
and all or any part of such payment is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid by Holder or paid
over to a trustee, receiver or any other entity, whether under any bankruptcy
act or otherwise (any such payment is hereinafter referred to as a "Preferential
Payment"), then the indebtedness of Makers under this Note shall continue or
shall be reinstated, as the case may be, and, to the extent of such payment or
repayment by the holder hereof, the indebtedness evidenced by this Note or part
thereof intended to be satisfied by such Preferential Payment shall be revived
and continued in full force and effect as if said Preferential Payment had not
been made.
This Note has been delivered in the City of Phoenix and State
of Arizona, and shall be enforced under and governed by the laws of the State of
Arizona applicable to contracts made and to be performed entirely within said
state, without references to any choice or conflicts of law principles.
Notwithstanding anything in this Note to the contrary, except
as otherwise indicated in Section 12.7 of the Credit Agreement, the obligations
of Makers under this Note shall not be the joint obligations of Makers, but
shall instead be the several obligations of each Maker. Each Maker shall only be
obligated to pay principal, interest, and other amounts that relate to Advances
made to such Maker, or that relate to Property owned by such Maker, or that
relate to such Maker's obligations under the Credit Agreement, this Note and the
other Loan Documents.
ATTEST: RICHMOND AMERICAN HOMES OF
CALIFORNIA, INC., a Colorado corporation
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By:
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Name: John J. Heaney
Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES OF
MARYLAND, INC., a Maryland corporation
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By:
---------------------------------
Name: John J. Heaney
Title: Vice President
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ATTEST: RICHMOND AMERICAN HOMES OF NEVADA,
INC., a Colorado corporation
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By:
--------------------------------
Name: John J. Heaney
Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES OF VIRGINIA,
INC., a Virginia corporation
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By:
--------------------------------
Name: John J. Heaney
Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES, INC., a
Delaware corporation
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By:
-------------------------------
Name: John J. Heaney
Title: Vice President
ATTEST: RICHMOND HOMES, INC. I, a Delaware
corporation
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By:
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Name: John J. Heaney
Title: Vice President
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ATTEST: RICHMOND HOMES, INC., II, a Delaware
corporation
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By:
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Name: John J. Heaney
Title: Vice President
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