EXHIBIT 4.2
PROMISSORY NOTE
$ June 24, 1998
------------------ 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 OF ARIZONA, INC., a Delaware corporation, formerly known
as Richmond American Homes, Inc., and RICHMOND AMERICAN HOMES OF COLORADO, INC.,
a Delaware corporation, formerly known as Richmond Homes, Inc. I (collectively
"Makers" and severally a "Maker"), hereby promise and agree to pay to the order
of ("Payee"), the principal sum of
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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 10, 1996, among Makers, Bank One, Arizona,
NA, as Agent, and the Banks named therein, as thereafter modified (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 marshaling; (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.
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
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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.
This Note amends and restates and replaces that Promissory
Note (the "Existing Note") dated June 2, 1998 in the principal amount of
$ , executed by Makers and payable to Payee. All indebtedness of
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Makers under the Existing Note shall automatically and without further action
become indebtedness advanced under this Note.
ATTEST: RICHMOND AMERICAN HOMES OF
CALIFORNIA, INC., a Colorado corporation
By: By:
-------------------------- ---------------------------
Name: Kenneth J. Ryerson Name: John J. Heaney
Title: Vice President Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES OF
MARYLAND, INC., a Maryland corporation
By: By:
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Name: Kenneth J. Ryerson Name: John J. Heaney
Title: Vice President Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES OF NEVADA,
INC., a Colorado corporation
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By: By:
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Name: Kenneth J. Ryerson Name: John J. Heaney
Title: Vice President Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES OF VIRGINIA,
INC., a Virginia corporation
By: By:
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Name: Kenneth J. Ryerson Name: John J. Heaney
Title: Vice President Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES OF ARIZONA, INC.,
a Delaware corporation, formerly known as
Richmond American Homes, Inc.
By: By:
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Name: Kenneth J. Ryerson Name: John J. Heaney
Title: Vice President Title: Vice President
ATTEST: RICHMOND AMERICAN HOMES OF COLORADO,
INC., a Delaware corporation, formerly
known as Richmond Homes, Inc. I,
successor by merger to Richmond Homes,
Inc. II
By: By:
-------------------------- ----------------------------
Name: Kenneth J. Ryerson Name: John J. Heaney
Title: Vice President Title: Vice President
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SCHEDULE TO PROMISSORY NOTE
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ADVANCES PAYMENTS APPLICATION
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Floating Rate Letter of Credit
LIBOR Advances Advances Advances
DATE PRINCIPAL TYPE (LIBOR, INTEREST PERIOD DATE AMOUNT PRINCIPAL INTEREST PRINCIPAL INTEREST PRINCIPAL INTEREST
AMOUNT Floating Rate, (LIBOR Advances)
Letter of Credit
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