SECOND AMENDMENT AGREEMENT
THIS SECOND AMENDMENT AGREEMENT dated as of _______________, 199_ is
entered into by and among:
UNITED HOMES, INC., an Illinois corporation;
UNITED HOMES, INC., an Arizona corporation;
UNITED HOMES OF ILLINOIS, INC., an Illinois corporation and
UNITED HOMES OF MICHIGAN, INC., a Michigan corporation,
(collectively, the "Borrower");
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(collectively, the "Guarantors" and individually a "Guarantor"); and
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
(the "Lender").
W I T N E S S E T H, That:
A. WHEREAS, Lender originally made a revolving acquisition,
development and construction loan to Borrower in the original principal
amount of Twenty-Five Million Dollars ($25,000,000.00) (the "Project Loan")
pursuant to the terms of the Loan Agreement dated as of May 28, 1996 (the
"Original Project Loan Agreement") and in connection therewith, Borrower has
made, executed and delivered to Lender that certain Promissory Note dated
May 28, 1996 (the "Original Project Note") payable to the order of Lender in
the principal amount of Twenty-Five Million Dollars ($25,000,000.00).
B. WHEREAS, Lender originally made a revolving construction loan to
Borrower in the original principal amount of Twenty-Five Million Dollars
($25,000,000.00) (the "ABF Loan") pursuant to the terms of the Loan Agreement
dated as of March 14, 1997 (the "Original ABF Loan Agreement") and in
connection therewith, Borrower has made, executed and delivered to Lender
that certain Revolving Promissory Note dated March 14, 1997 (the "Original
ABF Note") payable to the order of Lender in the principal amount of
Twenty-Five Million Dollars ($25,000,000.00).
C. WHEREAS, Lender has made a working capital loan to Borrower in the
principal amount of Seven Million Dollars ($7,000,000.00) (the "Working
Capital Loan") and in connection therewith Borrower has made, executed and
delivered to Lender that certain Promissory Note dated June 9, 1998 (the
"Present Working Capital Note") payable to the order
of Lender in the principal amount of Seven Million Dollars ($7,000,000.00).
D. WHEREAS, Borrower and Lender have executed and delivered an
Amendment Agreement dated June 9, 1998 (the "First Amendment") providing,
among other things, for (a) the increase to $55,000,000.00 of the maximum
aggregate principal amount of the Project Loan and ABF Loan together, (b) the
amendment and modification as set forth therein of the Original Project Loan
Agreement, the Original ABF Loan Agreement, the Original ABF Note and the
Original Project Note (as so amended, respectively, the "Present Project Loan
Agreement", the "Present ABF Loan Agreement" and "Present ABF Note"; and (c)
the amendment and modification of certain other instruments evidencing,
governing, securing or related to the Project Loan, the ABF Loan and the
Working Capital Loan (generally, the "Present Ancillary Loan Documents")
E. WHEREAS, Borrower has requested Lender to modify and amend the
Present Project Loan Agreement, the Present ABF Loan Agreement, the Present
Working Capital Note and the Present Ancillary Loan Documents, in the manner
and to the extent hereinafter set forth.
F. WHEREAS, Guarantors have heretofore executed and delivered to
Lender a certain Guaranty Agreement (the "Guaranty") wherein the Guarantors,
jointly and severally, guarantee the Present Working Capital Loan and all
amounts payable under and agreements of Borrower pursuant to the Present
Working Capital Note.
G. WHEREAS, Borrower and Guarantors have requested Lender to execute
and deliver this Second Amendment Agreement to modify and amend certain of
the provisions of the Present Project Loan Agreement, the Present ABF Loan
Agreement, the Present Working Capital Note and the Present Ancillary Loan
Documents and instruments relating thereto, all in the manner and to the
extent hereinafter set forth.
H. WHEREAS, Lender is willing to make the requested amendment upon
and subject to the terms and conditions set forth in this Second Amendment
Agreement, including the amendment and modification of the Guaranty as set
forth herein.
NOW, THEREFORE, in consideration of the RECITALS and of the covenants
and agreements herein contained, and for Ten Dollars ($10.00) and other good
and valuable considerations in hand paid by each party hereto to the other,
the receipt and sufficiency of all of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. RECITALS. The foregoing recitals hereto constitute part of this
Agreement.
2. CERTAIN DEFINITIONS. For the purposes hereof, except as otherwise
set forth herein, terms defined in the First Amendment, when used herein,
shall have the meanings so defined, except that:
(a) All references to the Project Loan Agreement shall be deemed
references to the Present Project Loan Agreement as modified and amended
by this Second
Amendment and as the same may be further amended or modified from time
to time;
(b) All references to the ABF Loan Agreement shall be deemed
references to the Present ABF Loan Agreement as modified and amended by
this Second Amendment, and as the same may be further amended or modified
from time to time;
(c) All references to the Working Capital Note shall be deemed
references to the Present Working Capital Note as hereby modified and
amended and as the same may hereafter be modified and amended;
(d) All references to any Ancillary Loan Document shall be deemed
references to such Present Ancillary Loan Document as modified and amended
by this Second Amendment Agreement and as the same may be further amended
or modified from time to time;
(e) "Event of Default" shall include any event or condition which
constitutes a default hereunder.
3. CONCERNING THE WORKING CAPITAL LOAN. It is agreed that:
(a) As at the date hereof, the outstanding principal balance of the
Working Capital Loan is $_________;
(b) Notwithstanding anything to the contrary contained in the
Working Capital Loan, from and after the date hereof Lender shall have no
obligation to make any other or further advances or disbursements (or
re-advances or re-disbursements) of the Working Capital Loan, including but
not limited to, any re-advance or re-disbursement of amounts heretofore or
hereafter repaid upon the Working Capital Loan;
(c) Borrower hereby covenants and agrees that Borrower shall pay to
Lender as a mandatory principal payment upon the Working Capital Loan:
(i) $2,000,000.00 upon the closing of the sale of Borrower's
property known as Sierra Vista;
(ii) $2,000,000.00 upon the sale or transfer by Borrower of
its interest in the Agreement of Purchase and Sale referred to in
item 6 of Schedule I hereto or sale by Borrower of the property
described in said Agreement of Purchase and Sale after the same has
been acquired by or for the benefit of Borrower;
(iii) The entire outstanding principal balance of the Working
Capital Loan in the event that Borrower shall obtain a credit
facility (the "▇▇▇▇ Facility") from ▇▇▇▇▇▇▇ ▇▇▇▇, Strategic Capital
Funding, Inc. or any entity affiliated with them or either of them
(generally "▇▇▇▇");
provided that in the event that the Working Capital Loan is paid in full
prior to June 30,
1999 and no Event of Default has occurred and is continuing, Borrower
shall have no obligation to pay to Lender any amount derived from the
closing of the transactions referred to in clauses (i), (ii) and (iii)
above;
(d) Subject to compliance by Borrower with all of the Conditions
Precedent set forth in Section 8 hereof, the Maturity Date of the Working
Capital Loan shall be extended to June 30 1999;
(e) The provisions of this Section 3, other than the provisions of
Subsection (d) hereof shall take effect immediately; and the provisions of
Subsection (d) hereof shall take effect only on the Compliance Date
specified in Section 8 hereof, if it shall occur;
(f) Borrower hereby restates all of Borrower's representations and
warranties contained in the Working Capital Note, except to the extent
modified herein, as fully and with the same effect as if set forth herein
and made on the date hereof;
(g) The Working Capital Note shall be deemed modified and amended
to give effect to the foregoing provisions of this Section.
4. CONCERNING THE ABF LOAN. The parties hereto agree that:
(a) Lender has executed and delivered to and with Borrower and
Guarantors a certain letter agreement dated December 22, 1998 (the "Letter
Agreement") which Letter Agreement provides that during the period (the
"Interim Period") commencing December 4, 1998 and ending on the Compliance
Date (if such shall occur) or January 15, 1999 (whichever first occurs),
the Borrowing Base Amount for the ABF Loan is to be calculated as if the
percentage "75%" appearing in clause 3 of Section 3.6(b) of the ABF Loan
Agreement reads "80%" and the percentage "80%" appearing in clause 4 of
said Section 3.6(b) reads "85%"; provided that Borrower and Guarantors
hereby agree that such agreement on the part of Lender was a matter of
grace and that Lender was under no obligation so to do and is under no
obligation to continue so to do;
(b) Subject to the satisfaction of the Conditions Precedent prior
to the Satisfaction Date, during the period (the "Extension Period")
commencing on the Compliance Date and continuing until the date (the
"Termination Date") which is the earlier of an Event of Default or June 30,
1999:
(i) The percentage "75%" appearing in clause 3 of Section 3.6
of the ABF Loan Agreement shall be deemed to read "85%";
(ii) The percentage "80%" appearing in clause 4 of said
Section 3.6 shall be deemed to read "90%";
(c) In all events the modifications to Section 3.6 of the ABF Loan
Agreement effected pursuant to the Letter Agreement and pursuant to Section
(b) above shall terminate on the Termination Date, and thereafter the
calculation of the Borrowing Base
Amount shall be as set forth in Section 3.6 of the Present ABF Loan
Agreement without reference to the Letter Agreement and Subsection (b)
above;
(d) Notwithstanding anything to the contrary in the Present ABF
Loan Agreement, in the Letter Agreement or herein contained, in the event
that the ▇▇▇▇ Credit Facility shall be closed, Lender, in its sole and
absolute discretion, may elect to modify, change or adjust the percentages
and manner of calculation of the Borrowing Base Amount including the
percentages set forth in clauses 3 and 4 of Section 3.6 of the Present ABF
Loan Agreement, as modified in the Letter Agreement and in Subsection (b)
above, to such method of calculation and to such percentages as Lender may
in its sole discretion deem appropriate; provided that such percentages
shall not be less favorable to Borrower than as set forth in said clauses 3
and 4 of Section 3.6 of the Present ABF Loan Agreement.
(e) The provisions of this Section 4, other than the provisions of
Subsection (b) hereof shall take effect immediately; and the provisions of
Subsection (b) hereof shall take effect upon the Compliance Date, if it
shall occur;
(f) Notwithstanding anything to the contrary contained in the
Present ABF Loan Agreement, Lender shall not be obligated or required to
make any disbursement of the ABF Loan in connection with any additional
Projects;
(g) Borrower hereby restates all of Borrower's representations and
warranties contained in the Present ABF Loan Agreement, except to the
extent modified herein, as fully and with the same effect as if set forth
herein and made on the date hereof; and
(h) The Present ABF Loan Agreement shall be deemed amended to give
effect to the foregoing provisions.
5. CONCERNING THE PROJECT LOAN AGREEMENT. The parties hereby agree
that:
(a) Notwithstanding anything to the contrary contained in the
Present Project Loan Agreement, Lender shall not be obligated or required
to make any disbursement of the Project Loan in connection with any
additional Projects;
(b) The provisions of Section 5(a) hereof shall take effect
immediately;
(c) Borrower hereby restates all of Borrower's representations and
warranties contained in the Present Project Loan Agreement, except to the
extent modified herein, as fully and with the same effect as if set forth
herein and made on the date hereof; and
(d) The Present Project Loan Agreement shall be deemed modified and
amended to give effect to the foregoing provisions.
6. CONCERNING FINANCIAL COVENANTS. Subject to the satisfaction of the
Conditions Precedent on or prior to the Satisfaction Date, then, notwithstanding
anything to the contrary
contained in the Present Project Loan Agreement and the ABF Loan Agreement:
(a) During the Extension Period, the ratio (the "Liabilities/Net
Worth Ratio") of Borrower's total liabilities (reported on a consolidated
basis) to its Adjusted Net Worth shall be equal to or less than 6.25 to
1.00, notwithstanding the provisions of Section 5.4(c) of each of the
Present Project Loan Agreement and Present ABF Loan Agreement; provided
that from and after the Termination Date, such ratio shall not exceed 5.0
to 1.0;
(b) Notwithstanding the fact that the making of the Special Loans
(hereinafter defined) may violate the restrictions imposed upon Borrower by
Section 5.3 of each of the Present Project Loan Agreement and Present ABF
Loan Agreement, Lender hereby waives any present such violation (if the
same has occurred) and agrees that the outstanding principal amount of
Loans receivable by Borrower as described as Item 1 in Schedule I hereto
(the "Special Loans"), not exceeding $7,972,471 in principal amount, may be
included, at such values as may be approved by Lender, as assets of
Borrower for the purpose of determining its compliance with the financial
covenants (the "Financial Covenants") set forth in each of the Project Loan
Agreement and ABF Loan Agreement; provided that Borrower shall not make any
redisbursements, replacements, extensions, increases or any other changes
in any of the Special Loans or any instrument evidencing or securing the
same and shall not make any other or further transfers, pledges or loans in
violation of the provisions of Section 5.4 of each of the Project Loan
Agreement and ABF Loan Agreement;
(c) From and after the date hereof:
(i) Minority interests owned by Borrower in other entities,
valued as may be approved by Lender, may be included as equity of the
Borrower for the purposes of calculating the Liabilities/Net Worth
Ratio
(ii) In all events the subordinated debt incurred by Borrower
pursuant to the terms of a public offering completed through ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ Financial, Inc. shall be included as a debt of the Borrower
for the purpose of any calculation relating to Financial Covenants;
(d) After the Termination Date, Borrower shall comply with each of
the Financial Covenants contained in the Present Project Loan Agreement and
Present ABF Loan Agreement, without regard to the modifications and
amendments provided for in this Section 6;
(e) The Present Project Loan Agreement and the Present ABF Loan
Agreement shall be deemed modified and amended in the manner and to the
extent set forth in this Section on the Compliance Date, but only if the
Compliance Date shall occur.
7. AGREEMENT OF GUARANTORS. The Guarantors, and each of them, jointly
and severally hereby agree as follows, to take effect immediately:
(a) The Guarantors hereby consent to the execution and delivery by
the Borrower of the Letter Agreement and this Second Amendment Agreement,
and jointly and severally agree that the Guaranty as hereby amended shall
be and remain in effect and shall not be modified, amended, affected or
terminated by reason of the execution and delivery hereof or the carrying
out of the terms, provisions and agreements contained herein;
(b) Guarantors represent and warrant that the execution and
delivery of the Letter Agreement, the modification and amendment of the
Present Working Capital Note, the Present Project Loan Agreement, the
Present ABF Loan Agreement and Present Ancillary Loan Documents as provided
for herein, and the agreement of Lender to make and advance additional
amounts of the ABF Loan pursuant to the Borrowing Base Amount calculated as
set forth in the Letter Agreement and in Section 4 hereof are and will be
of substantial economic benefit to the Guarantors and each of them;
(c) Guarantors and each of them jointly and severally agree that
the Guaranty shall and will hereafter, except as released as provided in
Section 11 hereof, constitute a guarantee not only of the Working Capital
Loan but also of all outstanding amounts of the Project Loan and the ABF
Loan now or hereafter outstanding pursuant to the Project Loan Agreement
and the ABF Loan Agreement;
(d) Guarantors and Lender hereby agree that to give effect to the
provisions of this Section 7, (i) clause A of the Recital to the Guaranty
is hereby deleted in its entirety, and there is substituted in lieu thereof
a new clause A to read as follows:
"A. UNITED HOMES, INC., an Illinois corporation; UNITED HOMES, INC.,
an Arizona corporation; UNITED HOMES OF ILLINOIS, INC., an Illinois
corporation and UNITED HOMES OF MICHIGAN, INC., a Michigan
corporation, (collectively, the "Borrower") has or may become
indebted to Lender for one or more loans (collectively, the "Loan")
made or to be made by Lender to Borrower pursuant to one or more of
the following instruments (together, whether one or more and however
termed, called the "Note"):
(a) Borrower's Note dated June 9, 1998 in the stated
principal sum of $7,000,000 payable to Lender's order, as
amended by the Amendments hereinafter referred to;
(b) Loan Agreement dated May 28, 1996 between Borrower and
Lender, as amended by the Amendments and Loan Agreement dated
March 14, 1997, as amended by the amendments, and all notes,
security instruments and other documents delivered in
connection therewith, relating to two separate loans to
aggregate in all not to exceed $55,000,000, made and to be made
by Lender to Borrower and known, respectively, as the Project
Loan and the ABF Loan;
(c) Amendment Agreement dated June 9, 1998, Letter Agreement
dated December 22, 1998 and Second Amendment Agreement dated
__________. 199_ (together, the "Amendments") relating to the
instruments referred to in clauses (a) and (b) above.";
and (ii) Section 2(c) of the Guaranty is hereby deleted in its entirety;
(e) In all other respects the Guaranty as hereby amended is
approved ratified and confirmed; it being intended that from and after the
date hereof, and whether or not the Conditions Precedent shall be satisfied
the Guaranty, as amended hereby, shall be the joint and several guaranty of
Guarantors of the aggregate of the Working Capital Loan, ABF Loan and
Project Loan as may be now or hereafter outstanding and of all obligations
and undertakings evidencing, securing and governing the same, as fully and
with the same effect as if the same had been originally referred to and
specified in the Guaranty as Guaranteed Debt;
(f) Guarantors hereby restate herein all of their representations,
warranties, waivers and agreements set forth in the Guaranty as fully and
with the same effect as if set forth herein at length and made on the date
hereof.
8. CONDITIONS PRECEDENT. The following shall be conditions precedent
(the "Conditions Precedent") to the effectiveness of certain provisions hereof;
and such Conditions Precedent shall be satisfied, if at all, on or before
January 15, 1999 (the "Satisfaction Date"; and the date on or prior to the
Satisfaction Date upon which the Conditions Precedent shall be satisfied and
complied with being called the "Compliance Date"):
(a) Borrower shall or shall cause the owner thereof to mortgage,
pledge, hypothecate and grant a security interest to Lender in all of the
property, rights and interests (the "Additional Collateral") described in
Schedule I attached hereto and made a part hereof, all pursuant to
instruments in form and substance satisfactory to Lender (the "Additional
Collateral Documents");
(b) Borrower shall deliver to Lender evidence that the Additional
Collateral Documents, including acknowledgments of third parties,
constitute and create a valid, first and perfected lien and security
instruments in the Additional Collateral in favor of Lender;
(c) Borrower shall deliver to Lender such evidence as Lender may
require concerning the due and lawful power and authority of Borrower, the
Guarantors and each other party executing this Agreement and any Additional
Collateral Document, to execute and deliver this Agreement and/or such
Additional Collateral Documents and to pledge the Additional Collateral as
provided for herein and therein;
(d) Borrower shall deliver to Lender a favorable opinion of
counsel acceptable to Lender, and in form and substance acceptable to
Lender, confirming the corporate or other entity existence of each
constituent of Borrower and each party to any
of the Additional Collateral Documents, the due execution and delivery
thereof by each such person and entity, the valid and binding effect
thereof, and as to all matters relating to the transactions contemplated
herein;
(e) Borrower shall deliver to Lender such other agreements,
certificates and documents relating to the transactions contemplated herein
as Lender may in its sole and absolute discretion require;
(f) Borrower shall have paid all costs and expenses (including
legal fees and disbursements) incurred by Lender in connection with the
preparation of the Letter Agreement, this Second Amendment Agreement and
the transactions contemplated therein and herein;
provided that Lender may temporarily defer the requirement of satisfaction of
one or more of the foregoing Conditions Precedent and during the period of
deferral may implement the provisions hereof which require or are subject to the
satisfaction of Conditions Precedent, but Lender may withdraw any such deferral
at any time prior to satisfaction of any deferred Condition Precedent and
require full satisfaction of all Conditions Precedent as a condition of any
further implementation of any provision hereof which requires or is subject to
the satisfaction of Conditions Precedent.
9. FURTHER ASSURANCES. Borrower hereby covenants and agrees to and for
the benefit of Lender to execute and deliver to Lender and to furnish to Lender
such further and additional instruments (including policies of title insurance
and endorsements thereto) as Lender may in its sole discretion require to
confirm the existence and continued priority of the liens of all mortgages,
deeds of trust and Additional Collateral Documents securing all or any part of
the Working Capital Loan, Project Loan and/or ABF Loan,as may be now or at any
time hereafter outstanding (the "Loan Security Documents").
10. NO WAIVERS. No waivers of any defaults or non-compliance of
obligations or agreements of Borrower under the Working Capital Note, Project
Loan Agreement, ABF Loan Agreement or Ancillary Loan Agreement shall be deemed
made or given by virtue of the execution and delivery hereof by Lender, except
to the extent specifically set forth herein; nor shall any specific waiver
provided for herein constitute a waiver of any subsequent Event of Default
whether of the same or different nature.
11. RELEASE OF COLLATERAL. Lender hereby agrees that upon Borrower's
written request it will release the Additional Collateral described in items 1
to 4 (both inclusive) of Schedule I hereto and release the Guarantors from their
obligations under the Guaranty, as hereby amended, in the event that at any time
on or before the Termination Date all of the following conditions shall be
complied with:
(a) The Working Capital Note is repaid in full;
(b) No Event of Default exists; and
(c) The outstanding balance of the Project Loan and ABF Loan shall
not exceed in the aggregate the amount permitted to be borrowed by Borrower
in accordance with the provisions of the Present Project Loan Agreement and
Present ABF Loan Agreement, with, for periods subsequent to the Termination
Date (i) Borrower's Liabilities/Net Worth Ratio not to exceed 5.0 to 1.0
and (ii) the Borrowing Base Amount calculated as set forth in Section 4(c)
hereof (that is to say; the Borrowing Base Amount for the ABF Loan is to be
calculated as if the percentage "75%" appearing in clause (3) of Section
3.5(b) of the ABF Loan Agreement remains "75%" and the percentage "80%"
appearing in clause (4) of said Section 3.5(b) remains "80%").
12. COSTS AND EXPENSES. Borrower hereby agrees to pay and/or to
reimburse Lender for payment of, any and all costs and expenses (including legal
fees and disbursements) incurred by Lender in connection with the preparation
and implementation of the Letter Agreement, this Agreement and the Additional
Collateral Documents and the consummation and implementation of the transactions
contemplated hereby and thereby.
13. CONTINUING PRIORITY. In the event by virtue of any of the terms,
provisions and conditions of this Second Amendment Agreement, any lien upon any
property securing the Working Capital Loan, the Project Loan and/or the ABF
Loan, otherwise junior in priority to any of the Loan Security Documents, this
Second Amendment Agreement shall, NUNC PRO TUNC, be null and void without any
further action of the parties hereto to the fullest extent as if this Second
Amendment Agreement had never been executed, to the end that the lien and
priority of the Loan Security Documents shall not be impaired; provided that:
(a) The provisions of Section 7 hereof shall remain in effect as
independent covenants and the Guaranty shall be deemed amended as provided
for therein; and
(b) The provisions of Section 14 hereof shall remain in effect as
independent covenants.
14. RELEASE. Borrower and Guarantors represent, acknowledge and agree as
follows:
(a) Borrower and Guarantors acknowledge that Lender has duly and
timely performed and observed all of the terms, conditions and obligations
on its part to be performed and observed under and pursuant to the Working
Capital Note, the Project Loan Agreement, the ABF Loan Agreement and the
Ancillary Loan Documents at all times to and including the date of
execution and delivery hereof; and
(b) Each constituent of the Borrower and each Guarantor, and on its
or his own behalf and on behalf of all persons claiming by, through or
under them, or any of them, hereby remises, discharges and acquits Lender
and its shareholders, directors, agent and employees (the "Released
Parties") of and from any and all claims, demands, actions, causes of
action, obligations and liabilities of any kind and nature whatsoever which
exists, may exist or may hereafter exist by reason of any action or
inaction of the Released Parties taken or omitted to be taken by any one or
more of the Released Parties
on or prior to the date hereof in connection with the Working Capital
Loan, the Project Loan or the ABF Loan, or any instrument evidencing,
securing or governing the same, including, but not limited to, the
Present Working Capital Note, the Present Project Loan Agreement, the
Present ABF Loan Agreement and the Present Ancillary Loan Documents; and
(c) The provisions of this Section 14 shall remain in effect and
shall survive the termination of this Second Amendment Agreement.
15. CONCERNING THE LETTER AGREEMENT. If and to the extent any provision
of the Letter Agreement shall conflict with any provision hereof, the provisions
hereof shall be controlling.
16. CONFIRMATION. Except to the extent herein specifically set forth,
all parties hereto hereby confirm and reaffirm their respective agreements and
undertakings contained in the Present Working Capital Note, the Present Project
Loan Agreement, the Present ABF Loan Agreement, the Present Ancillary Loan
Documents and the Guaranty, as hereby modified and amended.
17. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively made and given
when personally delivered, when transmitted by facsimile, the next business day
after delivery to a reputable overnight courier (e.g. FedEx, Purolator, etc.) or
three days after having been deposited in the United States Mail, certified
mail, postage prepaid, return receipt requested, addressed as set forth in
Section 7.2 of the Original ABF Loan Agreement; except that all notices to
Guarantors shall be sent to the address of Borrower as therein set forth.
18. BINDING EFFECT. The provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
19. TIME. Time is of the essence hereof and of each of the Working
Capital Note, the Project Loan Agreement, the ABF Loan Agreement, the Guaranty
and the Ancillary Loan Documents.
20. EXECUTION IN COUNTERPARTS. This Second Amendment Agreement my be
executed in any number of counterparts and by he different parties hereto on
separate counterparts, each of which when os executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
Agreement to be duly executed all on and as of the day, month and year first
above written.
UNITED HOMES, INC., an Illinois corporation;
By: _____________________________________
Printed Name: ____________________________
Title: ___________________________________
UNITED HOMES, INC., an Arizona corporation;
By: _____________________________________
Printed Name: ____________________________
Title: ___________________________________
UNITED HOMES OF ILLINOIS, INC., an Illinois
corporation
By: _____________________________________
Printed Name: ____________________________
Title: ___________________________________
UNITED HOMES OF MICHIGAN, INC., a Michigan
corporation,
By: _____________________________________
Printed Name: ____________________________
Title: ___________________________________
_________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation
By: _____________________________________
Printed Name: ____________________________
Title: ___________________________________
c:\wpwindoc/rfc/united\2nd-amd.v3/
SCHEDULE I TO SECOND AMENDMENT AGREEMENT
The following is the description of the Additional Collateral to be delivered
to Lender, together with appropriate instruments of assignment in all
respects satisfactory to Lender, as provided for in the foregoing Second
Amendment Agreement.
ITEM 1.
All of the rights and interests of payee in and under the following Promissory
Notes:
Demand Promissory Note dated September 10, 1997 in the amount of
$1,032,000.00 made by Mirage LLC payable to the order of United
Homes, Inc.
Demand Promissory Note dated September 22, 1997 in the amount of
$2,377,000.00 made by United Round Lake Land Development LLC payable
to the order of United Homes, Inc.
Promissory Note dated September 30, 1998 in the amount of $4,563,471.00
made by United Development Management Company payable to the order
of United Homes, Inc. due on the first day of the month which is
fifteen (15) months after the month succeeding the month in which
such Promissory Note is dated.
provided that in connection with the foregoing Notes (a) each Note, duly
endorsed in blank for transfer by the payee thereof shall be delivered to
Lender; (b) each maker ("Maker") thereof shall consent to and acknowledge the
collateral assignment and transfer thereof to Lender; and (c) each Maker
shall agree to pay to Lender the first monies received by such Maker from the
real estate project owned by such Maker, prior to paying any other obligation
of such Maker for borrowed money and prior to making any distribution to
shareholders or affiliates of such Maker.
ITEM 2.
The assignment to Lender by each Maker of the Notes described in Item 1 above
of all of its beneficial and economic interest in and monies to be received
from each real estate project owned by such Maker.
ITEM 3.
An assignment by United Homes, Inc., as builder ("Builder") to Lender of all
of its rights and interest under that certain Master Sale and Rental
Agreement dated February 11, 1998 ("National Agreement") between Builder and
National Model Homes, Inc. ("National"), including, but not limited to, all
monies due and notes payable to Builder pursuant to the National Agreement,
together with (a) the acknowledgment of National of such assignment,(b) the
agreement of National to pay to Lender all amounts payable to Builder
pursuant to the National Agreement, (c)the agreement by National not to look
to Lender for the performance by Lender of any of Builder's agreements or
obligations under the National Agreement and (d) the certification by
National of amounts due Builder under the National Agreement.
ITEM 4.
The agreement by each shareholder ("Shareholder") of each constituent of
Borrower ("Constituent") to pledge and deliver all of such Shareholder's
shares of capital stock of such Constituent to Lender, in each case duly
endorsed in blank for transfer, which pledge and delivery shall be made
either (a) concurrently with the execution and delivery of the foregoing
Second Amendment Agreement as to all shares not subject to a pledge to ▇▇▇▇▇▇
Financial, Inc. (the "Existing Pledgee") and (b) immediately following the
release by Existing Pledgee of any such shares pledged to it; provided that
each Constituent of Borrower shall acknowledge the assignment and pledge made
and to be made as aforesaid.
ITEM 5.
An assignment executed by Borrower, the Guarantors and all officers,
directors, shareholders and affiliates of Borrower and Guarantors (including
VPA Ltd., an Illinois corporation, of which Guarantors are the sole
shareholders and directors) of their respective rights, economic interests
and monies receivable from Victorian Park Associates whether pursuant to the
Agreement of Limited Partnership thereof, pursuant to the Order Confirming
Final Plan entered in the matter entitled, "In Re: Victorian Park Associates,
▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Court for the Northern District of
Illinois, Eastern Division, or otherwise.
ITEM 6.
The assignment to Lender by United Homes, Inc., as purchaser ("Purchaser") of
all of its rights and interests in and under that certain Agreement of
Purchase and Sale dated October 20, 1997 between Purchaser and Angeles
Mortgage Investment Trust, as seller ("Angeles") relating to the purchase by
Purchaser of approximately 200 acres of vacant land located at ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, provided that (a) Lender shall not be
obligated upon or liable to perform any obligations or agreements of
Purchaser under said Agreement, and (b) Lender may require the consent and
agreement of Angeles as to such assignment and the agreement of Angeles to
accept, but not require, performance by Lender in lieu of performance by
Purchaser under such Agreement.
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