SECOND AMENDMENT TO
LOAN AGREEMENT AND PROMISSORY NOTE
THIS SECOND AMENDMENT TO LOAN AGREEMENT AND PROMISSORY
NOTE (the "Amendment") is made and entered into effective the 1st day of
October, 2000, by and between MCO PROPERTIES INC., a Delaware corporation, MCO
PROPERTIES L.P., a Delaware limited partnership, HORIZON CORPORATION, a Delaware
corporation, HORIZON PROPERTIES CORPORATION, a Delaware corporation, WESTCLIFF
DEVELOPMENT CORPORATION, a Texas corporation (collectively, "Borrower"), and
SOUTHWEST BANK OF TEXAS, N.A., a national banking association ("Lender").
R E C I T A L S:
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WHEREAS, Borrower made executed and delivered that certain Promissory
Note (Revolving Credit) dated October 30, 1998, in the original principal sum of
Fourteen Million and No/100 ($14,000,000.00) bearing interest on the unpaid
balance thereof at the rate or rates therein stated, with a final stated
maturity thereof of October 1, 2000 (which, as it may have been further amended,
supplemented or restated, is herein called the "Note");
WHEREAS, the Note was issued pursuant to that certain Loan Agreement
dated effective October 30, 1998 (which, as it was modified by that First
Amendment to Loan Agreement dated effective February 26, 1999 between Borrower
and Lender (the "First Amendment") and as it may have further been amended,
supplemented or restated, is herein called the "Loan Agreement" between Borrower
and Lender; the terms defined therein being used herein as therein defined
unless otherwise defined herein);
WHEREAS, the Note is secured by, among other security, one or more
Modification and Restatement Deeds of Trust, Security Agreement, Fixture Filing
and Assignment of Rents (as they may have been amended, supplemented or
corrected, are herein collectively called the "Deeds of Trust") from Borrower
for the benefit of Lender, to each of which instruments reference is here made
for description of the property covered and affected by such instruments (the
"Property") and for all other purposes. The liens, security interests and
assignments of the Deeds of Trust and of all other documents or instruments now
or hereafter governing, evidencing, guaranteeing or securing or otherwise
relating to payment of all or any part of the indebtedness evidenced by the Note
(collectively, the "Credit Documents") are hereinafter called the "Liens."
WHEREAS, Borrower and Lender desire to further amend the Loan Agreement
and the Note to: (i) extend the maturity date of the Note from October 1, 2000
to September 30, 2001 and (ii) amend certain terms and provisions of the Loan
Agreement;
A G R E E M E N T:
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In consideration of the premises and the mutual agreements herein set
forth, Borrower and Lender hereby agree as follows:
1. Amendments to the Loan Agreement. The Loan Agreement is, effective
the date hereof, and subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, hereby amended as follows:
(a) Section 1, Loan, is amended by replacing subsection 1(a) with the following:
(a) On the terms and subject to the conditions set
forth in this Agreement, Lender agrees to lend to
Borrower up to $14,000,000.00 (the "Loan"). The Loan
shall be evidenced by a Revolving Credit Note (the
"Note") in a form satisfactory to Lender, duly
executed by Borrower in the principal amount of
$14,000,000.00 and made payable to the order of
Lender. Principal and interest on the Note shall be
due and payable in the manner and at the times set
forth in the Note with final maturity (the "Maturity
Date") on September 30, 2001. The availability or
proceeds of the Loan shall be used only (i) for the
issuance of one or more Letters of Credit (as
hereinafter defined), and (ii) for Borrower's general
corporate purposes.
(b) Section 3(a) is hereby amended by replacing subsection (v) of that section
with the following language:
(v) appraisals of all the Real Estate Collateral (as hereinafter defined), the
principal amount of which exceeds $250,000.00, in form and content
satisfactory to Lender,
(c) Exhibit A is hereby amended by changing, the
definition of "Eligible" Real Estate Note by deleting
subparagraph (ii) of that paragraph in its entirety.
2. Amendment to Note. The Note is, effective the date hereof, and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, hereby amended as follows:
(a) Section 1 is hereby amended by changing the
definition of "Maturity Date" from "OCTOBER 1, 2000"
to "SEPTEMBER 30, 2001."
(b) Upon the effective date hereof, Lender shall be
authorized to endorse on the Note the following
legend or a legend of similar effect:
"THE MATURITY DATE SET FORTH IN THIS NOTE HAS BEEN
EXTENDED UNTIL SEPTEMBER 30, 2001, PURSUANT TO THAT CERTAIN
SECOND AMENDMENT TO LOAN AGREEMENT AND PROMISSORY NOTE DATED
AS OF OCTOBER 1, 2000, AMENDING, AMONG OTHER THINGS, THE LOAN
AGREEMENT REFERRED TO IN THIS NOTE."
3. Conditions of Effectiveness. This Amendment shall become effective
when, and only when, Lender shall have received counterparts of this Amendment
executed by Borrower and Sections 1 and 2 hereof shall become effective when,
and only when, Lender shall have additionally received all of the following
documents, each document (unless otherwise indicated) being dated the date of
receipt thereof by Lender (which date shall be the same for all such documents),
in form and substance satisfactory to the Lender:
(a) Renewal and Extension of Note and Liens to be filed
of record in the Official Public Records of Mohave
County, Arizona; Maricopa County, Arizona; Cochise
County, Arizona; Pima County, Arizona; Riverside
County, California; Bernadillo County, New Mexico;
▇▇▇▇▇▇▇ County, New Mexico; Valencia County, New
Mexico; El Paso County, Texas; Potter County, Texas;
and San Jacinto County, Texas;
(b) A $70,000.00 (.50%) extension commitment fee; and
(c) Any and all other documentation as Lender may reasonably require.
4. Representations and Warranties of Borrower. Borrower represents and warrants as
follows:
(a) Borrower is duly authorized and empowered to execute, deliver and perform
this Amendment and all other instruments referred to or mentioned herein to
which it is a party and all action on its part requisite for the due execution,
delivery and the performance of this Amendment has been duly and
effectively taken. This Amendment, when executed and delivered, will
constitute valid and binding obligations of Borrower enforceable in
accordance with its terms. This Amendment does not violate any provisions
of Borrower's Articles of Incorporation, By-Laws, or any contract,
agreement, law or regulation to which Borrower is subject and does not
require the consent or approval of any regulatory authority or governmental
body of the United States or any state.
(b) The representations and warranties made by Borrower in the Loan
Agreement are true and correct as of the date of this Amendment.
(c) No event has occurred and is continuing which
constitutes an Event of Default or would constitute
an Event of Default but for the requirement that
notice be given or time lapse or both.
5. No Usury Intended; Spreading. Notwithstanding any provision to the
contrary contained in the Note or any of the other Credit Documents, it is
expressly provided that in no case or event shall the aggregate of (i) all
interest on the unpaid balance of the Note, accrued or paid from the date of and
(ii) the aggregate of any other amounts accrued or paid pursuant to the Note or
any Credit Documents, which under applicable laws are or may be deemed to
constitute interest upon the indebtedness evidenced by the Note ever exceed the
Maximum Rate (as defined in the Note). In this connection, Borrower and Lender
expressly stipulate and agree that it is their common and overriding intent to
contract in strict compliance with the applicable usury laws. In furtherance
thereof, none of the terms of the Note or any of the other Credit Documents
shall ever be construed to create a contract to pay, as consideration for the
use, forbearance or detention of money, interest at a rate in excess of the
Maximum Rate. Borrower or other parties now or hereafter becoming
liable for payment of the indebtedness evidenced by the Note shall never be
liable for interest in excess of the Maximum Rate. If, for any reason whatever,
the interest paid or received on the Note during its full term produces a rate
which exceeds the Maximum Rate, the holder of the Note shall credit against the
principal of the Note (or, if such indebtedness shall have been paid in full,
shall refund to the payor of such interest) such portion of said interest as
shall be necessary to cause the interest paid on the Note to produce a rate
equal to the Maximum Rate. All sums paid or agreed to be paid to the holder of
the Note for the use, forbearance or detention of the indebtedness evidenced
thereby shall, to the extent required to avoid or minimize usury and to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of the Note, so that the interest rate does not exceed
the Maximum Rate. The provisions of this paragraph shall control all agreements,
whether now or hereafter existing and whether written or oral, between Borrower
and Lender.
6. Reference to and Effect on the Loan Documents; Miscellaneous. Upon
the effectiveness of Section 1 hereof on and after the date hereof, each
reference in the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference in the Loan documents shall
mean and be a reference to the Loan Agreement as amended hereby. The Liens are
hereby ratified and confirmed as continuing to secure the payment of the Note,
as modified hereby. Nothing herein shall in any manner diminish, impair or
extinguish the Note, any of the other Credit Documents or the Liens. The Liens
are not waived. To the extent of any conflict between the Note or any of the
other Credit Documents (or any earlier modification of any of them) and this
Agreement, this Agreement shall control. Except as hereby expressly modified,
all terms of the Note and the other Credit Documents (as any of them may have
been previously modified by any written agreement) remain in full force and
effect. If more than one person or entity execute this Agreement as "Borrower,"
each shall be jointly and severally liable for the obligations of Borrower
hereunder. This Agreement (a) shall bind and benefit Borrower and, except as
herein expressly limited, Lender and their respective heirs, beneficiaries,
administrators, executors, receivers, trustees, successors and assigns
(provided, that Borrower shall not assign its rights hereunder without the prior
written consent of Lender); (b) may be modified or amended only by a writing
signed by each party; (c) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE APPLICABLE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA FROM
TIME TO TIME IN EFFECT; (d) may be executed in several counterparts, and by the
parties hereto in separate counterparts, and each counterpart, when executed and
delivered, shall constitute an original agreement enforceable against all who
signed it without production of or accounting for any other counterpart, and all
separate counterparts shall constitute me same agreement and (e) embodies the
entire agreement and understanding between the parties with respect to
modifications of instruments provided for herein and supersedes all prior
conflicting or inconsistent agreements, consents and understandings relating to
such subject matter. Borrower acknowledges and agrees that there are no oral
agreements between Borrower and Lender which have not been incorporated in this
Agreement. If any provision of this Agreement should be determined by any court
of competent jurisdiction to be illegal, invalid or unenforceability under
present or future laws, the legality, validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby. Each
waiver in this Agreement is subject to the overriding and controlling rule that
it shall be effective only if and to the extent that (a) it is not prohibited by
applicable law and (b) applicable law neither provides for nor allows any
material sanctions to be imposed against Lender for having bargained for and
obtained it. Wherever the term "including" or a similar term is used in this
Agreement, it shall be read as if it were "including by way of example only and
without in any way limiting the generality of the clause or concept referred
to." Any exhibits, appendices and annexes described in this Agreement as being
attached to it are hereby incorporated into it. The headings in this Agreement
shall be accorded no significance in interpreting it. BORROWER HEREBY RELEASES,
DISCHARGES AND ACQUITS FOREVER LENDER AND ITS OFFICERS, DIRECTORS, TRUSTEES,
AGENTS, EMPLOYEES AND COUNSEL (IN EACH CASE, PAST, PRESENT AND FUTURE) FROM ANY
AND ALL CLAIMS EXISTING AS OF THE DATE HEREOF (OR THE DATE OF ACTUAL EXECUTION
HEREOF BY THE APPLICABLE PERSON OR ENTITY, IF LATER). AS USED HEREIN, THE TERM
"CLAIM" SHALL MEAN ANY AND ALL LIABILITIES, CLAIMS, DEFENSES, DEMANDS, ACTIONS,
CAUSES OF ACTION, JUDGMENTS, DEFICIENCIES, INTEREST, LIENS, COSTS OR EXPENSES
(INCLUDING BUT NOT LIMITED TO COURT COSTS, PENALTIES, ATTORNEYS' FEES AND
DISBURSEMENTS, AND AMOUNTS PAID IN SETTLEMENT) OF ANY KIND AND CHARACTER
WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR USURY, BREACH OF CONTRACT,
BREACH OF COMMITMENT, NEGLIGENT MISREPRESENTATION OR FAILURE TO ACT IN GOOD
FAITH, IN EACH CASE WHETHER NOW KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED,
ASSERTED OR UNASSERTED OR PRIMARY OR CONTINGENT, AND WHETHER ARISING OUT OF
WRITTEN DOCUMENTS, UNWRITTEN UNDERTAKINGS, COURSE OF CONDUCT, TORT, VIOLATIONS
OF LAWS OR REGULATIONS OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, BORROWER HEREBY WAIVES ALL RIGHTS, REMEDIES, CLAIMS AND DEFENSES
BASED UPON OR RELATED TO SECTIONS 51.003, 51.004 AND 51.005 OF THE TEXAS
PROPERTY CODE, TO THE EXTENT THE SAME PERTAIN OR MAY PERTAIN TO ANY ENFORCEMENT
OF ANY OF THE CREDIT DOCUMENTS.
7. Costs and Expenses. Borrower agrees to pay on demand all costs and
expenses of Lender in connection with the preparation, reproduction., execution
and delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including the reasonable fees and out-of-pocket expenses of
counsel for Lender. In addition, Borrower shall pay any and all fees payable or
determined to be payable in connection with the execution and delivery, filing
or recording of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save Lender harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such fees.
8. Final Agreement. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed in multiple counterparts, each of which is an original
instrument for all purposes, all as of the day and year first above written.
"BORROWER"
MCO PROPERTIES INC.,
A DELAWARE CORPORATION
BY: /S/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice-President
MCO PROPERTIES L.P.,
A DELAWARE LIMITED PARTNERSHIP
BY: MCO PROPERTIES INC.,
A DELAWARE CORPORATION
ITS GENERAL PARTNER
By: /S/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice-President
HORIZON CORPORATION,
A DELAWARE CORPORATION
By: /S/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice-President
HORIZON PROPERTIES CORPORATION,
A DELAWARE CORPORATION
By: /S/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice-President
WESTCLIFF DEVELOPMENT CORPORATION,
A TEXAS CORPORATION
By: /S/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice-President
"LENDER"
SOUTHWEST BANK OF TEXAS, N.A.,
A NATIONAL BANKING ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President