AMENDED AND RESTATED REVOLVING LINE OF CREDIT NOTE
THIS AMENDED AND RESTATED REVOLVING LINE OF CREDIT NOTE
(hereinafter the "Restated Note') by and between SEVEN FIELDS
DEVELOPMENT COMPANY, a Pennsylvania Business Trust, having a
current mailing address at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxx,
Xxxxxxxxxxxx, 00000 (hereinafter referred to as '1Borrower")
AND
NATIONAL CITY BANK OF PENNSYLVANIA, having its principal office
at National City Center, 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter referred to as "Lender'1)
WITNESSETH THAT:
WHEREAS, Borrower has executed and delivered to Lender a
Revolving Line of Credit Note dated November 13, 1995 (the
"Note") in the principal amount of One Million Dollars
($1,000,000.00) (hereinafter referred to as the "Loan" or "Line
of Credit") and a Revolving Line of Credit Loan Agreement dated
November 13, 1995 (the "Loan Agreement") , said Loan being
secured by Mortgages (hereinafter individually and collectively
referred to as the "Mortgage") (hereinafter the "Mortgaged
Premises") encumbering all those certain Lots or pieces of ground
described in said Mortgages; and
WHEREAS, Borrower and Lender desire to amend and restate
the Note to increase the amount of the loan to Two Million Two
Hundred Fifty Thousand Dollars ($2,250,000.00), and to extend the
term of the Loan subject to the terms and conditions contained
herein -
Guarantor Seven Fields Development (PA) Inc., a Pennsylvania Corporation.
Improvements - Speculative and pre-sold single family
dwellings or townhouses being constructed by Borrower on each of
the individual Lots comprising the Mortgaged Premises, which
dwellings or townhouses are being financed under the Line of
Credit.
Loan - The Two Million Two Hundred Fifty Thousand Dollar
($2,250,000.00) Line of Credit Loan from Lender to Borrower.
Loan Proceeds - As defined in the Revolving Line of Credit
Loan Agreement.
Loan Closing - The time of delivery and execution of this
Restated Note and the Amended Revolving Line of Credit Loan
Agreement.
Loan Security Documents - All documents and items
considered by Lender to be related to the Loan, including but not
limited to
(a) this Restated Note; (b) the Open-End Mortgage and Security
Agreement(s); (c) the Amended Revolving Line of Credit Loan
Agreement; (d) the Agreement of Guaranty and Suretyship and
Completion of the Project; and e) all other miscellaneous Loan
documents. All Loan Security Documents shall be in form and
substance satisfactory to Lender.
Loan Term - The term commencing on Loan Closing and
continuing until June 1, 2002.
Lots - Each of the developed Lots which are encumbered by
the Mortgages and for which Lots the Loan Proceeds have beenadvanced hereunder
and under the terms of the Revolving Line of Credit Loan Agreement.
Pre-Sold Home - A home or townhouse ("Improvements") sold
to a third party, under the terms of an Approved Contract, in
which the third party has paid a minimum of five (5%) percent to
Borrower of the purchase price of such home or townhouse.
Unsold Speculative Home - A home or townhouse
("Improvements") being constructed by Borrower, with advances
under the terms of the Loan in the absence of an Approved
Contract.
Approved Contract - A bona fide Agreement of Sale and
Construction Contract for the Lot and Improvements executed by
third parties and the Borrower, with a minimum of five (5%)
percent xxxxxxx money deposit paid by a third party, which
Agreement of Sale and Construction Contract are acceptable to
Lender with respect to terms, form and content.
This Note will be secured, inter alia, by the various Open-
End Mortgage and Security Agreements (the "Mortgages") executed
by the Borrower in favor of Lender, encumbering Lots located in
Western Pennsylvania, and elsewhere as approved by Lender, as
more particularly described in said Mortgages, and all
buildings, fixtures and personal property located or to be
located thereon (the "Mortgaged Premises"), and by the Loan
Security Documents as previously defined herein.
1. Interest Rate. From the date hereof, including the
period following entry of any judgment, interest shall be charged
on the outstanding principal balance of the Loan at the
Applicable Interest Rate as specified herein. The term
"Applicable Interest Rate" is defined as follows: The Applicable
Interest Rate to be charged on Loan Proceeds advanced shall equal
Lender's Prime Rate of interest plus one-half of one percent
(.50%) per annum. The Applicable Interest Rate in all
circumstances shall change and be adjusted automatically with
each change in the Prime Rate. As used herein, the term "Prime
Rate" is defined as the fluctuating rate per annum which is
publicly announced from time to time by Lender as being its so-
called "prime rate", with each change in the Prime Rate
automatically, immediately, and without notice changing the rate
applicable to the Loan. The Prime Rate is not necessarily the
lowest rate of interest then available from Lender on
fluctuating-rate loans. Lender reserves the right to substitute
a new interest rate that is based on comparable information, at
any time during the term of the Loan, in the event the Prime Rate
is no longer available.
2. Payments.
(a) Interest Payments - Borrower shall pay monthly
installments of interest only on the outstanding principal
balance at the Applicable Interest Rate commencing on the first
day of the first (1st) month following (i) Loan Closing, or, if
later, (ii) the first Loan disbursement, and on the first day of
each succeeding month thereafter.
(b) Mandatory Principal Reduction.
(I) LOTS - In the event that any Lot is financed under this Line
of Credit, at or subsequent to Loan Closing, for a period of time
longer than twelve (12) months following the date of the Closing
for such Lot, in addition to the monthly interest payments due
hereunder, Borrower shall pay to Lender monthly payments of
principal, amortized over forty-eight (48) months, on the
outstanding balance advanced for said Lot, which principalpayments shall
commence on the first day of the thirteenth (13th)
month following such Lot Closing.
(II) Speculative Improvements - Borrower shall pay to Lender
monthly principal installments of One Thousand Dollars
($1,000.00) per month on any Speculative single-family
Improvements financed under the Line of Credit for a period of
time longer than twelve (12) months following the date of the
execution of the Construction Loan Payout Schedule for such
Speculative Improvements, said principal payments to commence the
1st day of the thirteenth (13th) month following the execution of
the Construction Loan Payout Schedule for such Speculative
Improvements.
(c) Release Fees. Upon conveyance of any Lot, Lender
will require, in order to release such Lot from the lien of a
Mortgage (as hereinafter defined), the payment of a release fee
("Release Fee") equal to the amount of funds advanced by Lender
under the Line of Credit for such Lot and Improvements thereon
plus the Use Fee (as hereinafter set forth) due with respect to
said Lot and Improvements. Notwithstanding the foregoing, Lender
shall not be required to release any Lot from the lien of the
Mortgage encumbering that Lot if Borrower is in default under the
Loan. Upon receipt, if Borrower is not in default, the Release
Fee shall be applied to the reduction of the unpaid outstanding
principal balance of the Loan. Otherwise, the Release Fee shall
be applied to accrued interest, principal or other costs of the
Mortgaged Premises in such priority as Lender shall determine.
(d) Call Date. Notwithstanding any provisions of
this Note to the contrary, on May 1 of each calendar year as long
as any sums are outstanding under the Line of Credit, commencing
May 1, 1999, Lender shall be permitted to review the Loan and, in
the event of any financial deterioration of Borrower as
determined by
the Lender in its sole discretion, Lender shall be permitted to
call the Loan, by giving written notice to Borrower, said notice
setting a date (the "Call Date") by which Call Date Borrower must
obtain substitute financing and satisfy all obligations under the
Line of Credit. The Call Date may not be less than one hundred
eighty (180) days after the date of said Notice. All outstanding
principal under the Line of Credit, together with all accrued
interest thereon, and any other sums or costs advanced or
incurred by Lender in connection therewith, shall be due and
payable no later than the Call Date.
3. Loan Fees.
(i) Commitment Fee - Borrower shall pay to Lender a
Commitment Fee equal to three quarters of one percent (.75%) of
the principal amount of the Loan, or Sixteen Thousand Eight
Hundred Seventy-Five Dollars ($16,875.00), as follows:
(a) the sum of Four Thousand Two Hundred Eighteen and
75/100 Dollars ($4,218.75) payable at Loan closing;
(b) the sum of Four Thousand Two Hundred Eighteen and
75/100 Dollars ($4,218.75) payable on the first day of the
thirteenth (13th) month following Loan Closing; this fee shall
not be due and payable in the event Lender has given written
notice to Borrower setting forth a Call Date for the Loan, as
defined in Paragraph 2 (d) herein, prior to the first day of the
thirteenth (13th) month following Loan Closing.
(c) the sum of Four Thousand Two Hundred Eighteen and
75/100 Dollars ($4,218.75) payable on the first day of the
twenty-fifth (25th) month following Loan closing; this fee shall
not be due and payable in the event Lender has given written
notice to Borrower setting forth a Call Date for the Loan, as
defined in Paragraph 2 (d) herein, prior to the first day of the
twenty-fifth (25th) month following Loan Closing.
(d) the sum of Four Thousand Two Hundred Eighteen and
75/100 Dollars ($4,218.75) payable on the first day of the
thirty-seventh (37th) month following Loan closing; this fee
shall not be due and payable in the event Lender has given
written notice to Borrower setting forth a Call Date for the
Loan, as defined in Paragraph 2 (d) herein, prior to the first
day of the thirty-seventh (37th) month following Loan Closing.
Borrower shall pay to Lender a Commitment Fee equal to one-halfof
one percent (.50%) of the principal amount of the Loan, or Two
Thousand Two Hundred Fifty Dollars ($2,250.00), as follows:
(ii) Use Fee - Borrower shall pay to Lender a Use Fee
equal to one-quarter of one percent (.25%) of the principal
amount advanced by Borrower under this Line of Credit towards the
acquisition of a lot and/or construction of Improvements on a
Lot, said Use Fee to be paid at the time of release of each Lot
and Improvements under the Line of Credit.
4. Maturity Date. If not sooner paid, the entire unpaid
principal balance of the Loan, together with all accrued interest
thereon, and all other sums advanced or incurred by Lender in
connection therewith pursuant to this Note or any other Loan
Security Document shall become due and payable in full on June 1,
2002.
5. Late Charges. If any installment of principal or
interest due under this Note or any escrow or other payment
required to be made under the Mortgage is not paid within ten
days after it has become due, Borrower will pay to the Lender a
late charge equal to the greater of Twenty Dollars ($20.00) or
five percent (5%) of such payment amount.
6. Tender of Payment. Interest, principal and any other
sums payable hereunder shall be payable in lawful money of the
United States of America to Lender at the address set forth
above, or at such other place as Lender, from time to time, may
designate in writing.
Payment of any installment of principal and/or interest or
any other sum due to Lender under any Loan Security Document
shall be deemed to be made only if and when and on the date
Lender receives such installment or other sum, at Lender's
aforementioned address, in cash or other immediately available
funds. If payment is received after 12:00 noon Pittsburgh time,
the payment will not be deemed received until the following
business day. If payment is made by check, payment shall be
deemed to be made if and when the check is collected and Lender
is credited with immediately available funds. If any check is
returned for insufficient funds in the account on which it is
drawn or if it is not collected for any other reason that is the
fault of Borrower, a late charge (as provided in Paragraph 4
above) shall be due on the amount of the payment represented by
the check, and interest at the Default Rate shall be due on such
amount from the due date of the payment until payment is actually
made.
7. Payment of Insurance. Taxes and Assessments. At least
annually, unless more frequently requested by Lender, Borrower
shall provide proof of payment of all required insurance, real
estate taxes and any municipal assessments levied on any of the
Mortgaged Premises. At any time during the term of the Loan, at
Lender's option, Borrower shall establish an escrow reserve with
the Lender for the payment of premiums for all fire and extended
coverage insurance, real estate taxes and municipal assessments
levied on the Mortgaged Premises, and thereafter the monthly
installments due under this Note shall also include escrow
payments equal to one-twelfth (1/12th) of the annual premiums for
such insurance, all required real estate taxes and any municipal
assessments in order to permit payment of these obligations on or
before their respective due dates. No interest shall be payable
on such escrowed funds. 8. Calculation of Interest on Outstanding
Balance. Until the Loan is paid in full, both before and after any default,
interest on the outstanding balance of the Loan shall becalculated on a
360-day year, but charged on the actual number of days elapsed in
any calendar year or part thereof.
9. Default Interest Rate. If a default continues beyond
its applicable grace period, if any, or if an Event of Default
exists, interest shall continue to accrue thereafter on the
entire unpaid principal balance at a rate (the "Default Rate") of
200 basis points ~two percent (2.0%) per annum] in excess of the
rate set forth in this Note, but not greater than permitted by
law, until the Loan is paid in full, including the period
following entry of any judgment.
10. Events of Default. At the option of the Lender, each
of the following is an Event of Default under this Note: (a) if
Borrower default in the payment of any installment of principal
or interest or other sum payable hereunder and the default
continues for five (5) days after the day on which the payment is
due; (b) if there occurs any Event of Default in the Mortgages or
any of the other Loan Security Documents; (c) if any proceeding
under the Bankruptcy Code or any law of the United States or of
any State relating to insolvency, receivership, or debt
adjustment is instituted by the Borrower, or if any such
proceeding is instituted against Borrower and is consented to by
the respondent or remains undismissed for thirty (30) days, or if
relief in bankruptcy is granted to Borrower or if a trustee or
receiver is appointed for any substantial part of the property of
any thereof, and such appointment shall not have been vacated
within thirty (30) days thereafter, or if Borrower make an
assignment for the benefit of creditors, admits in writing an
inability to pay debts generally as they become due or becomes
insolvent; or (d) if Borrower default under any note, document,
instrument or other agreement between Lender and Borrower or any
affiliate of Borrower, which default continues after the
expiration of any applicable grace period.
11. CONFESSION OF JUDGMENT. UPON ANY DEFAULT HEREUNDER OR
UNDER ANY OF THE LOAN SECURITY DOCUMENTS, AFTER THE EXPIRATION OF
ANY APPLICABLE GRACE PERIODS, BORROWER AUTHORIZE ANY ATTORNEY OF
ANY COURT OF RECORD TO APPEAR FOR BORROWER IN ANY JURISDICTION
WHICH PERMITS THE ENTRY OR JUDGMENT BY CONFESSION AND CONFESS
JUDGMENT OR JUDGMENTS FOR THE UNPAID PRINCIPAL BALANCE OF THE
LOAN, ACCRUED INTEREST, AND OTHER SUMS OUTSTANDING HEREUNDER,
TOGETHER WITH THE COSTS OF SUIT AND AN ATTORNEY'S COMMISSION AS
HEREINAFTER PROVIDED, AS OF ANY TERM, AGAINST BORROWER IN FAVOR
OF THE HOLDER (LENDER) HEREOF. THE AUTHORITY HEREIN GRANTED TO
CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF,
BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL FULL
PAYMENT IS MADE OF ALL AMOUNTS WHICH ARE DUE HEREUNDER OR UNDER
ANY OTHER LOAN SECURITY DOCUMENT. BORROWER AGREE THAT ANY REAL
ESTATE THAT MAY BE LEVIED UPON PURSUANT TO A JUDGMENT OBTAINED BY
VIRTUE HEREOF, ON ANY WRIT OF EXECUTION ISSUED HEREON, MAY BE
SOLD UPON ANY SUCH WRIT IN WHOLE OR IN PART IN ANY ORDER DESIRED
BY THE HOLDER (LENDER) OF THIS NOTE. FOLLOWING THE ENTRY OF
JUDGMENT, INTEREST SHALL CONTINUE TO ACCRUE AT THE RATES SET
FORTH HEREIN.
12. Acceleration of Loan Upon Default. Upon any Event of
Default, the entire unpaid principal balance of the Loan,
together with all accrued interest, and all other sums owing
hereunder or under the Mortgages or any other Loan Security
Document shall, at the option of the holder hereof, become
immediately due and payable, without presentation, demand or
further action of any kind.
Upon acceleration of the outstanding principal balance of
the Loan, interest shall continue to accrue thereafter at the
rate equal to 200 basis points (2.0%) in excess of the Applicable
Rate, but not to exceed the highest rate permitted by law, until
the Loan is paid in full, including the period following
entry of any judgment. The failure of the holder hereof to
accelerate the outstanding principal of the Loan upon the
occurrence of an Event of Default hereunder shall not constitute
a waiver of such Event of Default, or any default, or of the
right to accelerate the Loan at any time thereafter.
13. Waiver of Notice. The Lender may exercise any right,
remedy or option to which it is entitled upon a default or Event
of Default (under any of the Loan Security Documents) without
giving any prior notice to Borrower or any other party, except as
such notice is clearly set forth and specifically required by the
provisions of this Note or such other Loan Security Document.
14. Attorney's Fees and Costs of Recovery and Satisfaction.
If the Lender or any subsequent holder hereof retains the
services of counsel in order to cure any Event of Default or to
enforce a remedy under this Note or the Mortgages, reasonable
attorney's fees shall be payable by Borrower to the holder and
shall be secured by the Mortgages. Borrower shall pay the costs,
title searches and all other costs incurred by the holder in
connection with proceedings to recover any sums due hereunder.
Borrower shall also pay any reasonable charge of the holder in
connection with the satisfaction of this Note and/or Mortgages of
record.
15. Waiver of Borrower. Endorsers and Guarantors.
Borrower, all endorsers and Guarantors of this Note, severally
waive to the extent permitted by law presentment, demand, protest
and notice of nonpayment, the benefit of any laws which now or
hereafter might otherwise authorize the stay of any execution to
be issued on any judgment recovered on this Note, or the
exemption of any property from levy and sale thereunder, and all
errors, defects and imperfections whatsoever of a procedural nature
in the entering of the said judgment or any process or
proceedings relating thereto. Borrower agree that the Mortgaged
Premises or any portion thereof may be sold on writ of execution.
16. Renewals and Extensions. Borrower, all endorsers and
Guarantors hereof, and all others who may be liable for all or
any part of the indebtedness evidenced by this Note consent to
any number of renewals or extensions of the time of payment of
any sum due under this Note or the Mortgages or any other Loan
Security Document or for the performance of any covenant,
condition or agreement thereof, or the taking or release of other
or additional security, all without notice, and such actions when
taken shall not release or discharge the liability of Borrower or
of any such endorsers or such persons liable.
17. Remedies Cumulative and Concurrent. The remedies of
the Lender or any subsequent holder hereof as provided herein, or
in the Mortgages or any other Loan Security Documents, and all
warrants of attorney herein and in said Mortgages contained,
shall be cumulative and concurrent, and may be pursued
singularly, successively, or together against Borrower, and/or
the Mortgaged Premises at the sole discretion of the holder, and
such warrants shall not be exhausted by any exercise thereof but
may be exercised as often as occasion therefor shall occur; and
the failure to exercise any such right or remedy shall not be
construed as a waiver or release of the same.
18. Waiver. The Lender or any subsequent holder hereof
shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by the Lender or any subsequent
holder hereof, and then only to the extent specifically set forth
in the writing. A waiver as to one event shall not be construedas
continuing or as a bar to or waiver of any right or remedy as
to a subsequent event.
19. Usury. Nothing herein contained or in any other Loan
Security Document, nor any transaction related hereto shall be
construed or shall operate either presently or prospectively to
require Borrower (a) to pay interest at a rate greater than is
now lawful in such case to contract for, but shall require
payment of interest only to the extent of such lawful rate, or
(b) to make any payments or to do any act contrary to law, but if
any clause or provision herein contained shall otherwise so
operate to invalidate this Note, in whole or in part, then such
clause or provision only shall be held for naught as though not
herein contained and the remainder of this Note shall remain
operative and in full force and effect. Any interest paid in
excess of the lawful rate shall be refunded to Borrower. Such
refund shall be made by application of the excessive amount of
interest paid against any sums outstanding hereunder and shall be
applied in such order as the holder may determine. If the
excessive amount of interest paid exceeds the sums outstanding
hereunder, the portion exceeding the said sums outstanding
hereunder shall be refunded in cash by the holder. Any such
crediting or refund shall not cure or waive any default by
Borrower hereunder or under the Mortgages. Borrower agree,
however, that in determining whether or not any interest payable
hereunder exceeds the highest rate permitted by law, any non-
principal payment (except payments specifically stated herein to
be "interest") ,including, without limitation, late charges,
shall be deemed,to the extent permitted by law, to be an expense,
fee, premium or penalty rather than interest.
20. Subsequent Loans. The Mortgages shall extend to and
cover any additional loans made by Lender to Borrower at any time
or times heretofore or hereafter.
21. No Affiliation. The Lender or any subsequent holder
hereof shall in no event be construed for any purpose to be a
partner, joint venturer or associate of Borrower or any lessee,
operator, concessionaire or licensee of Borrower in the conduct
of their respective businesses.
22. Notices. All Notices shall be given to Borrower at:
SEVEN FIELDS DEVELOPMENT COMPANY
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Chief Operating Officer
and to Lender at:
National City Bank of Pennsylvania
National City Center, 00 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Vice President Commercial Real Estate
Department
Except as otherwise provided in this Note, all notices
hereunder shall be in writing and shall be deemed to have been
duly given for all purposes when delivered in person or when
deposited in the United States mail, by registered or certified
mail, return receipt requested, postage prepaid, directed to the
party to receive the same at its address stated above or at such
other address as may be substituted by notice given as herein
provided.
23. Assignment. Borrower's obligations hereunder shall
extend to and bind Borrower's heirs, executors, administrators,
successors and assigns. This Note is fully assignable by Lender.
24. Governing Law. This Note is secured by Mortgages on
real estate situate in the Commonwealth of Pennsylvania and shall
be deemed made under and governed by the laws of the Commonwealth
of Pennsylvania in all respects, including matters of
construction, performance and enforcement.
25. Severability. Wherever possible, each provision of
this Note shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Note
or any portion thereof shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Note.
26. Incorporation of Other Loan Documents. All of the
Loan Security Documents are hereby fully incorporated by
reference into this Note with the same force and effect as though
fully set out herein.
27. Time of the Essence. Time is of the essence with
respect to each and every provision of this Note.
28. Headings. The headings in sections and titles of this
Note are inserted for convenience only and shall not be deemed to
constitute a part of this Note.
WARNING: THIS DOCUMENT CONTAINS A PROVISION AUTHORIZING
THE ENTRY OF JUDGMENT BY CONFESSION. THIS MEANS THAT A JUDGMENT
COULD BE ENTERED AGAINST YOU WITHOUT NOTICE OR A TRIAL. THIS
COULD RESULT IN YOUR PROPERTY BEING SOLD BY THE SHERIFF IN ORDER
TO SATISFY THIS JUDGMENT. BY SIGNING THIS DOCUMENT YOU
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS
CONTAINED HEREIN.
IN WITNESS WHEREOF, Borrower, intending to be legally bound
hereby, has duly executed this Note as of the day and year first
above written.
WITNESS/ATTEST: SEVEN FIELDS DEVELOPMENT COMPANY,
a Pennsylvania Business Trust
Xxxxxx X. Xxxxx
Chief Operating Officer
