exv4w1



 







EXHIBIT 4.1




PROMISSORY NOTE




Up to USD $50,000,000




     FOR VALUE RECEIVED, the undersigned BROOKFIELD HOMES CORPORATION, (the “Borrower”) hereby
acknowledges itself indebted to TRILON BANCORP (Europe) ZRt,, BUDAPEST ZURICH BRANCH (the “Lender”)
and promises to pay to or to the order of the Lender the principal amount outstanding from time to
time under this grid promissory note (the “Note”) in lawful money of the United States, together
with interest thereon at the place, times and rate and in the manner hereinafter provided.




	1.	 	Principal The principal of this Note shall equal the advances made by the Lender to
the Borrower from time to time. Provided that no Event of Default (as defined below) has
occurred and is continuing, the Borrower shall be entitled to drawdown advances on this Note
to a maximum aggregate principal amount of US$50,000,000. The Borrower hereby authorizes the
Lender to record on the grid appended as Schedule 1 to this Note all fees and expenses,
advances, repayments, prepayments and unpaid principal balance on this Note from time to time.
The Borrower agrees, absent manifest error, that the record kept by the Lender on this Note
or any attachment shall be conclusive evidence of the matter recorded, provided that the
failure of the Lender to record or correctly record any amount or date shall not affect the
obligation of the Corporation to pay the outstanding principal amount of the advances and
interest.






	2.	 	Drawdowns: Drawdowns are permitted as required by the Borrower, subject to three (3)
business days prior written notice of the Borrowers’ intention to draw. Minimum drawing
amount of US$1,000,000 and in whole multiples of US$1,000,000. Drawdowns will be recorded on
the grid in Schedule 1.






	3.	 	Use of Proceeds: Advances under this Note will be used for general corporate
purposes .






	4.	 	Maturity Date: Subject to earlier maturity as provided herein, the principal amount
outstanding under this Note and all accrued and unpaid interest shall become due and be
repayable no later than June 30, 2007 (the “Maturity Date”).






	5.	 	Interest Rate: Borrower will pay interest on the unpaid principal amount outstanding
under this Note and all accrued but unpaid interest thereon, computed on the basis of the
actual number of days elapsed in a 360-day year, at a rate per annum equal to thirty (30) day
USD LIBOR plus 2% (the “Interest Rate”) set three (3) business days prior to the following
month. USDLIBOR and the applicable Interest Rate shall be set monthly. Interest shall be paid
monthly, with all accrued but unpaid interest being due and payable on the last day of the
month following the date hereof provided that if such day falls on a day that is not a
business day (meaning for the purpose of this Note, a day which is not a Saturday, Sunday or
statutory holiday in the state of Delaware) it shall be due and payable on the following
business day.






	6.	 	Default Interest Rate: In the event that an Event of Default (as defined below)
occurs and is continuing the applicable interest rate will change to the Interest Rate plus 5%
per annum.




 









 












	7.	 	Taxes and Deductions: All payments under or in respect of the Note are to be made
free and clear of any present or future taxes, imposts, assessments, withholdings or other
deductions whatsoever other than income and franchise taxes imposed upon the Lender.






	8.	 	Voluntary and Mandatory Prepayments:  This Note may be repaid in whole or in part at
any time without penalty provided that the Borrower provides the Lender with at least three
days written notice of such prepayment and provided that prepayments may only be made in
multiples of US$1,000,000, except when repaying the Note in full. Any amounts received from
Borrower shall be applied in the following order to outstanding amounts: first to any
outstanding fees, second to accrued but unpaid interest and thereafter as a reduction of
principal. All prepayments will be recorded on the grid in Schedule 1






	9.	 	Third Party Costs: All reasonable legal and out-of-pocket expenses of Trilon are for
the account of the Borrower whether or not any Drawdowns take place. Expenses shall be paid on
receipt by the Borrower of invoices and any expenses not paid prior to closing shall be paid
on closing.






	10.	 	Conditions Precedent to Drawdowns: The following conditions precedent must be
satisfied prior to the first drawdown under the Note:






	 	(a)	 	The Borrower shall not be in default under the terms of any material contracts
including agreements with its senior lenders and no event shall have occurred which
with notice or passage of time would constitute such default.






	11.	 	Covenants, Further Assurances: The Borrower agrees to comply with the following
covenants:






	 	(a)	 	The Borrower shall maintain a minimum shareholders equity of US$200 million.






	12.	 	Financial Statements and Reports: The Borrower shall deliver to the Lender the
following:






	 	(a)	 	Quarterly, within 60 days of quarter end, quarterly unaudited financial
statements of the Borrower
	 
	 	(b)	 	Annually, within 120 days of year end, the audited financial statements of the
Borrower
	 
	 	(c)	 	Notice of all filings made by the Borrower with the United States Securities
and Exchange Commission.
	 
	 	(d)	 	Such additional financial statements and information as and when reasonably
requested by the Lender.






	13.	 	Events of Default The following shall be events of default (“Events of Default”).:






	 	(a)	 	Failure to pay interest, fees, principal or any other monies due by the
Borrower under the Note, with a three business day grace period after such notice for
the payment of interest and fees or;
	 
	 	(b)	 	If an order is made in bankruptcy or an effective resolution is passed or order
is made for the winding up of the Borrower or any of its significant subsidiaries or,
if the Borrower or any of its significant subsidiaries consent to the appointment of a
receiver or a receiver is appointed and confirmed by a court; or




2









 












	 	(c)	 	if an encumbrancer takes possession of all or substantially all of the property
of the Borrower, or if any process of execution is levied or enforced upon or against
all or substantially all of the property of the Borrower and remains unsatisfied for
such period as would permit any such property to be sold thereunder, unless the
Borrower actively and diligently contests in good faith such process, but in that event
the Borrower shall, if the Lender so requires, give security which, in the discretion
of the Borrower, is sufficient to pay in full the amount thereby claimed in case the
claim is held to be valid; or
	 
	 	(d)	 	if any change (or any condition, event or development involving a prospective
change) in the business, operations, affairs, assets, liabilities (including any
contingent liabilities that may arise through outstanding, pending or threatened
litigation or otherwise) capitalization, financial condition, licenses, permits, rights
or privileges, or prospects of the Borrower or any of its subsidiaries which in the
judgement of the Lender acting reasonably in the circumstances could reasonably be
expected to materially and adversely affect the Borrower and its subsidiaries taken as
a whole; or
	 
	 	(e)	 	if the Borrower defaults in observing or performing any other covenant or
condition of this Note on its part to be observed or performed and if such default
continues for a period of fifteen (15) days after notice in writing has been given to
the Borrower by the Lender specifying such default and requiring the Borrower to
rectify the same (or such longer period as may be reasonably required to remedy such
default, so long as the Borrower diligently pursues the remedying of such default but
in no event shall such period exceed ten (10) days), unless the Borrower (having regard
to the subject matter of the default) shall have agreed to a longer period and, in such
event, for the period agreed to by the Borrower.






	14.	 	Indemnity: The Borrower agrees to indemnify the Lender and its directors, officers,
employees and shareholders from any losses, claims, damages or liabilities to which an
indemnified party may become subject or which arise out of, or relate to or result from, the
signing of this Note or the proposed financing, except to the extent related to the gross
negligence or willfull misconduct of the Lender or any such party










3









 












	15.	 	Notices: Any notice, demand or other communication required or permitted to be
given by one party to the other party hereunder shall be given in writing by personal
delivery, email or by facsimile transmission to such other party as follows:





	 	 	 
	(a)

	 	to the Borrower at:
	 
	 	 
	 

	 	Brookfield Homes Corporation
	 

	 	8500 Executive Park Avenue, Suite 300
	 

	 	Fairfax, VA 22031
	 
	 	 
	 

	 	Paul Kerrigan
	 

	 	Tel: 858-481-2568
	 
	 	 
	 

	 	(b) to the Lender at:
	 
	 	 
	 

	 	Attention: Gabriella Miklós
	 
	 	 
	 

	 	Trilon Bancorp (Europe) ZRt, Budapest
	 

	 	Zurich Branch
	 

	 	Ms Gabriella Miklós
	 

	 	Bellerivestrasse 17
	 

	 	8008 Zurich
	 

	 	Switzerland
	 
	 	 
	 

	 	Tel: +41 43 488 4376

	 

	 	Fax: +41 43 488 4377
	 
	 	 
	 

	 	Gabriella.Miklos@aibswitzerland.ch





or at such other address or telecopy number as may be given by such person to the other parties
hereto in writing from time to time.



All such notices shall be deemed to have been received when delivered or transmitted (provided that
if a notice is transmitted on a non-business day or after 5:00 p.m. on a business day it shall be
deemed to have been received on the next business day).




4









 









	16.	 	General The Borrower hereby waives presentment for payment, notice of non-payment,
protest and notice of protest and hereby consents to all extensions and renewals hereof
without notice. The non-exercise by the holder of any rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent instance.





          THE PROVISIONS of this note shall be governed by and construed in accordance with the laws of
the state of Delaware and the federal laws of the United States applicable therein.




     DATED this 12th day of June, 2006.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	BROOKFIELD HOMES CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:
	 	  /s/ PAUL G. KERRIGAN	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	  Authorized Signing Officer	 	 
	 
	 	 	 	 	 	 
	 	 	TRILON BANCORP (Europe) ZRt, Budapest, Zurich Branch	 	 
	 
	 	 	 	 	 	 
	 

	 	Per:
	 	  /s/ GABRIELLA MIKLOS	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	  Authorized Signing Officer	 	 






5









 






SCHEDULE 1

OUTSTANDING NOTE BALANCE




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Unpaid	 	 	 	 
	 	 	 	 	 	 	 	 	Principal of	 	 	 	 
	 	 	Fees and	 	 	 	 	 	Note (pre	 	Accrued	 	Outstanding
	Date	 	Expenses	 	Drawdown	 	Prepayment	 	interest)	 	Interest	 	Balance
	 

	 	 	 	 	 	 	 	 	 	 	 	 






6