1
EXHIBIT 10.5(b)
MODIFICATION AGREEMENT
STATE OF TEXAS )
)
COUNTY OF FORT BEND )
WITNESSETH
WHEREAS, Bank One, Texas, N.A. (hereinafter referred to as "Lender"),
has previously extended or agreed to extend credit to Newmark Home Corporation,
a Nevada corporation (hereinafter referred to as "Newmark"), as evidenced by
that certain Amended and Restated Loan Agreement dated April 30, 1996, as
amended by that certain First Amendment to Amended and Restated Loan Agreement
dated June, 1996 ("Loan Agreement"), with advances evidenced by the Promissory
Note dated April 30, 1996 in the original principal amount of Twenty Five
Million and No/100 Dollars ($25,000,000.00) (the "Note"); and
WHEREAS, the Loan Agreement is secured by Deeds of Trust and
Supplemental Deeds of Trust and Security Agreements of various dates
(hereinafter referred to as the "Deeds of Trust") covering the property
described on Exhibit "A" attached hereto and incorporated herein for all
purposes (hereinafter referred to as the "Property"); and
WHEREAS, Newmark is the present owner of the Property; and
WHEREAS, Newmark has agreed to transfer and assign the Property to NHC
Homes, Inc., a Nevada corporation (hereinafter referred to as "NHC"), which
would then immediately transfer and assign the Property to Newmark Homes, L.P.
("NHLP"); and
WHEREAS, NHLP desires to assume the obligations contained in the Loan
Agreement, Note and Deeds of Trust; and
WHEREAS, Lender is the present owner and holder of the Note and
Newmark and Lender desire to amend and modify the Loan Agreement, Note and
Deeds of Trust as set forth below; and
WHEREAS, said Deeds of Trust provide for an event of default in the
event of a conveyance of the Property by Newmark without the consent of Lender;
and
WHEREAS, the Lender is willing to consent to the transfer of title and
assumption of the obligations referred to above, on the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the mutual covenants,
considerations and agreements contained herein, it is agreed as follows:
2
I.
Lender hereby consents to the transfer and conveyance of the Property
to NHC from Newmark, subject to the debt obligations associated with the
Property. Lender hereby consents to the transfer and conveyance of the Property
to NHLC from NHC, subject to the debt obligations associated with the Property.
II.
After transfer of the Property to NHC from Newmark, NHC does hereby
assume and agree to perform all of the obligations contained in the Loan
Agreement, Note and Deeds of Trust, as modified, provided, however,
notwithstanding anything to the contrary, it is expressly understood and agreed
by all parties hereto that NHC does not intend, and has not by the execution of
this Agreement, assumed or agreed to assume the payment of, nor shall NHC be
personally liable for, the payment of the Note referred to above and NHC shall
be liable upon the indebtedness evidenced by the Note, all sums to accrue or to
become payable thereon and all amounts covenanted to be paid by NHC under the
Deeds of Trust, to the extent, of the security for the payment of the Note,
including without limitation, all properties, rights and estates described in
the Deeds of Trust. In the event default occurs in the timely and prompt
payment of all or part of such indebtedness, sums or amounts at the maturity
thereof, howsoever such maturity may be brought about, any judicial proceedings
by Lender or other holder thereof against NHC shall be limited to the
preservation, enforcement and foreclosure of the liens and mortgages now or at
any time hereafter securing the payment hereof, and no attachment, execution or
other writ of process shall be sought, issued or levied upon any assets,
properties or funds of NHC other than the properties, rights, estates, and
interests, described in the Deeds of Trust securing the Note. In the event of
foreclosure of such lien and mortgage securing the payment of the Note by
private power of sale or otherwise, no judgment for any deficiency upon such
indebtedness, sums and amounts shall be obtainable by Lender or other holder
hereof against NHC or its successors, assigns, or other legal representatives,
and it is further understood and agreed by all the parties hereto that the
purpose of liability for the payment of the above described indebtedness, NHC
has taken the Property "subject to" said indebtedness, and shall have no
personal liability therefor.
III.
After transfer of the Property from NHC, NHLP does hereby assume and
agree to perform all of the obligations contained in the Loan Agreement, Note
and Deeds of Trust, as modified, it being understood and agreed by all parties
hereto that NHLP intends to assume and be liable for the payment of the Note
referred to above and that NHLP shall be liable upon the indebtedness evidenced
by the Note, all sums to accrue or to become payable thereon and all amounts
covenanted to be paid by NHLP under the Deeds of Trust for payment of the Note.
This covenant of assumption is intended for the benefit of and may be enforced
by Lender and any subsequent holder of the Note.
IV.
The Loan Agreement, Note and Deeds of Trust, as modified, are hereby
amended to include Newmark Homes, L.P., a Texas Limited Partnership, in said
documents, whether as "Maker," "Grantor," "Assignor," "Debtor" or otherwise, as
the case may be, so that all of said instruments shall, from and after this
date, be construed as if they had been originally executed by NHLP.
-2-
3
V.
In the event any item, term or provision contained in this Agreement
is in conflict, or may be hereafter held to be in conflict, with any applicable
laws, this instrument shall be effected only as to its application to such
item, term or provision, and shall in all other respects remain in full force
and effect. In no event and upon no contingency shall the maker or makers of
the Note or Notes secured hereby, or any party liable thereon or therefore, be
required to pay interest in excess of the maximum interest that may be lawfully
charged by the holder of said indebtedness under the applicable usury laws.
VI.
The Loan Agreement, Note and Deeds of Trust shall in all other
respects remain the same and shall continue as valid and binding obligations of
the respective parties, their heirs, successors and assigns. NHLP acknowledges
and agrees that (i) the Note is a valid and subsisting obligation of NHLP,
enforceable against NHLP in accordance with its terms, (ii) the Deeds of Trust
create valid and subsisting liens and security interests against the Property
and other collateral described therein, and (iii) the Note and all of the Deeds
of Trust are hereby renewed and extended, ratified, confirmed and carried
forward by NHLP in all respects.
VII.
This Agreement shall be performable in Xxxxxx County, Texas and shall
be construed in all respects in accordance with the laws of the State of Texas.
VIII.
NHLP agrees to execute such additional documents as may be reasonably
requested by Lender from time to time in order to carry out the intent of this
Agreement and to perfect or give further assurance of any of the rights granted
or provided for hereunder or under the Note, the Loan Agreement or the Deeds of
Trust.
IN WITNESS WHEREOF, the parties have hereunto executed this instrument
in multiple counterparts as of the day first above written.
NEWMARK HOME CORPORATION
By: /s/ XXXXX XXXXX
-----------------------------
Xxxxx Xxxxx,
Chief Financial Officer
-3-
4
NHC HOMES, INC.
By: /s/ XXXXX XXXXXX
-----------------------------
Xxxxx Xxxxxx, President
NEWMARK HOMES, L.P.
By: NEWMARK HOME CORPORATION,
Its Sole General Partner,
a Nevada corporation
By: /s/ XXXXX XXXXX
-----------------------------
Xxxxx Xxxxx,
Chief Financial Officer
BANK ONE, TEXAS, N.A.
By: /s/ XXXX XXXX
-----------------------------
Xxxx Xxxx
Vice President
-4-
5
STATE OF TEXAS )
)
COUNTY OF FORT BEND )
This instrument was acknowledged before me on the 30th day of
September, 1996 by Xxxxx Xxxxx, Chief Financial Officer of Newmark Home
Corporation, a Nevada corporation, on behalf of said corporation.
/s/ XXXXX XXXXXX
[NOTARY PUBLIC SEAL] -----------------------------------
Notary Public's Signature
STATE OF NEW YORK )
)
BOROUGH OF MANHATTAN )
This instrument was acknowledged before me on the 3rd day of October,
1996 by Xxxxx Xxxxxx, President of NHC Homes, a Nevada corporation, on behalf
of said corporation.
/s/ XXXXXXX X. XXXX
-----------------------------------
Notary Public's Signature
[NOTARY PUBLIC SEAL]
STATE OF TEXAS )
)
COUNTY OF FORT BEND )
This instrument was acknowledged before me on the 30th day of
September, 1996 by Xxxxx Xxxxx, Chief Financial Officer of Newmark Home
Corporation, a Nevada corporation, Sole General Partner of Newmark Homes, L.P.,
on behalf of said limited partnership.
/s/ XXXXX XXXXXX
[NOTARY PUBLIC SEAL] -----------------------------------
Notary Public's Signature
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on the 5th day of November
1996 by Xxxx Xxxx, Vice President of Bank One, Texas, N.A., on behalf of said
national association.
/s/ XXXXXXX X. XXXXXXXXX
[NOTARY PUBLIC SEAL] -----------------------------------
Notary Public's Signature
-5-
