EXHIBIT 10.9(b)
SECOND AMENDMENT TO
CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Amendment") entered
into as of December 1, 2001, by and among NEWMARK HOMES, L.P., a Texas limited
partnership ("Borrower") and BANK OF AMERICA, N.A., a national banking
association ("Agent"), as administrative agent for itself and such other
entities from time to time designated as "Lenders" under the Credit Agreement
(herein defined) (the "Lenders").
WITNESSETH:
WHEREAS, Borrower, Agent and Lenders entered into that certain Credit
Agreement, dated as of June 27, 2000, pursuant to which Lenders agreed to
provide a revolving line of credit to Borrower (as heretofore or hereafter
amended, the "Credit Agreement") (each capitalized term used herein, but not
otherwise defined shall have the same meaning given to it in the Credit
Agreement); and
WHEREAS, Borrower and Lenders have agreed to revise Section 8.13(c) of
the Credit Agreement as herein provided.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower, Agent
and Lenders hereby covenant and agree as follows:
ARTICLE I - AMENDMENTS
Section 1.1 Modification to Section 8.13(c) of the Credit Agreement.
Section 8.13(c) of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
(c) Permit the number of completed Speculative Units to exceed 25% of
all Homes and Model Units from December 1, 2001 to January 31, 2002 or to exceed
20% of all Homes and Model Units at all other times.
ARTICLE II - MISCELLANEOUS
Section 2.1. Conditions Precedent. As conditions precedent to closing
this Amendment, Borrower shall have executed and delivered to Agent this
Agreement.
Section 2.2. Continuing Effect. Except as modified and amended hereby,
the Credit Agreement and other Loan Documents are and shall remain in full force
and effect in accordance with their terms.
Section 2.3. Binding Agreement. This Amendment shall be binding upon,
and shall inure to the benefit of, the parties' respective representatives,
successors and assigns.
Section 2.4. Nonwaiver of Events of Default. Neither this Amendment nor
any other document executed in connection herewith constitutes or shall be
deemed (a) a waiver of, or consent by Agent or any Lender to, any default or
event of default which may exist or hereafter occur under any of the Loan
Documents, (b) a waiver by Agent or any Lender of any of Borrower's obligations
under the Loan Documents, or (c) a waiver by Agent or any Lender of any rights,
offsets, claims, or other causes of action that "Agent or any Lender may have
against Borrower.
Section 2.5. No Defenses. Borrower, by its execution of this Amendment,
hereby declares that to its knowledge, it has no set-offs, counterclaims,
defenses or other causes of action against Agent or any Lender arising out of
the Credit Agreement, any documents mentioned
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EXHIBIT 10.9(b)
herein or otherwise; and, to the extent any such known setoffs, counterclaims,
defenses or other causes of action may exist, such items are hereby waived by
Borrower.
Section 2.6. Payment of Expenses. Borrower agrees to pay to Agent the
reasonable attorneys' fees and expenses of Agent's counsel and other expenses
incurred by Agent in connection with this Amendment.
Section 2.7. Counterparts. This Amendment may be executed in several
counterparts, all of which are identical, each of which shall be deemed an
original, and all of which counterparts together shall constitute one and the
same instrument, it being understood and agreed that the signature pages may be
detached from one or more of such counterparts and combined with the signature
pages from any other counterpart in order that one or more fully executed
originals may be assembled.
Section 2.8. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT FEDERAL LAWS PREEMPT THE LAWS OF THE STATE OF TEXAS.
Section 2.9. Entire Agreement. This Amendment, together with the other
Loan Documents, contain the entire agreements between the parties relating to
the subject matter hereof and thereof. This Amendment and the other Loan
Documents may be amended, revised, waived, discharged, released or terminated
only by a written instrument or instruments, executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER HEREIN CONTAINED 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.
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EXHIBIT 10.9(b)
IN WITNESS WHEREOF, this Amendment is executed effective as of the
date first written above.
BORROWER:
NEWMARK HOMES, L.P., a Texas limited
partnership
By: Newmark Home Corporation, a Nevada
corporation, its General Partner
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: President
-------------------------------
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent
for Lenders
By: /s/ Xxxxxxx X. Xxx
--------------------------------------
Name: Xxxxxxx X. Xxx
------------------------------------
Title: Vice President
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EXHIBIT 10.9(b)
CONSENT OF GUARANTORS
The undersigned Guarantors hereby agree and consent to the foregoing
amendments and acknowledge that their Guaranties are not terminated, waived or
otherwise affected by the execution of this Amendment by Borrower.
GUARANTORS:
NEWMARK HOMES CORP.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: President
-----------------------------------
NEWMARK HOME CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: President
-----------------------------------
NHC HOMES, INC.
By: /s/ Yannis Delikanankis
--------------------------------------
Name: Yannis Delikanakis
------------------------------------
Title: President
-----------------------------------
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