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EXHIBIT 10.5(d)
THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Third Amendment") is made and entered into as of the 1st day of October, 1996,
by and between NEWMARK HOMES, L.P., a Texas limited partnership (the
"Company"), and BANK ONE, TEXAS, N.A., a national banking association (the
"Lender").
WHEREAS, Newmark Home Corporation, a Nevada corporation, (the
"Original Borrower"), and the Lender entered into that certain Amended and
Restated Loan Agreement (the "Original Loan Agreement") dated April 30, 1996,
which was amended by that certain First Amendment to Amended and Restated Loan
Agreement, (the "First Amendment") dated June 28, 1996 between the Original
Borrower and the Lender;
WHEREAS, all of the property securing repayment of the indebtedness of
the Original Borrower pursuant to the Original Loan Agreement, as amended by
the First Amendment, was assigned to the Company, together with the rights and
obligations of the Original Borrower under the Original Loan Agreement, as
amended by the First Amendment; and
WHEREAS, pursuant to a Modification Agreement among the Original
Borrower, NHC Homes, Inc., the Company and the Lender, the Company assumed all
of the obligations of the Original Borrower under the Original Loan Agreement,
as amended by the First Amendment; and
WHEREAS, after giving effect to the Modification Agreement, the
Original Borrower, the Company and the Lender entered into that certain Second
Amendment to Amended and Restated Loan Agreement (the "Second Amendment") dated
October 1, 1996; and
WHEREAS, the Original Loan Agreement, as amended by the First
Amendment and the Second Amendment, is referred to herein as the "Loan
Agreement"; and
WHEREAS, the Company and the Lender desire to amend certain terms and
provisions of the Loan Agreement, as set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Section 4.6(a)(i) of the Loan Agreement is deleted in its
entirety, and the following is substituted in its place:
(i) between May 1 and August 31 of any year allow (a) the
number of Speculative Homes (regardless of location) included in the
Borrowing Base to be greater than sixty percent (60%) of the number of
all Single Family Houses included in the Borrowing Base, or (b) the
aggregate Deed of
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Trust Amounts for all Speculative Homes (regardless of location)
included in the Borrowing Base to be greater than sixty percent (60%)
of the Aggregate Deed of Trust Amount. The foregoing limitations
shall be increased to sixty-five percent (65%) with respect to all
times between September 1 of any year and through April 30 of the
succeeding year;
2. Section 4.6(a)(ii) of the Loan Agreement is amended by
inserting at the end thereof the following sentence:
The foregoing limitation shall be increased to sixty-five percent
(65%) with respect to all times between September 1 of any year and
through April 30 of the succeeding year;
3. The closing of the transactions contemplated by this Third
Amendment is subject to the satisfaction of the following conditions:
(a) All legal matters incident to the transactions herein
contemplated shall be satisfactory to Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇,
L.L.P., counsel to the Lender;
(b) The Lender shall have received a fully executed copy
of this Third Amendment and a Notice of Final Agreement; and
(c) The Lender shall have received an executed copy of
resolutions of the Board of Directors of the general partner of the
Company, in form and substance satisfactory to the Lender, authorizing
the execution, delivery and performance by the Company of this Third
Amendment and all documents, instruments and certificates referred to
herein.
4. The Company hereby reaffirms each of the representations,
warranties, covenants and agreements of the Original Borrower and the Company
set forth in the Loan Agreement, as amended hereby, with the same force and
effect as if each were separately stated herein and made as of the date hereof.
Except as amended hereby, the Loan Agreement shall remain unchanged, and the
terms, conditions and covenants of the Loan Agreement shall continue and be
binding upon the parties hereto.
5. The Company hereby agrees that its liability under any and all
documents and instruments executed by the Original Borrower or the Company as
security for the Indebtedness (including, without limitation, the Security
Instruments) shall not be reduced, altered, limited, lessened or in any way
affected by the execution and delivery of this Third Amendment or any of the
instruments or documents referred to herein, except as specifically set forth
herein or therein, that all of such documents and instruments are hereby
renewed, extended, ratified, confirmed and carried forward
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by the Company in all respects, that all of such documents and instruments
shall remain in full force and effect and are and shall remain enforceable
against the Company in accordance with their terms and that all of such
documents and instruments shall cover all indebtedness of the Company to the
Lender described in the Loan Agreement as amended hereby.
6. Each of the terms defined in the Loan Agreement is used in
this Third Amendment with the same meaning, except as otherwise indicated in
this Third Amendment. Each of the terms defined in this Third Amendment is
used in the Loan Agreement with the same meaning, except as otherwise indicated
in the Loan Agreement.
7. THIS THIRD AMENDMENT SHALL BE DEEMED TO BE A CONTRACT UNDER,
SUBJECT TO, AND SHALL BE CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS
OF THE STATE OF TEXAS.
8. THIS LOAN AGREEMENT, AS AMENDED, 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 have caused this Third Amendment to be
executed by their duly authorized officers as of the day and year first above
written.
NEWMARK HOMES, L.P.
By: Newmark Home Corporation,
its sole general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: SVP
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BANK ONE, TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
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