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EXHIBIT 10.5(e)
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Second Amendment") is made and entered into as of the 1st day of October,
1996, by and among NEWMARK HOME CORPORATION, a Nevada corporation (the
"Original Borrower"), NEWMARK HOMES, L.P., a Texas limited partnership (the
"Company") and BANK ONE, TEXAS, N.A., a national banking association (the
"Lender").
WHEREAS, the Original Borrower and the Lender entered into that
certain Amended and Restated Loan Agreement dated April 30, 1996, which Amended
and Restated Loan Agreement was amended by that certain First Amendment to
Amended and Restated Loan Agreement dated June 28, 1996 between the Original
Borrower and the Lender (as amended, the "Loan Agreement");
WHEREAS, the indebtedness of the Original Borrower, to the Lender
under the Loan Agreement is secured by the Deeds of Trust and the Supplements;
and
WHEREAS, all of the property covered by the Deeds of Trust and the
Supplements has been assigned to the Company, together with the rights and
obligations of the Original Borrower under the Loan Agreement; and
WHEREAS, pursuant to a Modification Agreement among the Original
Borrower, NHC Homes, Inc., the Company and the Lender, the Company has assumed
all of the obligations of the Original Borrower under the Loan Agreement; and
WHEREAS, the Original Borrower, 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. The definition of the "Company" in the opening paragraph of
the Loan Agreement is hereby amended to mean Newmark Homes, L.P., a Texas
limited partnership.
2. There are added to Section 1.2(a) of the Loan Agreement the
following definitions:
"Debt to Worth Ratio" shall mean the ratio of Debt to Tangible
Net Worth.
"Original Borrower" shall mean Newmark Home Corporation, a
Nevada corporation.
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"Tangible Net Worth" shall mean the total assets of the
Company (valued at cost, less normal depreciation), less all
liabilities of the Company.
3. The definition of "Initial Deeds of Trust" in Section 1.2(a)
of the Loan Agreement is deleted in its entirety, and the following is
substituted in its place:
"Initial Deeds of Trust" shall mean those Deeds of Trust,
Security Agreement and Assignment of Rents and Leases executed by the
Original Borrower for the benefit of the Bank and recorded in the Real
Property Records of Brazoria, Xxxxxx, Fort Bend, Galveston, Travis,
Dallas, Collin, Tarrant and Xxxxxxxxxx Counties, Texas, and any other
Deed of Trust, Security Agreement and Assignment of Rents and Leases
executed by the Company for the benefit of the Bank in the form
attached to the Second Amendment as Exhibit "B" and to be recorded in
other counties approved by the Bank, each of which covers or shall
cover (i) the first set of Lots in each such county which are added to
the Borrowing Base, and the Improvements to be constructed thereon,
and (ii) the Collateral described in Section 3.10 hereof relating to
such Lots and Improvements.
4. Subsection (b) of the definition of "Legal Requirements" in
Section 1.2(a) of the Loan Agreement is deleted in its entirety, and the
following is substituted in its place:
(b) the Company's presently or subsequently effective partnership
agreement,
5. The definition of "Note" in Section 1.2(a) of the Loan
Agreement is deleted in its entirety, and the following is substituted in its
place:
"Note" shall mean the promissory note of the Company issued
pursuant to Section 1.3 of this Agreement in the form attached as
Exhibit "A" to the Second Amendment.
6. The definition of "Pacific Realty Group" in Section 1.2(a) of
the Loan Agreement is deleted in its entirety, and the following is substituted
in its place:
"Pacific Realty Group" shall mean Pacific Realty Group, Inc.,
which owns all of the issued and outstanding capital stock of the
Original Borrower.
7. The definition of "Supplement" in Section 1.2(a) of the Loan
Agreement is deleted in its entirety, and the following is substituted in its
place:
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"Supplement" shall mean a Supplemental Deed of Trust, Security
Agreement and Financing Statement executed by the Original Borrower,
or to be executed by the Company in the form attached as Exhibit "C"
to the Second Amendment, whereby a Lot and the Improvements thereon or
to be constructed thereon, and the Collateral described in Section
3.10 hereof relating to such Lot and Improvements, are made subject to
the liens created by the Initial Deed of Trust previously filed in the
county in which such Lot is located.
8. Sections 2.1 and 2.2 of the Loan Agreement are deleted in
their entirety, and the following are substituted in their place:
2.1 Existence. The Company is a limited partnership duly
organized, legally existing and in good standing under the laws of the
State of Texas and duly qualified as a foreign limited partnership in
all jurisdictions wherein the property owned or the business
transacted by it make such qualification necessary. The Original
Borrower is the sole general partner of the Company. The Original
Borrower is a corporation duly organized, legally existing and in good
standing under the laws of the State of Nevada and duly qualified as a
foreign corporation in the State of Texas and in all other
jurisdictions wherein the property owned or the business transacted by
it makes such qualification necessary.
2.2 Authority. The Company is duly authorized and
empowered to create and issue the Note, and to execute and deliver the
Security Instruments, and all other instruments referred to or
mentioned herein, and all partnership action requisite for the due
creation, issuance and delivery of the Note and the due execution and
delivery of the Security Instruments has been duly and effectively
taken. This Agreement, the Note and the other Security Instruments,
when executed and delivered, will be valid and binding obligations of
the Company enforceable in accordance with their terms (subject to any
applicable bankruptcy, insolvency or other laws generally affecting
the enforcement of creditors' rights). This Agreement, the Note and
the other Security Instruments do not violate any provision of the
Company's partnership agreement, or any contract, agreement, law or
regulation to which the Company is subject, and the same do not
require the consent or approval of any regulatory authority or
governmental body of the United States of America or any state.
9. Section 3.3 of the Loan Agreement is deleted in its entirety,
and the following is substituted in its place:
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3.3 Maintenance. The Company will maintain its partnership
existence and remain in or become a limited partnership in good
standing in each jurisdiction in which it is required to be qualified.
The Company will maintain all patents, trademarks, franchises and
licenses necessary in its business, and comply with all Legal
Requirements, and it will maintain or cause to be maintained its
properties in good and workable condition at all times. The Company
shall continue to conduct, operate and manage its business
substantially as its business is currently being conducted, managed
and operated.
10. Section 4.1 of the Loan Agreement is deleted in its entirety,
and the following is substituted in its place:
4.1 Distributions and Redemptions. The Company will not
declare or pay any distributions on account of, or purchase, acquire,
redeem or retire, any partnership interest in the Company, whether now
or hereafter outstanding, if such declaration, payment, purchase,
acquisition or redemption results or will result in the occurrence of
a Default or an Event of Default hereunder.
11. Section 4.10 of the Loan Agreement is deleted in its entirety,
and the following is substituted in its place:
4.10 Loans and Advances to Employees, Etc. The Company
shall not at any time allow more than an aggregate amount of
$200,000.00 in loans and advances to be outstanding to its employees
or partners, or to the employees, officers, directors and shareholders
of any partner of the Company.
12. The first sentence of Section 7.1 of the Loan Agreement is
deleted in its entirety, and the following is substituted in its place:
Section 7.1 Change of Ownership or Control. If at any
time while the Note shall be outstanding or the Bank has a commitment
hereunder, Pacific Realty Group shall own, directly or indirectly,
less than all of the limited partnership interests of the Company, the
Original Borrower shall own less than all of the general partnership
interests of the Company, or Pacific Realty Group shall own less than
all of the issued and outstanding capital stock of the Original
Borrower, then, in any such event, a "Change of Ownership or Control"
shall be deemed to have occurred.
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13. Exhibit "D" to the Loan Agreement is deleted in its entirety,
and Exhibit "D" attached hereto is substituted in its place.
14. The closing of the transactions contemplated by this Second
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 Xxxxx Xxxxxx & Xxxxx,
L.L.P., counsel to the Lender;
(b) The Lender shall have received fully executed copies
of this Second Amendment and the Note;
(c) The Lender shall have received an executed copy of
resolutions of the Board of Directors of the Original Borrower, in
form and substance satisfactory to the Lender, authorizing the
execution, delivery and performance by the Company of this Second
Amendment and all documents, instruments and certificates referred to
herein;
(d) The Lender shall have received a certificate of the
Assistant Secretary of the Original Borrower, setting forth the names
of the officers of the Original Borrower authorized to execute and
deliver this Second Amendment and all documents, instruments and
certificates referred to herein on behalf of the Company, together
with the true signatures of such officers; and
(e) The Lender shall have received an opinion of counsel
to the Company and the Original Borrower, satisfactory in form and
scope to the Lender and its counsel.
15. The Company hereby makes each of the representations,
warranties, covenants and agreements of the Original Borrower 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.
16. The Company hereby agrees that its liability under any and all
documents and instruments executed by the Original Borrower 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 Second Amendment or any of the instruments or
documents referred to herein, except as specifically set forth herein or
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therein, that all of such documents and instruments are hereby renewed,
extended, ratified, confirmed and carried forward 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.
17. Each of the terms defined in the Loan Agreement is used in
this Second Amendment with the same meaning, except as otherwise indicated in
this Second Amendment. Each of the terms defined in this Second Amendment is
used in the Loan Agreement with the same meaning, except as otherwise indicated
in the Loan Agreement.
18. THIS SECOND 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.
19. 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 Second Amendment to
be executed by their duly authorized officers as of the day and year first
above written.
NEWMARK HOME CORPORATION
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
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Title: SVP
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NEWMARK HOMES, L.P.
By: Newmark Home Corporation,
its sole general partner
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
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Title: SVP
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BANK ONE, TEXAS, N.A.
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
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Title: Vice President
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