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EXHIBIT 10.1
FIRST AMENDMENT TO
CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment") entered
into as of January 1, 2001, by and among NEWMARK HOMES, L.P., a Texas limited
partnership ("Borrower"), 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"), and such 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 certain definitions
found in Section 1.01 of the Credit Agreement.
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 Definitions. The definitions of
"Consolidated Adjusted Working Capital", "Consolidated Current Assets",
"Consolidated Current Liabilities" and "Consolidated Working Capital" found in
Section 1.01 of the Credit Agreement are hereby deleted in their entirety and
replaced with the following definitions:
"Consolidated Adjusted Working Capital" means Consolidated Working
Capital.
"Consolidated Current Assets" means, as of any date of determination,
the aggregate amount of the following line items as shown on the then
current consolidated financial statements of Borrower and its
Subsidiaries prepared in accordance with GAAP: "Cash", "Securities"
(restricted and unrestricted), "Accounts Receivable", "Inventory"
(Homes and Model Units), "Lots and Land Under Development" and "Lot
Deposits"; provided, that, with respect to the audited financial
statements for Borrower and its Subsidiaries, the amount of certain of
the above line items may be obtained from the back-up statements or
reports to such audited financial statements.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of the following line items as
shown on the then current consolidated financial statements of Borrower
and its Subsidiaries prepared in accordance with GAAP: "Accounts
Payable", "Accruals", "Note Payables for Construction Loans, Lot Loans
and Acquisition and Development Loans", "Current Maturities of Long
Term Debt (including subordinated debt), "Customer Deposits",
"Subordinated Debt Due to Related Parties" and "Warranty Reserves";
provided, that, with respect to the audited financial statements for
Borrower and its Subsidiaries, the amount of certain of the above line
items may be obtained from the back-up statements or reports to such
audited financial statements.
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"Consolidated Working Capital" means (a) Consolidated Current Assets
minus (b) Consolidated Current Liabilities.
Section 1.2 Section 1.2. Exhibit B to Credit Agreement. Exhibit B to
the Credit Agreement is hereby deleted in its entirety and replaced with Exhibit
B attached to this Amendment.
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 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
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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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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/ Xxxxx X. Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent for Lenders
By: /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
Title: Vice President
BANK UNITED
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President
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GUARANTY FEDERAL BANK, F.S.B.
By: /s/ Xxxxxx XxXxxx
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Name: Xxxxxx XxXxxx
Title: Vice President
BANK ONE, TEXAS, N.A.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
COMERICA BANK - TEXAS
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
Title: Vice President
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