1
EXHIBIT 10.16(c)
SUPPLEMENTAL DEED OF TRUST AND SECURITY AGREEMENT
THE STATE OF TEXAS (
( KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________ (
That the undersigned Newmark Homes, L.P., a Texas limited partnership,
whose address for notice hereunder is 00000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxx 00000 (hereinafter called the "Grantor"), in consideration of TEN AND
NO/100 DOLLARS ($10.00) cash in hand paid by Xxxxxxxx X. Xxxxxx, Trustee
(hereinafter called the "Trustee"), the receipt of which payment is hereby
acknowledged and confessed, and of the debt and trust hereinafter mentioned,
has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT,
BARGAIN, SELL and CONVEY unto the Trustee, and unto the successor or substitute
Trustee hereinafter provided, the following property situated in ______________
County, Texas, to-wit:
INSERT LEGAL DESCRIPTION
together with all buildings and other improvements thereon and hereafter placed
thereon, and all fixtures, materials, equipment, apparatus, furniture,
furnishings and other property, real and personal, now or hereafter installed
or used on the above described property or the improvements thereon, including,
but not limited to: (i) all heating, lighting, refrigeration, plumbing,
ventilating, incinerating, water-heating, cooking and air conditioning
equipment, fixtures and appurtenances, and other chattels and personal property
used or furnished in connection with the operation, use and enjoyment of the
above described property and the improvements thereon, (ii) irrigation and
drainage equipment, and (iii) all surface and underground water rights,
drainage rights, wastewater capacity reservations, utility letters, renewal
letters, permits, reservations, capital recovery charge receipts or any other
document or instrument relating to the furnishing of utilities to and on the
above-described property or any portion thereof (including, without limitation,
water supply, sewage, gas, electric and telephone facilities) (the property
described in this subparagraph (iii) is referred to in this Deed of Trust as
the "Utility Rights), and all renewals, replacements and substitutions thereof
and additions thereto, all of which said property and fixtures shall be deemed
to be a part of and affixed to the above described real property; all rents,
revenues, bonus money, royalties, rights and benefits accruing to the Grantor
under all present and future oil, gas and mineral leases on any part of the
above described property; and all the estate, right, title and interest of
every nature whatsoever of
-1-
2
the Grantor in and to all of the foregoing and every part and parcel thereof.
TO HAVE AND TO HOLD the above described property, together with all
and singular the rights, privileges, hereditaments and appurtenances thereunto
in anywise incident, appertaining or belonging (all of which are hereinafter
called the "Premises") unto the Trustee, and his successors or substitutes
forever; and the Grantor hereby binds itself, its successors, assigns and legal
representatives, to warrant and forever defend title to said Premises unto the
Trustee, his successors and substitutes, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through, or
under it, but not otherwise.
ARTICLE I
This conveyance is made in trust on the following trusts, terms and
conditions, and for the purpose of securing and enforcing the payment and
performance of the following (hereinafter called the "Obligations"): (a) the
payment of all the Indebtedness (as defined in the hereinafter identified Loan
Agreement) of the Grantor to BANK UNITED, a federally chartered savings bank,
whose address is 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, Texas, Suite 2000, Xxxxxxx,
Xxxxx 00000 (hereinafter, together with any subsequent transferee, assignee,
holder, or owner of the obligations, called the "Beneficiary"), now or
hereafter existing under or in connection with that certain Loan Agreement
dated as of June 28, 1990, as amended by that certain First Amendment to Loan
Agreement dated as of May 14, 1991, as further amended by that certain Second
Amendment to Loan Agreement dated as of June 28, 1991, as further amended by
that certain Third Amendment to Loan Agreement dated as of March 17, 1992, as
further amended by that certain Fourth Amendment to Loan Agreement dated as of
June 28, 1992, as further amended by that certain Fifth Amendment to Loan
Agreement dated as of June 28, 1993 as further amended by that certain Sixth
Amendment to Loan Agreement dated as of June 28, 1994, as further amended by
that certain Seventh Amendment to Loan Agreement dated as of May 28, 1995, as
further amended by that certain Eighth Amendment to Loan Agreement dated as of
February 28, 1996, as further amended by that certain Ninth Amendment to Loan
Agreement dated as of May 28, 1996, as further amended by that certain Tenth
Amendment to Loan Agreement dated as of October 1, 1996, as further amended by
that certain Eleventh Amendment to Loan Agreement dated as of November 15, 1996
and as further amended by that certain Twelfth Amendment to Loan Agreement
dated as of July 1, 1997 each by and between the Grantor or its predecessor and
the Beneficiary (said Loan Agreement, as the same may from time to time be
amended or supplemented, hereinafter called the "Loan Agreement"), including,
without limitation, all amounts from time to time outstanding under the Note
(as defined in the Loan Agreement), being that certain
-2-
3
revolving promissory note dated July 1, 1997 in the face amount of
$30,000,000.00, issued by the Grantor, payable to the order of the Beneficiary
and with final maturity on the earlier to occur of (i) May 28, 1998, or (ii)
the Completion Date of the last Interim Construction Loan originated prior to
the Drawdown Termination Date and any and all renewals, extensions for any
period, modifications, amendments, enlargements or rearrangements thereof; (b)
the performance of all obligations of the Grantor under this Deed of Trust or
any of the Security Instruments (as defined in the Loan Agreement), including
the Loan Agreement; (c) all other sums of money which may be hereafter paid or
advanced by or on behalf of the Beneficiary under the terms and provisions of
this Deed of Trust; (d) any additional loans made by the Beneficiary to the
Grantor (it being contemplated that the Beneficiary may lend additional sums to
the Grantor from time to time, but shall not be obligated to do so, and the
Grantor hereby agrees that any such additional loans shall be secured by this
Deed of Trust; and (e) any and all other indebtedness, obligations and
liabilities of any kind of the Grantor to the Beneficiary, now and hereafter
existing, absolute or contingent, joint and/or several, secured or unsecured,
due or not due, arising by operation of law or otherwise, or direct or
indirect, including indebtedness, obligations and liabilities to the
Beneficiary of the Grantor as a member of any partnership, syndicate,
association or other group, and whether incurred by the Grantor as principal,
surety, endorser, guarantor, accommodation party or otherwise, and whether
originally contracted with the Beneficiary or acquired by the Beneficiary
pursuant to a loan participation agreement or otherwise.
ARTICLE II
The Grantor hereby agrees that all of the provisions of Articles II,
III, IV and V of the Master Form of Deed of Trust and Security Agreement
Recorded by Bank United (the "Master Form"), filed for record on ______________
in the Office of the County Clerk of ______________ County, Texas, under
Clerk's File No. ____________ of the Official Public Records of Real Property
of ______________ County, Texas, are hereby incorporated herein by reference as
if such representations, warranties, covenants and other provisions set forth
in the Master Form were fully made in this Deed of Trust and Security Agreement
and apply to the Premises herein described as if they were set forth in this
Deed of Trust and Security Agreement.
ARTICLE III
If the obligations secured hereby are fully paid and performed in
accordance with the terms and provisions of this instrument, the Master Form,
the Note and all other Security Instruments, and if the covenants and
agreements contained herein
-3-
4
and in the Loan Agreement are kept and performed, then this conveyance shall
become null and void and shall be released at the expense of the Grantor;
otherwise, the same shall remain in full force and effect; and upon the
occurrence, and during the continuation of an Event of Default (as defined in
the Loan Agreement), then the Obligations secured hereby shall, at once or at
any time thereafter while any part of the Obligations remain unpaid, at the
option of any Beneficiary, become due and payable without demand or notice (all
rights to demand and notice being hereby expressly waived except as otherwise
expressly provided in the Loan Agreement), and it shall thereupon be the duty
of the above named Trustee, or his successor or substitute, as hereinafter
provided, to enforce this trust at the request of any Beneficiary (which
request shall be presumed) and to sell or offer for sale all or any part of the
Premises in such portions, order and parcels as Beneficiary may determine, with
or without having first taken possession of the same, to the highest bidder for
cash at public auction. Such sale shall be made in accordance with the terms
and provisions of the Master Form.
This Deed of Trust and Security Agreement is executed subject to the
matters set forth on ___________________ Commitment for Title Insurance (GF
#____________) dated _______________ as exceptions 1 and _____ through _____ on
Schedule B (the "Permitted Encumbrances"). This Deed of Trust and Security
Agreement is a "construction mortgage" within the meaning of Section 9.313 of
the Texas Business and Commerce Code in that it secures an obligation incurred
for the construction of improvements on land.
The Grantor hereby acknowledges receipt of a copy of the Master Form
upon the execution and delivery of this Deed of Trust and Security Agreement.
DATED and EFFECTIVE as of the ___ day of ________________, 19____.
NEWMARK HOMES, L.P.
By: Newmark Home Corporation,
General Partner
By:________________________________
Name:______________________________
Title:_____________________________
-4-
5
THE STATE OF TEXAS )
)
COUNTY OF ____________ )
This instrument was acknowledged before me on the _____ day of
______________, 19____, by _______________________________________ of Newmark
Home Corporation, a Nevada corporation, on behalf of said corporation and the
corporation acknowledged this instrument as partner on behalf of Newmark Homes,
L.P., a Texas limited partnership.
------------------------------
Notary Public in and for the
State of Texas
After recording, please return to:
Bank United
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Construction Loan Department
-5-
