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EXHIBIT 10.15(c)
SECOND
MODIFICATION AGREEMENT
THIS SECOND MODIFICATION AGREEMENT (this "Agreement") is made and
entered into as of the 10th day of January, 1997, by and among MELLON BANK,
N.A. ("Bank"), and Newmark Homes, L.P., a Texas limited partnership
("Borrower").
W I T N E S S E T H:
WHEREAS, Bank previously extended or agreed to extend credit to
Newmark Home Corporation ("Newmark"), as evidenced by that certain Construction
Loan Agreement dated as of January 10, 1996 (such Construction Loan Agreement,
as amended from time to time, being referred to herein as the "Original Loan
Agreement"), with advances thereunder to be evidenced by the Revolving
Construction Facility Note of same date in the original principal amount of TEN
MILLION AND NO/100 DOLLARS ($10,000,000) (such promissory note as modified by
the First Modification Agreement (hereinafter defined), this Second
Modification Agreement, and as further renewed, rearranged, or extended, is
hereinafter referred to as the "Note"); and
WHEREAS, pursuant to Modification Agreement dated as of October 1,
1996 executed by and among Bank, Newmark, NHC Homes, Inc. and Borrower (the
"First Modification Agreement"), Borrower assumed the liabilities, obligations,
and indebtedness of Newmark under the Note and the Original Loan Agreement; and
WHEREAS, Bank and Borrower are amending and restating in its entirety
the Original Loan Agreement and, among other things, Bank is increasing its
commitment thereunder to $20,000,000, subject to all the terms and conditions
of the Amended and Restated Credit Agreement; and
WHEREAS, Bank is the present owner and holder of the Note and the
"Beneficiary" under the Mortgages securing the same, and Borrower and Bank
desire to amend and modify the Note and to extend the liens granted in favor of
Bank pursuant to the various Deeds of Trust, Security Agreements and Financing
Statements in favor of X. Xxxxxxx Xxxxxx, Trustee, for the benefit of Bank
incorporating by reference the terms and conditions of the Master Deed of
Trust;
NOW, THEREFORE, in consideration of the mutual covenants,
considerations and agreements contained herein, it is agreed as follows:
1. The outstanding principal balance of the Note as of January
10, 1997 is $5,075,326.28.
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2. The commitment of the Bank has been increased subject to the
terms and conditions of the Amended and Restated Construction Loan Agreement of
even date herewith executed by and between Bank and Borrower. The maximum
stated principal amount of the Note is increased to $20,000,000. The principal
of the Note is and shall be due and payable on October 10, 1998.
3. Accrued and unpaid interest at the rate specified in the Note
shall remain due and payable monthly on the days specified in the Note.
4. This Second Modification Agreement, the Note, the Security
Instruments, and the maximum rate of nonusurious interest applicable to the
loan evidenced by the Note shall be governed by (i) the laws of the United
States of America and the State of Texas in effect on the date of the loan
evidenced by the Note, (ii) to the extent allowed by applicable law, such laws
as are presently in effect, to the extent they provide a higher maximum rate of
nonusurious interest than laws in effect on the date of the loan and, (iii) to
the extent allowed by applicable law, such laws as may hereafter be in effect
to the extent they provide a higher maximum rate of nonusurious interest than
laws presently in effect. In no event shall Tex. Rev. Civ. Stat. Xxx. Art.
0000 Xx. 15, as amended (which regulates certain revolving loan accounts and
revolving triparty accounts) apply hereto or thereto.
5. Unless changed in accordance with law, the applicable rate
ceiling under Texas law shall be the indicated (weekly) rate ceiling from time
to time in effect as provided in Tex. Rev. Civ. Stat. Xxx. Art. 5069-1.04, as
amended.
6. Except as herein modified, the Note (including provisions
therein, if any, providing for recapture of interest in the event the otherwise
stated rate of interest is limited by the highest lawful contract rate), the
Security Instruments, as supplemented, and all other instruments executed in
connection with or as security for the payment of the Note, or in the
performance of the Borrower's obligations under any and all of such
instruments, shall in all respects remain in full force and effect according to
the terms, provisions and conditions thereof, and any and all rights, titles,
interests, liens and powers created or existing thereunder are renewed,
extended and carried forward hereby.
7. Borrower hereby ratifies and confirms its assumption of and
agreement to pay all obligations, liabilities and indebtedness arising under
the Note, as increased hereby or under the Security Instruments.
8. Capitalized terms used but not defined herein shall have the
meaning set forth in the Amended and Restated Credit Agreement.
9. This Agreement shall not be effective until it has been
executed in Pittsburgh, Pennsylvania by Bank.
10. This Agreement is being executed in multiple original
counterparts. For recording purposes, various counterparts have been executed
for recording. Each of such
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counterparts shall for all purposes be deemed to be an original and all such
counterparts shall together constitute but one and the same instrument.
11. THIS SECOND MODIFICATION AGREEMENT, THE NOTE, THE LOAN
AGREEMENT, THE MORTGAGES AND THE OTHER SECURITY INSTRUMENTS REPRESENT THE
ENTIRE AGREEMENT OF THE PARTIES HERETO 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.
Address: NEWMARK HOMES, L.P.
00000 Xxxxxxxxxx, Xxx. 000
Xxxxxxxx, XX 00000 By: NEWMARK HOME CORPORATION,
Its Sole General Partner
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx, Chief Financial Officer
Address: MELLON BANK, N.A.
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
By:
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Name:
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Title:
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THE STATE OF TEXAS )
)
COUNTY OF FORT BEND )
This instrument was acknowledged before me on March 10, 1997 by
Xxxxx Xxxxx, Chief Financial Officer of Newmark Home Corporation, a Nevada
corporation, Sole General Partner of Newmark Homes, L.P., a Texas limited
partnership, on behalf of said limited partnership.
/s/ XXXXX XXXXXX
[SEAL] ---------------------------------------
Notary Public, State of Texas
THE STATE OF PENNSYLVANIA )
)
COUNTY OF ________________________ )
This instrument was acknowledged before me on ________________, 1997
by _______________________, __________________ of Mellon Bank, N.A., a national
banking association, on behalf of said banking association.
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Notary Public, State of Pennsylvania
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