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EXHIBIT 10.5(f)
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"First Amendment") is made and entered into as of the ____ day of June, 1996,
by and between NEWMARK HOME CORPORATION, a Nevada corporation (the "Borrower"),
and BANK ONE, TEXAS, N.A., a national banking association (the "Lender").
WHEREAS, the Borrower and the Lender entered into that certain Amended
and Restated Loan Agreement dated April 30, 1996 (the "Loan Agreement");
WHEREAS, the Borrower 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 "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
Company 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
First 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.
2. The definition of "Maximum Outstanding Amount" in Section
1.2(a) of the Loan Agreement is deleted in its entirety, and the following is
substituted in its place:
"Maximum Outstanding Amount" shall mean, at any given time,
the lesser of (i) the Borrowing Base Value at such time and (ii)
$25,000,000.00.
3. 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:
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"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 First Amendment.
4. 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:
"Supplement" shall mean a Supplemental Deed of Trust, Security
Agreement and Financing Statement to be executed by the Company in the
form attached as Exhibit "C" to the First 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.
5. Section 1.1 of the Loan Agreement is deleted in its entirety,
and the following is substituted in its place:
1.1 Indebtedness. Upon the terms and conditions
hereinafter set forth, the Bank agrees to lend the Company an
aggregate of up to $25,000,000.00, as evidenced by a Revolving Line of
Credit to be extended to the Company by the Bank, as more specifically
described in Section 1.3 hereof.
6. The last sentence of Section 1.3 of the Loan Agreement is
deleted in its entirety, and the following is substituted in its place:
All unpaid principal and accrued and unpaid interest on the Note shall
be due and payable on April 30, 1997, unless extended pursuant to the
provisions of the succeeding sentence. In the event the Bank elects
to not renew the Revolving Line of Credit as of the stated maturity
date of the Note, the Company shall have the option, provided no
Default or Event of Default has occurred and is continuing, by giving
written notice to the Bank of the Company's intent to extend the
stated final maturity date of the Note, which notice must be received
by the Bank on or prior to the earlier of (i) April 30, 1997 or (ii)
five (5) Business Days after the date the Bank gives written notice to
the Company of the Bank's election to not renew the Revolving Line of
Credit, and upon the issuance by each Title Insurer of an extension to
all Title Insurance that would expire between the stated maturity date
of the Note and such extended maturity date, to extend the final
maturity date of the Note for an additional two hundred seventy (270)
days, which extension shall not affect the obligation of
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the Company to make monthly interest payments and prepayments required
under the Note and this Agreement, or to otherwise comply with the
terms and conditions of the Note and this Agreement.
7. Subsection 4.6(a)(v) of the Loan Agreement is deleted in its
entirety, and all references to such subsection in the Loan Agreement and the
other Security Instruments are hereby deleted.
8. Exhibit "D" to the Loan Agreement is deleted in its entirety
and Exhibit "D" attached hereto is substituted in its place.
9. The closing of the transactions contemplated by this First
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 First Amendment and the Note;
(c) The Lender shall have received an executed copy of
resolutions of the Board of Directors of the Borrower, in form and
substance satisfactory to the Lender, authorizing the execution,
delivery and performance of this First Amendment and all documents,
instruments and certificates referred to herein; and
(d) The Lender shall have received a certificate of the
Assistant Secretary of the Borrower, setting forth the names of the
officers of the Borrower authorized to execute and deliver this First
Amendment and all documents, instruments and certificates referred to
herein, together with the true signatures of such officers.
10. The Borrower hereby reaffirms each of the representations,
warranties, covenants and agreements of the Borrower set forth in the Loan
Agreement 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.
11. The Borrower hereby agrees that its liability under any and
all documents and instruments executed by the Borrower as security for the
Indebtedness (including, without limitation, the Security Instruments) shall
not be reduced, altered, limited,
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EXHIBIT 10.5(f)
lessened or in any way affected by the execution and delivery of this First
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 by the Borrower 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 Borrower in accordance with their terms and that all of
such documents and instruments shall cover all indebtedness of the Borrower to
the Lender described in the Loan Agreement as amended hereby.
12. Each of the terms defined in the Loan Agreement is used in
this First Amendment with the same meaning, except as otherwise indicated in
this First Amendment. Each of the terms defined in this First Amendment is
used in the Loan Agreement with the same meaning, except as otherwise indicated
in the Loan Agreement.
13. THIS FIRST 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.
14. 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 First 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: Senior Vice President
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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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