EIGHTH AMENDMENT TO LOAN AGREEMENT
THIS EIGHTH AMENDMENT TO LOAN AGREEMENT (this "AMENDMENT") is executed
as of October 21, 1995, by and among GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation ("LENDER"), MXM MORTGAGE, L.P., a Delaware limited
partnership ("NEW BORROWER"), and MXM MORTGAGE CORP., a Delaware
corporation ("OLD BORROWER"; New Borrower and Old Borrower being herein
together sometimes called "BORROWER"), on the following terms and
conditions:
RECITALS:
A. Lender and Old Borrower entered into that Loan Agreement dated
June 17, 1991, as amended by letter amendment dated August 22, 1991, as
further amended by First Renewal, Extension and Modification Agreement (the
"FIRST MODIFICATION") dated June 17, 1992 among Lender, Old Borrower, and
Maxxam Inc. and Maxxam Group Inc., as further amended by Loan Increase,
Extension and Modification Agreement (the "INCREASE MODIFICATION") dated
December 30, 1992 among Lender, Old Borrower, Maxxam Inc. and Maxxam Group
Inc., as further amended by Fourth Amendment to Loan Agreement (the "FOURTH
AMENDMENT") dated as of December 30, 1993, among Lender, Old Borrower, and
New Borrower, as further amended by Fifth Amendment to Loan Agreement (the
"FIFTH AMENDMENT") dated as of March 31, 1994, among Lender, Old Borrower,
and New Borrower, as further amended by that Sixth Amendment to Loan
Agreement (the "SIXTH AMENDMENT") dated as of January 13, 1995 among
Lender, Old Borrower and New Borrower, and as further amended by that
Seventh Amendment to Loan Agreement (the "SEVENTH AMENDMENT") dated as of
March 31, 1995 among Lender, Old Borrower, and New Borrower (said Loan
Agreement, as amended, being herein called the "LOAN AGREEMENT"), pursuant
to which Lender has agreed to make a loan to Borrower (the "LOAN"), as
evidenced by a $115,220,000 Promissory Note dated June 17, 1991, (the
"ORIGINAL NOTE"), and a $17,740,000 Promissory Note dated December 30, 1992
(the "INCREASE NOTE"; the Original Note and the Increase Note being herein
together called the "NOTES"), each of the Notes bearing interest and being
payable to the order of Lender as therein provided;
B. Unless otherwise defined herein, all capitalized terms in this
Agreement shall have the same meanings assigned to such terms in the Loan
Agreement, and, as applicable, in the First Modification, the Increase
Modification, the Fourth Amendment, the Fifth Amendment, the Sixth
Amendment, and the Seventh Amendment;
C. Taking into account releases of collateral, the indebtedness
evidenced by the Original Note and the Increase Note is secured by, among
other collateral, the following:
(1) the following instruments styled First Deed of Trust and Security
Agreement (collectively called the "FIRST LIEN DEED OF TRUST"):
(a) that First Deed of Trust and Security Agreement of even date
with the Loan Agreement, executed by Old Borrower, recorded
in Volume 5091, Page 0751, et seq., of the Official Public
Records of Real Property of Bexar County, Texas [Southwest
Medical, Redondo Place, Med Centre Pointe, Nacon Plaza],
under Film Code No. 000-00-0000 and corrected and refiled
under Film Code No. 000-00-0000 of the Official Public
Records of Real Property of Xxxxxx County, Texas [Spring
Valley, Westminster];
(b) that First Deed of Trust and Security Agreement dated
November 5, 1991, executed by Old Borrower, filed for
recording in the Office of the County Clerk of Xxxxxx County, Texas under
Clerk's File No. 403252 and recorded at
Film Code No. 000-00-0000, et seq., of the Official Public
Records of Real Property of Xxxxxx County, Texas [Richmond
Square];
(c) that First Deed of Trust and Security Agreement dated
February 4, 1992, executed by Old Borrower, filed for
recording in the Office of the County Clerk of Xxxxxx
County, Texas under Clerk's File No. N527998 and recorded at
Film Code No. 000-00-0000, et seq., of the Official Public
Records of Real Property of Xxxxxx County, Texas
[Westchase];
(d) that First Deed of Trust and Security Agreement dated
September 7, 1993, executed by Old Borrower, recorded at
Volume 5792, Page 1933, et seq., of the Official Public
Records of Real Property of Bexar County, Texas [Pipers
Creek, Shadow Valley], filed for recording in the Office of
the County Clerk of Xxxxxx County, Texas under Clerk's File
No. P442690 and recorded at Film Code No. 000-00-0000, et
seq., of the Official Public Records of Real Property of
Xxxxxx County, Texas [Colonies], and recorded at Volume
11231, Page 0137, et seq., of the Deed of Trust Records of
Tarrant County, Texas [Bentley Village]; and
(e) that First Deed of Trust and Security Agreement dated
March 7, 1995, executed by New Borrower, filed for recording
in the Office of the County Clerk of Xxxxxx County, Texas
under Clerk's File No. R303497 and recorded at Film Code No.
###-##-####, et seq., of the Official Public Records of Real
Property of Xxxxxx County, Texas [Park North Tech];
each such instrument encumbering the real and other property
described therein (the "REAL PROPERTY"); and
(2) the following instruments styled Assignment of Rents and Leases
(collectively called the "RENTAL ASSIGNMENT"):
(a) that Assignment of Rents and Leases dated of even date
with the Loan Agreement, executed by Old Borrower and
recorded in Volume 5091, Page 0826, et seq., of the
Official Public Records of Real Property of Bexar
County, Texas [Southwest Medical, Redondo Place, Med
Centre Pointe, Nacon Plaza], under Film Code No.
###-##-#### of the Official Public Records of Real
Property of Xxxxxx County, Texas [Spring Valley,
Westminster];
(b) that Assignment of Rents and Leases dated November 5, 1991,
executed by Old Borrower, filed for recording in the Office
of the County Clerk of Xxxxxx County, Texas under Clerk's
File No. N403253 and recorded at Film Code No. 000-00-0000,
et seq., of the Official Public Records of Real Property of
Xxxxxx County, Texas [Richmond Square];
(c) that Assignment of Rents and Leases dated February 4, 1992,
executed by Old Borrower, filed for recording in the Office
of the County Clerk of Xxxxxx County, Texas under Clerk's
File No. N527999 and recorded at Film Code No. 000-00-0000,
et seq., of the Official Public Records of Real Property of
Xxxxxx County, Texas [Westchase];
(d) that Assignment of Rents and Leases dated September 7, 1993,
executed by Old Borrower, recorded at Volume 5792, Page
1961, et seq., of the Official Public Records of Real
Property of Bexar County, Texas [Pipers Creek, Shadow
Valley], filed for recording in the Office of the County
Clerk of Xxxxxx County, Texas under Clerk's File No.
P442691, and recorded at Film Code No. 000-00-0000, et seq.,
of the Official Public Records of Real Property of Xxxxxx
County, Texas [Colonies], and recorded at Volume 11231, Page
0179, et seq., of the Deed Records of Tarrant County, Texas
[Bentley Village]; and
(e) that Assignment of Rents and Leases dated March 7, 1995,
executed by New Borrower, filed for recording in the Office
of the County Clerk of Xxxxxx County, Texas under Clerk's
File No. R303498 and recorded at Film Code No. 000-00-0000,
et seq., of the Official Public Records of Real Property of
Xxxxxx County, Texas [Park North Tech]
(3) that Second Deed of Trust and Security Agreement dated December
30, 1992, executed by Old Borrower and recorded in Volume 5581,
Page 1347, et seq., of the Real Property Records of Bexar County,
Texas [Southwest Medical, Redondo Place, Med Centre Pointe,
Nacon Plaza], at Clerk's File No. P101069 and Film Code No.
###-##-####, et seq., of the Real Property Records of Xxxxxx
County, Texas [Spring Valley, Westminster, Richmond Square,
Westchase] (the "SECOND DEED OF TRUST"; the First Deed of Trust
and the Second Deed of Trust being herein collectively called the
"DEED OF TRUST"); and
(4) that Security Agreement and Pledge of Mortgage Loans and Mortgage
Loan Documents (the "MORTGAGE PLEDGE AGREEMENT") of even date
with the Loan Agreement executed by Old Borrower and Lender and
pledging to Lender, as security for the Loan, certain mortgage
loans (the "MORTGAGE LOANS") [Balcones, Enfield Courts];
(the Loan Agreement, the Notes, the Deed of Trust, the Rental Assignment,
the Mortgage Pledge Agreement, the First Modification, the Increase
Modification, and all other Security Instruments (as such term is defined
in the Loan Agreement) or other documents evidencing, governing,
guaranteeing, securing, or otherwise pertaining to the Loan being
hereinafter collectively referred to as the "SECURITY INSTRUMENTS");
D. Lender, Old Borrower, New Borrower, Maxxam Inc. and Maxxam Group
Inc. entered into that Consent and Assumption Agreement dated December 10,
1993, under which Lender consented to the transfer and conveyance of the
Real Property, the Mortgage Loans, and the rights of Old Borrower under the
Loan Agreement to New Borrower (and pursuant to) which Old Borrower has
transferred and conveyed the Real Property, the Mortgage Loans, and the
rights of Old Borrower under the Loan Agreement to New Borrower), and New
Borrower has assumed the obligations and liabilities of Old Borrower under
the Loan and the Security Instruments;
E. Section 2.1 of the Loan Agreement provides that to the extent of
certain principal reductions the Loan shall be a revolving line of credit
and that subject to the terms of the Loan Agreement portions of the
principal sum of the Original Note may be advanced, repaid, and readvanced;
F. After application of proceeds from the sale of Assets and the
payment and satisfaction of Mortgage Loans, the principal balance of the
Loan is $8,000,000 as of the date hereof;
G. Under the Fifth Amendment, Lender and Borrower extended to
December 31, 1994 the period during which the amount available to be
advanced under the Loan for general business purposes (the "GENERAL FUNDING
AVAILABILITY AMOUNT") may be readvanced under the Loan Agreement;
H. Under the Sixth Amendment, Lender and Borrower further extended
to March 31, 1995 the period during which the General Funding Availability
Amount may be readvanced under the Loan Agreement;
I. Under the Seventh Amendment, Lender and Borrower further extended
to September 30, 1995 the period during which the General Funding
Availability Amount may be readvanced under the Loan Agreement and such
date was extended to October 21, 1995 by letter agreement dated October 2,
1995 between Lender and Borrower; and
J. Borrower has requested that Lender further extend the period
during which the General Funding Availability Amount may be readvanced
under the Loan Agreement and Lender is agreeable to further extending such
period on the terms of this Agreement;
AGREEMENT:
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, including the payment by
Borrower to Lender of the Funding Extension Fee (as hereinafter defined),
the receipt and sufficiency of which are hereby acknowledged, Lender and
Borrower agree as follows:
1. ADDITIONAL RE-ADVANCES. Provided Borrower is not then in default
under the Loan Documents, Lender will make available to Borrower, as
Subsequent Advances to be re-advanced under the Loan, up to $17,317,050.08
of principal reductions of the Original Note.
(a) $16,234,281.46 of which shall be available for general
business purposes, which amount Borrower agrees to borrow
and, subject to the applicable conditions to Subsequent
Advances, Lender shall fund on or before March 31, 1996, and
(b) $1,082,768.62 of which shall be available for Subsequent
Advances for payment of Taxes.
Borrower shall initiate requests for such Subsequent Advances in accordance
with the application procedure set forth in Section 2.4 of the Loan
Agreement and funding for such Subsequent Advances shall originate from
re-advances of principal reductions of the Original Note. Borrower and
Lender acknowledge and agree that the principal balance of the Loan is
$8,000,000. In accordance with the foregoing, Section 2.1 of the Loan
Agreement is amended and restated as follows:
2.1 Commitment of Lender; Revolving Line of Credit.
Subject to the provisions of this Agreement, and provided that an
Event of Default does not then exist, Lender will make Advances
to Borrower subject to the conditions of this Agreement. As the
first Advance hereunder, Lender shall disburse $109,864,700.
Thereafter, Lender shall make Advances for, among other purposes,
the Renovation of the Real Property and Leasing Costs, in
accordance with Approved Budget in the amount of up to the sum of
all principal reductions which actually have been paid to Lender;
provided, however, (a) that the sum of all Subsequent Advances
from and after October 21, 1995 shall not exceed $16,234,281.46
(exclusive of Subsequent Advances for Taxes under Section 2.21 of
this Agreement), (b) that said $16,234,281.46 shall only be
available to be advanced prior to March 31, 1996, but may be advanced for
Borrower's general business purposes and shall not
be subject to the requirements of Section 1.64 of this Agreement
regarding the purpose of Subsequent Advances, Section 2.2(c) and
Subsections 2.2(d)(ii) and 2.2(d)(iii) of this Agreement in
connection with renovation of the Real Property, Section 2.4,
Section 2.5, and Section 2.10 of this Agreement relating to
Renovation Requirements and Leasing Costs, or the use
requirements of Section 2.6 of this Agreement, and (ii)
Subsequent Advances from and after October 21, 1995, other than
the General Funding Availability Amount, shall not be available.
To the extent reductions of principal are made available for
Subsequent Advances under this Agreement, the Loan shall be a
"revolving line of credit"; that is, subject to the terms hereof,
portions of the principal sum of the Note may be advanced,
repaid, and readvanced. The books and records of Lender shall be
prima facie evidence of all sums due Lender under the Note and
the other Security Instruments. Notwithstanding the foregoing,
Borrower shall continue to be entitled to Subsequent Advances for
Taxes in the amount of aggregate monthly principal reductions and
in accordance with Section 2.21 of this Agreement.
2. SECURITY INSTRUMENTS. Section 1.63 of the Loan Agreement is
hereby modified to include in the definitions of Security Instruments under
the Loan Agreement, this Amendment.
3. FUNDING EXTENSION FEE. In consideration for Lender's extension
of the period during which the General Funding Availability Amount may be
readvanced under the Loan Agreement, and as a condition precedent to the
effectiveness of this Amendment, Borrower shall pay to Lender a funding
extension fee of $100,000 (the "FUNDING EXTENSION FEE").
4. COSTS AND EXPENSES. Borrower agrees to pay all costs incurred in
connection with the execution and consummation of this Amendment, including
but not limited to, all recording costs, the premium for such endorsements
to the policies of title insurance insuring the First Lien Deed of Trust
and the Second Lien Deed of Trust as may be required by Lender with respect
to this Amendment and the reasonable fees and actual expenses of Lender's
counsel. Borrower further covenants to deliver or cause to be delivered
such evidence of existence, capacity, authorization, qualification, or
enforceability of its obligations as Lender may require in connection with
this Amendment.
5. LIMITATION ON INTEREST. All agreements between Borrower and
Lender, whether now existing or hereafter arising and whether written or
oral, are hereby expressly limited so that in no contingency, whether by
reason of acceleration of the maturity of the Notes or otherwise, shall the
interest contracted for, charged, received, paid or agreed to be paid to
the holder of the Notes exceed the maximum amount permissible under
applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to the holder of the Notes in an amount in excess of
the maximum lawful amount, the interest payable to the holder of the Notes
shall be reduced to the maximum amount permitted by applicable law; and if
from any circumstance the holder of the Notes shall ever receive anything
of value deemed interest by applicable law in excess of the maximum amount
allowed by law, an amount equal to any excessive interest shall be applied
to the reduction of the principal amount owing under the Notes, and not to
the payment of interest, or if such excessive interest exceeds such unpaid
balance of principal of the Notes, such excess shall be refunded to
Borrower. All interest paid or agreed to be paid to the holder of the
Notes, shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of the Notes
(including the period of any renewal or extension thereof) so that the
interest on the Notes shall not exceed the maximum amount permitted by
applicable law. This Section shall control all agreements between Borrower
and the holder of the Notes.
6. FULL FORCE AND EFFECT. As previously modified in the First
Modification, the Increase Modification, the Fourth Amendment, the Fifth
Amendment, the Sixth Amendment, and the Seventh Amendment and as further
modified by this Amendment, the Loan Agreement remains in full force and
effect.
EXECUTED as of the date and year first above written.
BORROWER:
OLD BORROWER: MXM MORTGAGE CORP., a Delaware
corporation
By: XXXX XXXXXXXX, XX.
Xxxx Xxxxxxxx, Xx., Vice President
NEW BORROWER: MXM MORTGAGE, L.P., a Delaware limited
partnership
By: MXM GENERAL PARTNER, INC., a
Delaware corporation, General Partner
By: XXXX XXXXXXXX, XX.
Xxxx Xxxxxxxx, Xx., Vice President
LENDER: GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation
By: XXXXX X. XXXX
Xxxxx X. Xxxx, Investment Manager
