CONSENT AND ASSUMPTION AGREEMENT
THIS CONSENT AND ASSUMPTION AGREEMENT is entered into as of
December 10, 1993 by and among GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation ("Lender"), MXM MORTGAGE CORP., a Delaware
corporation ("Old Borrower"), MXM MORTGAGE L.P., a Delaware limited
partnership ("New Borrower"), MAXXAM INC., a Delaware corporation, and
MAXXAM GROUP INC., a Delaware corporation (MAXXAM Inc. and MAXXAM
Group Inc. being herein together called "Guarantors"), on the
following terms and conditions:
R E C I T A L S:
A. Lender made a loan to Old Borrower in the principal amount
of up to $132,670,000 (the "Loan"), governed by that Loan Agreement
dated June 17, 1991 as amended by that Loan Increase, Extension and
Modification Agreement (the "Increase Modification") dated
December 30, 1992 between Lender and Old Borrower (as amended, the
"Loan Agreement") between Old Borrower and Lender, and evidenced by
that Promissory Note, dated June 17, 1992, in the stated principal
amount of $115,200,000, executed by Old Borrower, bearing interest and
being payable to the order of Lender as therein provided (the "Note"),
as amended by that First Renewal, Extension and Modification Agreement
(the "First Extension") dated as of June 17, 1992, between Lender and
Old Borrower, and further amended by the Increase Modification; and
further evidenced by that Increase Promissory Note dated December 30,
1992, in the stated principal amount of $17,470,000, executed by Old
Borrower and payable to the order of Lender as therein provided (the
"Increase Note"; the Original Note and the Increase Note being herein
together called the "Note");
B. The indebtedness evidenced by the 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 Deed of Trust"):
(a) that First Deed of Trust and Security Agreement of even
date with the Loan Agreement, executed by Borrower, recorded in Volume
5091, Page 0751, et seq., of the Official Public Records of Real
Property of Bexar County, Texas, in Volume 91120, Page 2603, et seq.,
of the Deed of Trust Records of Dallas County, Texas, in Volume 3002,
Page 1, et seq., of the Deed of Trust Records of Denton County, Texas,
in Volume 2262, Page 494, et seq., of the Deed of Trust Records of
Gregg County, Texas, under
Film Code No. 037-12-1689 and corrected and refiled under Film Code
No. ###-##-#### of the Official Public Records of Real Property of
Harris County, Texas, in Volume 878, Page 805, et seq., of the
Official Public Records of Hays County, Texas, in Volume 727, Page
416, et seq., of the Deed of Trust Records of Midland County, Texas,
in Volume 10293, Page 1892, et seq., of the Deed of Trust Records of
Tarrant County, Texas, in Volume 11462, Page 0662, et seq., of the
Real Property Records of Travis County, Texas, and in Volume 2026,
Page 871, et seq., of the Official Records of Williamson County,
Texas,
(b) that First Deed of Trust and Security Agreement dated
October 18, 1991, executed by Borrower and recorded at Volume 5191,
Page 1394, et seq., of the Official Public Records of Real Property of
Bexar County, Texas;
(c) that First Deed of Trust and Security Agreement dated
November 5, 1991, executed by Borrower, filed for recording in the
Office of the County Clerk of Harris County, Texas under Clerk's File
No. N403252 and recorded at Film Code No. 006-52-1287, et seq., of the
Official Public Records of Real Property of Harris County, Texas;
(d) that First Deed of Trust and Security Agreement dated
February 4, 1992, executed by Borrower, filed for recording in the
Office of the County Clerk of Harris County, Texas under Clerk's File
No. N527998 and recorded at Film Code No. 014-55-1789, et seq., of the
Official Public Records of Real Property of Harris County, Texas;
(e) that First Deed of Trust and Security Agreement dated
June 2, 1992, executed by Borrower and recorded at Volume 10683, Page
2382, et seq., of the Deed of Trust Records of Tarrant County, Texas;
(f) that First Deed of Trust and Security Agreement dated
August 4, 1992, executed by Borrower, filed for recording in the
Office of the County Clerk of Harris County, Texas under Clerk's File
No. N803821 and recorded at Film Code No. 106-59-2987, et seq., of the
Official Public Records of Real Property of Harris County, Texas; and
(g) 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, filed for recording in the Office of the County
Clerk of Harris County, Texas under Clerk's File No. P442690 and
recorded at Film Code No. 169-55-3591, et seq., of the Official Public
Records of Real Property of Harris County, Texas, and recorded at
Volume 11231, Page 0137, et seq., of the Deed of Trust Records of
Tarrant County, Texas;
each such instrument encumbering the real and other property
described therein (the "Real Property"); and
(2) 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, in Volume 3455, Page 0496, et seq., of the Real
Property Records of Denton County, Texas, in Volume 2475, Page 1, et
seq., of the Real Property Records of Gregg County, Texas, at Clerk's
File No. P101069 and Film Code No. 120-51-2685, et seq., of the Real
Property Records of Harris County, Texas, in Volume 976, Page 272, et
seq., of the Real Property Records of Hays County, Texas, in Volume
778, Page 175, et seq., of the Deed of Trust Records of Midland
County, Texas, in Volume 10957, Page 2238, et seq., of the Real
Property Records of Tarrant County, Texas, and in Volume 2261, Page
292, et seq., of the Real Property Records of Williamson County, Texas
(the "Second Deed of Trust"; the First Deed of Trust and the Second
Deed of Trust being herein collectively called the "Deed of Trust")
(3) 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 Borrower and recorded in Volume
5091, Page 0826, et seq., of the Official Public Records of Real
Property of Bexar County, Texas, in Volume 91120, Page 2678, et seq.,
of the Deed of Trust Records of Dallas County, Texas, in Volume 3002,
Page 0076, et seq., of the Deed of Trust Records of Denton County,
Texas, in Volume 2262, Page 568, et seq., of the Deed of Trust Records
of Gregg County, Texas, under Film Code No. 037-12-1763 of the
Official
Public Records of Real Property of Harris County, Texas, in Volume
879, Page 1, et seq., of the Official Public Records of Hays County,
Texas, in Volume 1085, Page 176, et seq., of the Deed Records of
Midland County, Texas, in Volume 10293, Page 1967, et seq., of the
Deed of Trust Records of Tarrant County, Texas, in Volume 11462, Page
0736, et seq., of the Real Property Records of Travis County, Texas,
and in Volume 2026, Page 943, et seq., of the Official Records of
Williamson County, Texas;
(b) that Assignment of Rents and Leases dated October 18,
1991, executed by Borrower and recorded at Volume 5191, Page 1421, et
seq., of the Official Public Records of Real Property of Bexar County,
Texas;
(c) that Assignment of Rents and Leases dated November 5,
1991, executed by Borrower, filed for recording in the Office of the
County Clerk of Harris County, Texas under Clerk's File No. N403253
and recorded at Film Code No. 006-52-1312, et seq., of the Official
Public Records of Real Property of Harris County, Texas;
(d) that Assignment of Rents and Leases dated February 4,
1992, executed by Borrower, filed for recording in the Office of the
County Clerk of Harris County, Texas under Clerk's File No. N527999
and recorded at Film Code No. 014-55-1816, et seq., of the Official
Public Records of Real Property of Harris County, Texas;
(e) that Assignment of Rents and Leases dated June 2, 1992,
executed by Borrower and recorded at Volume 10684, Page 0004, et
seq., of the Deed Records of Tarrant County, Texas;
(f) that Assignment of Rents and Leases dated August 4,
1992, executed by Borrower, filed for recording in the Office of the
County Clerk of Harris County, Texas under Clerk's File No. N803822
and recorded at Film Code No. 106-59-3015, et seq., of the Official
Public Records of Real Property of Harris County, Texas; and
(g) 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,
filed for recording in the Office of the County Clerk of Harris
County, Texas under Clerk's File No. P442691, and recorded at Film
Code No. ###-##-####, et seq., of the Official Public Records of Real
Property of Harris County, Texas, and recorded at Volume 11231, Page
0179, et seq., of the Deed Records of Tarrant County, Texas;
(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 Borrower and Lender and pledging
to Lender, as security for the Loan, certain mortgage loans (the
"Mortgage Loans"), as amended by the First Extension and the Increase
Modification; and
(5) that Unconditional Guarantee of Payment and Performance (the
"Guaranty") dated June 17, 1991, executed by Guarantors, guaranteeing
the payment and performance of the indebtedness and obligations of
Borrower under the Loan;
C. The Loan Agreement, the Notes, the Deed of Trust, the Rental
Assignment, the Mortgage Pledge Agreement, the Guaranty, and all other
documents evidencing, governing, guaranteeing, securing, or otherwise
pertaining to the Loan (collectively, the "Loan Documents") have been
modified and amended under the First Extension which is recorded in
Volume 5465, Page 0671, et seq., of the Real Property Records of Bexar
County, Texas, in Volume 92197, Page 6394, et seq., of the Real
Property Records of Dallas County, Texas, in Volume 3346, Page 0215,
et seq., of the Real Property Records of Denton County, Texas, in
Volume 2426, Page 340, of the Real Property Records of Gregg County,
Texas, in Film Code No. 111-43-2705, et seq., of the Real Property
Records of Harris County, Texas, in Volume 952, Page 336, et seq., of
the Real Property Records of Hays County, Texas, in Volume 767, Page
1, et seq., of the Real Property Records of Midland County, Texas, in
Volume 10803, Page 0100, et seq., of the Real Property Records of
Tarrant County, Texas, in Volume 11787, Page 1482, et seq., of the
Real Property Records of Travis County, Texas, and in Volume 2201,
Page 085, et seq., of the Real Property Records of Williamson County,
Texas, and under the Increase Modification which is recorded at Volume
5581, Page 1386, et seq., of the Real Property Records of Bexar
County, Texas, in Volume 3455, Page 0444, et seq., of the Real
Property Records of Denton County, Texas, in Volume 2474, Page 598, et
seq., of the Real Property Records of Gregg County, Texas, under
Clerk's File No. P101068, Film Code No. 120-51-2633, et seq., of the
Real Property Records of Harris County, Texas, in Volume 976, Page
221, et seq., of the Real Property Records of Hays County, Texas, in
Volume 778, Page 125, et seq., of the Real Property Records of Midland
County, Texas, in Volume 10957, Page
2186, et seq., of the Real Property Records of Tarrant County, Texas,
and in Volume 2281, Page 241, et seq., of the Real Property Records of
Williamson County, Texas;
D. In connection with the Loan, Old Borrower and Guarantors
executed and delivered to Lender that Hazardous Substances Indemnity
Agreement and that Special Hazardous Substances Indemnity Agreement of
even date with the Loan Agreement (together, the "Enviromental
Indemnity");
E. Old Borrower has agreed to convey, transfer, and assign the
Real Property, the Mortgage Loans, and its interest in the Loan
Agreement and the other Loan Documents to New Borrower and New
Borrower has agreed to accept such conveyance, transfer, and
assignment subject to the consent of Lender, which consent is required
in order that the conveyance, transfer and assignment of the Real
Property, the Mortgage Loans, and the interest of Old Borrower in the
Loan Agreement and the other Loan Documents to New Borrower will not
be an Event of Default under Section 2.01(h) of the Deed of Trust or
Section 10.5 of the Mortgage Pledge Agreement, or a violation of
Section 4.19 of the Loan Agreement, or a default or breach of any
other provision of any of the Loan Documents;
F. Old Borrower and New Borrower have requested that Lender
consent to the conveyance, assignment and transfer of the Property and
the interest of Old Borrower in the Loan Agreement and the other Loan
Documents to Old Borrower and the assumption by New Borrower of all of
Old Borrower's obligations to Lender under the Loan Documents, and
Lender has agreed to issue its consent subject to the terms and
conditions set forth below:
CONSENT AND ASSUMPTION:
NOW, THEREFORE, for the premises considered, and for other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lender, Old Borrower, New Borrower, and
Guarantors agree as follows:
1. New Borrower hereby assumes and agrees to pay and perform
all the obligations of Old Borrower under and pursuant to the Loan
Agreement, the Note, the Deed of Trust, the Mortgage Pledge Agreement,
the Assignment, and all other Loan Documents, and New Borrower and
Lender agree that all references in the Loan Agreement, the Note, or
the Environmental Indemnity to "Borrower," all references in the Deed
of Trust to "Grantor," all references in the Assignment to "Assignor,"
all references in the Mortgage Pledge Agreement to "Debtor," and all
other references in the Loan Documents to Old Borrower shall hereafter
refer and relate to New Borrower.
2. New Borrower agrees to execute such Uniform Commercial Code
financing statements, change forms and continuation statements and
other documents as Lender, in its sole discretion, deems necessary to
maintain and continue the perfection and priority of the liens and
security interests under the Loan Documents.
3. Lender hereby consents to the conveyance, transfers and
assignments of the Real Property, the Mortgage Loans, and the
interests of Old Borrower in the Loan Agreement to New Borrower, and
Lender acknowledges and confirms that such conveyance, transfer and
assignment shall not constitute an Event of Default under the Loan
Agreement, the Deed of Trust, the Mortgage Pledge Agreement, or any of
the other Loan Documents.
4. Old Borrower and New Borrower agree to pay all costs
incurred in the execution and consummation of this Agreement,
including but not limited to, all recording costs, the reasonable fees
and actual expenses of Lender's legal counsel, premiums for
endorsements requested by Lender to the Mortgagee Policy(ies) of Title
Insurance insuring the validity and priority of the Deed of Trust, the
Mortgage Pledge Agreement, and the other Loan Documents, as required
by Lender in connection with this Agreement.
5. Old Borrower joins in this Agreement for the purpose of
consenting hereto and agreeing to be bound hereby, and, in particular,
agreeing to the terms of Section 4 of this agreement.
6. Guarantors join in the execution of this Agreement for
purposes of consenting hereto, agreeing to be bound hereby and
confirming that the Guaranty and the Environmental Indemnity remain in
full force and effect notwithstanding the transfer of the Real
Property and the Mortgage Loans to New Borrower and notwithstanding
this Agreement, and further agreeing that the Guaranty does and shall
guarantee the obligations of New Borrower under the Loan Documents in
accordance with its terms.
7. As modified by the First Extension and the Increase
Modification, and as modified hereby, all of the terms and conditions
of the Loan Agreement, the Note, the Deed of Trust, the Mortgage
Pledge Agreement, the Assignment, the Environmental Indemnity, and all
other Loan Documents shall remain in full force and effect.
EXECUTED as of the date and year first above written.
GECC: GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation
By:
Ty Albright, Project Manager
New Borrower: MXM MORTGAGE L.P.,
a Delaware limited partnership
By: MXM GENERAL PARTNER, INC.,
a Delaware corporation,
General Partner
By:
Erik Eriksson, Jr., Vice President
Old Borrower: MXM MORTGAGE CORP.,
a Delaware corporation
By:
Erik Eriksson, Jr., Vice President
Guarantors: MAXXAM INC.,
a Delaware corporation
By:
Byron L. Wade, Vice President,
Secretary and Deputy General Counsel
MAXXAM GROUP INC.,
a Delaware corporation
By:
Byron L. Wade, Vice President,
Secretary and Deputy General Counsel
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me this _____ day of
December, 1993, by TY ALBRIGHT, Project Manager of GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation, on behalf of said
corporation.
(S E A L)
Notary Public in and for
the State of Texas
Printed/Typed Name of Notary
My Commission Expires:
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me this _____ day of
December, 1993 by ERIK ERIKSSON, JR., Vice President of MXM GENERAL
PARTNER, INC., a Delaware corporation and General Partner of MXM
MORTGAGE L.P., a Delaware limited partnership, on behalf of said
corporation and said limited partnership.
(S E A L)
Notary Public in and for
the State of Texas
Printed/Typed Name of Notary
My Commission Expires:
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me this _____ day of
December, 1993, by ERIK ERIKSSON, JR., Vice President of MXM MORTGAGE
CORP., a Delaware corporation, on behalf of said corporation.
(S E A L)
Notary Public in and for
the State of Texas
Printed/Typed Name of Notary
My Commission Expires:
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me this _____ day of
December, 1993, by BYRON L. WADE, Vice President, Secretary and Deputy
General Counsel of MAXXAM INC., a Delaware corporation, on behalf of
said corporation.
(S E A L)
Notary Public in and for
the State of Texas
Printed/Typed Name of Notary
My Commission Expires:
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me this _____ day of
December, 1993, by BYRON L. WADE, Vice President, Secretary and Deputy
General Counsel of MAXXAM GROUP INC., a Delaware corporation, on
behalf of said corporation.
(S E A L)
Notary Public in and for
the State of Texas
Printed/Typed Name of Notary
My Commission Expires: