Exhibit 4.3
FOURTH MODIFICATION AGREEMENT
THIS FOURTH MODIFICATION AGREEMENT (this "AGREEMENT") is executed as
of March 31, 1994, by and among GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation ("LENDER"), MXM MORTGAGE, L.P., a Delaware limited
partnership ("NEW BORROWER"), MXM MORTGAGE CORP., a Delaware corporation
("OLD BORROWER"; New Borrower and Old Borrower being herein together
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, Maxxam Inc. and Maxxam Group Inc. (Maxxam Inc. and Maxxam Group
Inc. being herein together called "GUARANTORS"), and as further amended
by Loan Increase, Extension and Modification Agreement dated December 30,
1992 among Lender, Old Borrower and Guarantors (the "INCREASE
MODIFICATION"; the 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 collectively called the "NOTES"), the
Notes bearing interest and being payable to the order of Lender as
therein provided.
B. 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. 037-12-1689 and
corrected and refiled under Film Code No. 038-03-0657 of the Official
Public Records of Real Property of Harris County, Texas [Spring Valley,
Westminster], in Volume 727, Page 416, et seq., of the Deed of Trust
Records of Midland County, Texas [Oak Ridge], and in Volume 10293, Page
1892, et seq., of the Deed of Trust Records of Tarrant County, Texas
[West Lake Gardens];
(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 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
[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 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
[Westchase];
(d) that First Deed of Trust and Security Agreement dated May
5, 1992, executed by Old Borrower and recorded at Volume 5356, Page 1511,
et seq., of the Official Public Records of Real Property of Bexar County,
Texas [San Antonio Imaging]; and
(e) 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 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
[Westbrook, Colonies], and recorded at Volume 11231, Page 0137, et seq.,
of the Deed of Trust Records of Tarrant County, Texas [Bentley Village];
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. 037-12-1762 of the Official
Public Records of Real Property of Harris County, Texas [Spring Valley,
Westminster], in Volume 1085, Page 176, et seq., of the Deed Records of
Midland County, Texas [Oak Ridge], and in Volume 10293, Page 1967, et
seq., of the Deed of Trust Records of Tarrant County, Texas [West Lake
Gardens], Texas;
(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
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 [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 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
[Westchase];
(d) that Assignment of Rents and Leases dated May 5, 1992,
executed by Old Borrower, recorded in Volume 5356, Page 1538, et seq., of
the Official Public Records of Real Property of Bexar County, Texas [San
Antonio Imaging]; and
(e) 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 Harris County, Texas under Clerk's File No. P442691,
and recorded at Film Code No. 169-55-3618, et seq., of the Official
Public Records of Real Property of Harris County, Texas [Westbrook,
Colonies], and recorded at Volume 11231, Page 0179, et seq., of the Deed
Records of Tarrant County, Texas [Bentley Village]
(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 San
Antonio Imaging], at Clerk's File No. P101069 and Film Code No.
###-##-####, et seq., of the Real Property Records of Harris County,
Texas [Spring Valley, Westminster, Richmond Square, Westchase], in Volume
778, Page 175, et seq., of the Deed of Trust Records of Midland County,
Texas [Oak Ridge] and in Volume 10957, Page 2238, et seq., of the Real
Property Records of Tarrant County, Texas [Westlake Gardens] (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, Park North Tech, Parc Bay,
Trestles]
(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 "LOAN DOCUMENTS");
C. Lender, Old Borrower, New Borrower and Guarantors entered into
that Consent and Assumption Agreement dated December 10, 1993, under
which Lender consented to the transfer and conveyance of the Real
Property and the Mortgage Loans 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 Loan Documents;
D. Lender and Borrower entered into that Third Modification
Agreement (the "THIRD MODIFICATION") dated as of December 30, 1993,
modifying the terms of the Notes and the other Loan Documents, and
providing for the availability of $25,000,000 in Subsequent Advances
under the Loan Agreement, through re-advances of principal reductions of
the Original Note; and
E. Borrower has requested that Lender extend until December 31,
1994 the period during which Lender may be obligated to make certain
additional Subsequent Advances under the Loan Agreement, through
re-advances of principal reductions of the Original Note, and Lender is
agreeable to such extension on the terms of that Fifth Amendment to Loan
Agreement of even date herewith between Lender and Borrower (the "FIFTH
AMENDMENT"), and the further extension of the maturity of the Notes and
the other Loan Documents as hereinafter set forth;
AGREEMENT:
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, Lender and Borrower do hereby
agree as follows:
1. MATURITY DATE. Borrower and Lender agree that the Maturity
Date (as defined in the Original Note and last amended in the Increase
Modification) is extended to December 31, 1999, and that the Maturity
Obligations (as defined in the Original Note) shall be fully payable on
that date.
2. PAYMENT TERMS. Borrower and Lender agree that from and after
the date hereof, interest only on the outstanding principal balance of
the Original Note shall be payable monthly on the first day of each month
beginning April 1, 1994 and continuing to and including December 1, 1999,
at the Contract Rate (as such rate was modified and redefined in Section
3 of the First Modification).
3. PREPAYMENT. Borrower and Lender confirm that the prepayment
provisions set forth in the Third Modification continue in full force and
effect.
4. RATIFICATION AND CONFIRMATION OF LOAN DOCUMENTS. Borrower and
Lender agree that the Loan Agreement, the Notes, the Deed of Trust, the
Rental Assignment, the Mortgage Pledge Agreement, and the other Loan
Documents are hereby ratified and confirmed as valid
and continuing obligations of Borrower, and that the Deed of Trust, the
Rental Assignment, and the Mortgage Pledge Agreement shall continue to
secure and/or provide payment for the Notes, as modified by this
Agreement, and Borrower promises to pay to the order of Lender at P. 0.
Box 102771, Atlanta, Georgia 30368-0771, the indebtedness evidenced by
the Notes, as herein modified.
5. NO IMPAIRMENT OF SECURITY. Borrower hereby agrees that the
agreements contained herein shall in no manner affect or impair the
Original Note or the Increase Note, the liens or security interests
securing same, and that said liens and security interests shall not in
any manner be waived, altered or vitiated by such agreements, and
Borrower further agrees that, as expressly modified hereby, all terms and
provisions of the Loan Documents shall be and remain in full force and
effect.
6. NO DEFAULT, DEFENSES, COUNTERCLAIMS, ETC. Borrower hereby
covenants and warrants that none of the Loan Documents are in default;
that there are no defenses, counterclaims or offsets to such Loan
Documents.
7. COSTS AND EXPENSES. Borrower agrees to pay all costs incurred
in connection with the execution and consummation of this Agreement,
including but not limited to, all recording costs, the premium for such
endorsements to the policies of title insurance insuring the Deed of
Trust as may be required by Lender with respect to this Agreement, and
the reasonable fees and actual expenses of Lender's counsel. Borrower
further covenants and agrees to deliver or cause to be delivered such
evidence of existence, capacity, authorization, qualification, or
enforceability of its obligations as Lender may require.
8. 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 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 paragraph shall control all agreements between
Borrower and the holder of the Notes.
EXECUTED by the parties hereto as of the date and year first above
written.
BORROWER:
OLD BORROWER: MXM MORTGAGE CORP.,
a Delaware corporation
By: ERIK ERIKSSON, JR.
Erik Eriksson, Jr., Vice President
NEW BORROWER: MXM MORTGAGE, L.P.,
a Delaware limited partnership
By: MXM GENERAL PARTNER, INC.,
a Delaware corporation,
General Partner
By: ERIK ERIKSSON, JR.
Erik Eriksson, Jr., Vice President
LENDER: GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation
By: TY ALBRIGHT
Ty Albright, Project Manager
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me this 14th day of April,
1994, by ERIK ERIKSSON, JR., Vice President of MXM MORTGAGE CORP., a
Delaware corporation, on behalf of said corporation.
(SEAL) KARIN MARIE BELDING
Notary Public in and for the State
of Texas
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me this 14th of April, 1994,
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.
(SEAL) KARIN MARIE BELDING
Notary Public in and for the State
of Texas
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me this 15th day of April,
1994, by TY ALBRIGHT, Project Manager of GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation, on behalf of said corporation.
(SEAL) JAN HOWARD
Notary Public in and for the State
of Texas