EXHIBIT 4.4
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (this "AMENDMENT") 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"), 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., and 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 (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, and the Fourth 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. 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.
403252 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 Rids-el, 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, Tex,,is
[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 Villas-e];
(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, San Antonio
Imaging], at Clerk's File No. P101069 and Film Code No. 120-51-2685, 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
Rite], 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 Ban,
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 "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. Through application of proceeds from the sale of Assets and the
payment and satisfaction of Mortgage Loans:
(1) the principal balance of the Loan was reduced to $15,000,000
and through one or more readvances under the Fourth Amendment is
$16,108,023.57 as of March 31, 1994, and
(2) the existing Funding Availability under the Loan, as amended
under the Fourth Amendment, is $25,457,716.41, of which $2,730,080 is
available but not yet approved for Leasing Costs, $250.000 is available
as a holdback for abatement and removal of environmental hazards,
$457,716.41 is available for payment of Taxes, and $22,019,920 of the
$25,000,000 which was made available for readvances under the Fourth
Amendment remains available for readvances for general business purposes
(the "GENERAL FUNDING AVAILABILITY AMOUNT");
G. Borrower has requested that Lender extend the period during
which the General Funding Availability Amount may be readvanced under the
Loan Agreement and Lender is agreeable to extending such period on the
terms of this Agreement and the terms of that Fourth Extension and
Modification Agreement of even date herewith between Lender and Borrower
(the "FOURTH MODIFICATION");
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
$25,457,716.41 of principal reductions of the Original Note.
(a) $22,019,920 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 December 31, 1994,
(b) $2,730,080 of which shall be available for Subsequent Advances
for Leasing Costs,
(c) $250,000 of which shall be available for Subsequent Advances
for abatement and removal of environmental hazards, and
(d) $457,716.41 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 $16,108,023.57 as of March 31, 1994. 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 December 31, 1993 shall not exceed $25,000,000 (exclusive of
Subsequent Advances for Taxes under Section 2.21 of this Agreement), (b)
that of said $25,000,000 which is available for Subsequent Advances after
December 31, 1993, (i) $22,019,920 shall only be available to be advanced
prior to December 31, 1994, 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, (ii) of the remaining $2,980,080,
$2.730,080 shall be available only for Leasing Costs, and $250,000 shall
be available for payment of costs of abating or removing environmental
hazards affecting the Real Property; and (iii) Subsequent Advances from
and after December 31, 1993 shall not under any circumstances be
available, except for Borrower's general business purposes, for paying
costs of renovation of the Real Property. 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. MAXIMUM LOAN AMOUNT. Borrower and Lender agree that from and
after the date hereof the maximum amount which at any time can be
outstanding under the Loan, whether evidenced by the Original Note or the
Increase Note, is $41,565,739.98.
3. 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 and the Fourth Modification.
4. PREPAYMENT CHARGES. Borrower and Lender acknowledge and agree
(a) that in accordance with Section 4 of the First Modification, the
prepayment of the principal of the Loan on December 15, 1993 to a
remaining principal balance of $15,000,000 required a prepayment charge
of $621,016.40 and (b) that Lender agreed to accept only $500,000 of the
prepayment charge at that time, reserving the right to charge the
remaining $121,016.40 of the prepayment charge at any time in the future.
Borrower and Lender further agree that if Borrower requests and satisfies
all conditions precedent for additional Subsequent Advances of
$22,019,920 for general business purposes on or before December 31, 1994,
and $22,019,920 of additional Subsequent Advances for general business
purposes actually are made on or before December 31, 1994, Lender shall
waive its right to receive any further
prepayment charge as a result of the partial prepayment of the principal
balance of the Loan on December 15, 1993 or any subsequent prepayment.
Otherwise, on January 1, 1995, Borrower shall pay to Lender the remaining
$121,016.40 portion of the prepayment charge owing as a result of the
December 15, 1993 partial prepayment and the prepayment charge shall
continue to be applicable to all future prepayments.
5. 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 $220,199.20 (the "FUNDING EXTENSION FEE"); provided,
however, that
(a) if on or before June 30, 1994 Borrower shall have requested
and satisfied all conditions for the Subsequent Advance(s) of the entire
General Funding Availability Amount, and Lender actually shall have made
the Subsequent Advance of the entire General Funding Availability Amount,
then Lender shall refund to Borrower one-half (1/2) of the Funding
Extension Fee ($110,099.60) at the same time the General Funding
Availability Amount is advanced; and
(b) if on June 30, 1994 Borrower shall have requested and
satisfied all conditions for the Subsequent Advance(s) of more than
$11,009,960 of the General Funding Availability and Lender shall have
made such requested Subsequent Advance(s), then Lender shall refund to
Borrower a portion of the Funding Extension Fee equal to one-half percent
(1/2%) of the amount of the total General Funding Availability which has
been advanced and is outstanding on June 30, 1994. (For example, if the
amount of the General Funding Availability which has been advanced and is
outstanding on June 30, 1994 is $13,000,000, then Lender shall refund to
Borrower $65,000.00 of the Funding Extension Fee [$13,000,000 x 0.005 =
$65,000.001.)
6. COSTS AND EXPENSES. Borrower agrees to pay all costs incurred
in connection with the execution and consummation of this Amendment and
the Fourth Modification, 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 Fourth Modification 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 and the Fourth Modification.
7. 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 minimum 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. An 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 thereat) so that the
interest on the Notes shall not exceed the minimum amount permitted by
applicable law. This Section 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