TWELFTH RENEWAL AND EXTENSION AGREEMENT
THE STATE OF TEXAS '
'
COUNTY OF MONTGOMERY '
This TWELFTH RENEWAL AND EXTENSION AGREEMENT (the "Twelfth Renewal") is
executed this _____ day of March, 2001 (the "Execution Date"), but effective as
of December 1, 2000, by and between PLAZA CONSTRUCTION, INC. ("Maker"), a Texas
corporation, and WEINGARTEN REALTY INVESTORS ("Payee"), a Texas real estate
investment trust.
W I T N E S S E T H:
----------------------------
WHEREAS, the Payee is the present legal owner and holder of that certain
Promissory Note dated November 29, 1982 (the "Original Note"), in the original
principal sum of Twelve Million and No/100 Dollars ($12,000,000.00) executed by
River Pointe Venture I ("River Pointe"), a Texas joint venture, payable to the
order of Weingarten Realty, Inc. ("WRI"), a Texas corporation, payable as
therein provided, which Note is secured by (i) a Deed of Trust and Security
Agreement dated November 29, 1982 (the "Original Deed of Trust"), executed by
River Pointe to Melvin A. Dow, Trustee, filed under Clerk's File No. 8254156 and
under Film Code Reference No. ###-##-#### in the Real Property Records of
Montgomery County, Texas, covering and affecting certain property situated in
Montgomery County, Texas, more particularly described therein (the "Property"),
and (ii) any and all other liens, security instruments, and documents executed
by River Pointe and/or Maker, securing or governing the payment of the Original
Note including, but not limited to, that certain Loan Agreement dated November
29, 1982 ("Original Loan Agreement"), executed by WRI and River Pointe; and
WHEREAS, by that certain River Pointe Venture I Assignment of Interest and
Dissolution, dated October 16, 1987, filed on October 19, 1987, under Clerk's
File No. 8747284, in the Real Property Records of Montgomery County, Texas,
River Pointe was dissolved and Maker assumed all of the debts and obligations of
River Pointe, and obtained ownership of all of the assets of River Pointe,
including, but not limited to, the Property; and
WHEREAS, on April 5, 1988, WRI assigned and conveyed all of its property,
both real and personal, including, without limitation, the Original Note, to
Payee, as evidenced by that certain Master Deed and General Conveyance, from WRI
to Payee, a counterpart of which was filed under Clerk's File No. 8815730 and
under Film Code Reference No. ###-##-####, in the Real Property Records of
Montgomery County, Texas; and
WHEREAS, by instrument entitled Renewal and Extension Agreement, entered
into as of November 1, 1989 (the "First Renewal"), executed by Maker and Payee,
the Original Note, Original Deed of Trust, Original Loan Agreement, and all
other documents evidencing, governing, or securing the payment of the Original
Note were renewed and extended; and
WHEREAS, by instrument entitled Second Renewal and Extension Agreement
dated March 12, 1991, but effective as of December 1, 1990 (the "Second
Renewal"), filed on March 21, 1991, under Clerk's File No. 9111519 and under
Film Code Reference No. ###-##-#### in the Official Public Records of Real
Property of Montgomery County, Texas, Maker and Payee further modified and
extended the Original Note, Original Deed of Trust, Original Loan Agreement, and
all other documents evidencing, governing or securing payment of the Original
Note; and
WHEREAS, by instrument entitled Third Renewal and Extension Agreement dated
February 28, 1992, but effective as of December 1, 1991 (the "Third Renewal"),
filed on May 14, 1992, under Clerk's File No. 9222962, and under Film Code
Reference No. ###-##-#### in the Official Public Records of Real Property of
Montgomery County, Texas, Maker and Payee further modified and extended the
Original Note, Original Deed of Trust, Original Loan Agreement, and all other
documents evidencing, governing or securing payment of the Original Note; and
WHEREAS, by instrument entitled Fourth Renewal and Extension Agreement
dated February 19, 1993, but effective as of December 1, 1992 (the "Fourth
Renewal"), Maker and Payee further modified and extended the Original Note,
Original Deed of Trust, Original Loan Agreement, and all other documents
evidencing, governing or securing payment of the Original Note; and
WHEREAS, by instrument entitled Fifth Renewal and Extension Agreement dated
March 9, 1994, but effective as of December 1, 1993 (the "Fifth Renewal"), filed
on March 18, 1994 under Clerk's File No. 9415326 and under Film Code Reference
No. ###-##-#### in the Official Public Records of Real Property of Montgomery
County, Texas, Maker and Payee further modified and extended the Original Note,
Original Deed of Trust, Original Loan Agreement, and all other documents
evidencing, governing, or securing payment of the Original Note; and
WHEREAS, by instrument entitled Sixth Renewal and Extension Agreement dated
February 22, 1995, but effective as of December 1, 1994 (the "Sixth Renewal"),
filed on March 1, 1995 under Clerk's File No. 09511049 and under Film Code
Reference No. 046-00-0785 in the Official Public Records of Real Property of
Montgomery County, Texas, Maker and Payee further modified and extended the
Original Note, Original Deed of Trust, Original Loan Agreement, and all other
documents evidencing, governing, or securing payment of the Original Note; and
WHEREAS, by instrument entitled Seventh Renewal and Extension Agreement
dated February 7, 1996, but effective December 1, 1995 (the "Seventh Renewal"),
filed on February 23, 1996 under Clerk's File No. 9611331 and under Film Code
Reference No. 135-00-0887 in the Official Public Records of Real Property of
Montgomery County, Texas, Maker and Payee further modified and extended the
Original Note, Original Deed of Trust, Original Loan Agreement, and all other
documents evidencing, governing, or securing payment of the Original Note; and
WHEREAS, by instrument entitled Eighth Renewal and Extension Agreement dated
February 21, 1997, but effective December 1, 1996 (the "Eighth Renewal@) filed
on Nov. 5, 1997, under Clerk=s File No. 9771746 and under Film Code Reference
No. 316-00-0327, in the Official Public Records of Real Property of Montgomery
County, Texas, Maker and Payee further modified and extended the Original Note,
Original Deed of Trust, Original Loan Agreement, and all other documents
evidencing, governing, or securing payment of the Original Note; and
WHEREAS, by instrument entitled Ninth Renewal and Extension Agreement dated
December 15, 1998, but effective December 1, 1997 (the "Ninth Renewal@) filed on
March 22, 1999, under Clerk=s File No. 99021470 and under Film Code Reference
No. 509-00-0781, in the Official Public Records of Real Property of Montgomery
County, Texas, Maker and Payee further modified and extended the Original Note,
Original Deed of Trust, Original Loan Agreement, and all other documents
evidencing, governing, or securing payment of the Original Note; and
WHEREAS, by instrument entitled Tenth Renewal and Extension Agreement dated
January 7, 1999, but effective December 1, 1998 (the "Tenth Renewal@) filed on
March 22, 1999, under Clerk=s File No. 99021471 and under Film Code Reference
No. 509-00-0786, in the Official Public Records of Real Property of Montgomery
County, Texas, Maker and Payee further modified and extended the Original Note,
Original Deed of Trust, Original Loan Agreement, and all other documents
evidencing, governing, or securing payment of the Original Note; and
WHEREAS, by instrument entitled Eleventh Renewal and Extension Agreement dated
March 1, 2000, but effective as of December 1, 1999 (the "Eleventh Renewal@),
Maker and Payee further modified and extended the Original Note, Original Deed
of Trust, Original Loan Agreement, and all other documents evidencing,
governing, or securing payment of the Original Note; and
WHEREAS, the Original Note, the Original Deed of Trust, and Original Loan
Agreement, together with any and all other liens, security interests and
documents evidencing, securing or governing payment of the Original Note, as
modified by the First Renewal, Second Renewal, Third Renewal, Fourth Renewal,
Fifth Renewal, Sixth Renewal, Seventh Renewal, Eighth Renewal, Ninth Renewal,
Tenth Renewal, and Eleventh Renewal are herein referred to as the "Note" and
"Security Instruments," respectively; and
WHEREAS, Maker and Payee now propose to modify the Note in certain respects
and to continue the lien and priority of the Security Instruments as security
for the payment of the Note, as set forth more particularly herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Maker and Payee hereby agree as
follows:
1. The Maker re-affirms its promise to pay to the order of the Payee,
at 2600 Citadel Plaza Drive, Suite 300, Houston, Harris County, Texas 77008, the
principal balance due and owing on the Note, with accrued interest thereon, as
provided in the Note, except that the maturity date of the Note is hereby
amended and extended until December 1, 2001, at which time the unpaid principal
balance of the Note, together with all accrued but unpaid interest, shall be due
and payable.
All liens securing the Note, including, but not limited to, the lien
created by the Original Deed of Trust, are hereby renewed, extended and carried
forward to secure payment of the Note, as hereby amended, and the Original Deed
of Trust is hereby amended to reflect that the maturity date of the Note is
December 1, 2001. All other Security Instruments including, but not limited to,
the Original Loan Agreement, are likewise hereby modified and amended to reflect
the renewal and extension of the maturity date of the Note to December 1, 2001.
2. Maker hereby represents and warrants to Payee that (a) Maker is the
sole legal and beneficial owner of the Property (b) Maker has the full power and
authority to make the agreements contained in this Twelfth Renewal, without
joinder and consent of any other party; and (c) the execution, delivery and
performance of this Twelfth Renewal will not contravene or constitute an event
which itself or which, with the passing of time, or giving of notice, or both,
would constitute a default under any trust deed, deed of trust, loan agreement,
indenture or other agreement to which Maker is a party or by which Maker or any
of its property is bound. Maker hereby agrees to indemnify and hold harmless
Payee against any loss, claim, damage, liability or expense (including, without
limitation, attorneys' fees) incurred as a result of any representation or
warranty made by Maker in this Section 2 proving to be untrue in any material
respect.
3. To the extent that the Note is inconsistent with the terms of this
Twelfth Renewal, the Note is hereby modified and amended to conform with this
Twelfth Renewal. Except as modified, renewed and extended by this Twelfth
Renewal, the Note and the Security Instruments remain unchanged and continue
unabated and in full force and effect as the valid and binding obligation of the
Maker.
4. In conjunction with the extension, renewal and modification of the
Note and the Security Instruments, Maker hereby extends and renews the liens,
security interests, and assignments created and granted in the Security
Instruments until the indebtedness secured thereby, as so extended, renewed and
modified, has been fully paid, and agrees that such extension, renewal and
modification shall in no manner affect or impair the Note, the liens or security
interests securing same, and that said liens, security interests, and
assignments shall not in any manner be waived. The purpose of this Twelfth
Renewal is simply to extend the time of payment of the loan evidenced by the
Note and any indebtedness secured by the Security Instruments, as modified by
this Twelfth Renewal, and to carry forward all liens and security interests
securing the same, which are acknowledged by Maker to be valid and subsisting.
5. Maker covenants and warrants that the Payee is not in default under
the Note or Security Instruments, each as modified by this Twelfth Renewal
(collectively referred to as the "Loan Instruments"), that there are no
defenses, counterclaims or offsets to such Loan Instruments; and that all of the
provisions of the Loan Instruments, as amended hereby, are in full force and
effect.
6. Maker agrees to pay all costs incurred in connection with the
execution and consummation of this Twelfth Renewal, including but not limited
to, all recording costs, the premium for an endorsement to the Mortgagee Policy
of Title Insurance insuring the validity and priority of the Original Deed of
Trust, in form satisfactory to Payee, and the reasonable fees and expenses of
Payee's counsel.
7. If any covenant, condition, or provision herein contained is held to be
invalid by final judgment of any court of competent jurisdiction, the invalidity
of such covenant, condition, or provision shall not in any way affect any other
covenant, condition, or provision herein contained.
8. Payee is an unincorporated trust organized under the Texas Real
Estate Investment Trust Act. Neither the shareholders of Payee, nor its Trust
Managers, officers, employees, or other agents shall be personally, corporately,
or individually liable, in any manner whatsoever, for any debt, act, omission,
or obligation of Payee, and all persons having claims of any kind whatsoever
against Payee shall look solely to the property of Payee for the enforcement of
their rights (whether monetary or non-monetary) against Payee.
EXECUTED this day and year first above written, but effective for all
purposes as of December 1, 2000.
PLAZA CONSTRUCTION, INC., a Texas corporation
By:
Martin Debrovner, Vice President
"MAKER"
WEINGARTEN REALTY INVESTORS, a Texas real estate investment trust
By:
Stephen C. Richter, Chief Financial Officer
"PAYEE"
STATE OF TEXAS '
'
COUNTY OF HARRIS '
This instrument was acknowledged before me on this ______ day of
____________, 2001, by Martin Debrovner, Vice President of PLAZA CONSTRUCTION,
INC., a Texas corporation, on behalf of said corporation.
Notary Public, State of Texas
STATE OF TEXAS '
'
COUNTY OF HARRIS '
This instrument was acknowledged before me on this ______ day of
______________, 2001, by Stephen C. Richter, Chief Financial Officer of
WEINGARTEN REALTY INVESTORS, a Texas real estate investment trust, on behalf of
said real estate investment trust.
Notary Public, State of Texas