SIXTH RENEWAL AND EXTENSION AGREEMENT
-------------------------------------
THE STATE OF TEXAS (S)
(S)
COUNTY OF MONTGOMERY (S)
This SIXTH RENEWAL AND EXTENSION AGREEMENT (the "Sixth Renewal") is executed
this 22nd day of February, 1995 (the "Execution Date"), but effective as of
December 1, 1994, 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 (the "Original Note") dated November 29, 1982, 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 (the "Original Deed of Trust") dated November 29, 1982, executed by
River Pointe to Melvin A. Dow, Trustee, filed under Clerk's File No. 8254156 and
under Film Code Reference No. 171-01-0638 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 ("Original Loan
Agreement") dated November 29, 1982 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 l9, 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, WRI assigned and conveyed all of its property, both real and
personal, to Payee, as evidenced by that certain Master Deed and General
Conveyance, by and between WRI and Payee, a counterpart of which was filed
under Clerk's File No. 8815730 and under Film Code Reference No. 520-01-0704, in
the Real Property Records of Montgomery County, Texas; and
WHEREAS, by instrument entitled Renewal and Extension Agreement (the "First
Renewal") entered into as of November l, 1989, 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 Note were renewed and
extended; and
WHEREAS, by instrument entitled Second Renewal and Extension Agreement (the
"Second Renewal") dated March 12, l991, but effective as of December 1, 1990,
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 (the
"Third Renewal") dated February 28, 1992, but effective as of December l, 1991,
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 (the
"Fourth Renewal") dated February l9, 1993, but effective as of December 1, 1992,
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 (the
"Fifth Renewal") dated March 9, 1994, but effective as of December l, 1993,
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. 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, and Fifth 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:
2
l. The Maker reaffirms its promise to pay to the order of the Payee, at 2600
Citadel Plaza Drive, Suite 300, Houston, 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 l, 1995, 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 l,
1995. 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 l, l995.
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 Sixth Renewal without joinder
and consent of any other party; and (c) the execution, delivery and performance
of this Sixth 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 Sixth
Renewal, the Note is hereby modified and amended. Except as modified, renewed
and extended by this Sixth 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 Sixth 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 Sixth 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 Sixth 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.
3
6. Maker agrees to pay all costs incurred in connection with the execution
and consummation of this Sixth 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 nonmonetary) against Payee.
EXECUTED this day and year first above written, but effective for all purposes
as of December 1, 1994.
PLAZA CONSTRUCTION, INC.,
a Texas corporation
By: Martin Debrovner
------------------------------------------
Martin Debrovner
Vice President
"Maker"
WEINGARTEN REALTY INVESTORS, a
Texas real estate investment trust
By: Bill Robertson, Jr.
------------------------------------------
Bill Robertson, Jr.
Executive Vice President
"Payee"
4
THE STATE OF TEXAS (S)
(S)
COUNTY OF HARRIS (S)
This instrument was acknowledged before me on this 22nd day of February, 1995,
by Martin Debrovner, Vice President of PLAZA CONSTRUCTION, INC., a Texas
corporation, on behalf of said corporation.
Barbara Kennedy
---------------------------------------------
Notary Public, State of Texas
THE STATE OF TEXAS (S)
(S)
COUNTY OF HARRIS (S)
This instrument was acknowledged before me on this 22nd day of February, 1995
by Bill Robertson, Jr., Executive Vice President of WEINGARTEN REALTY INVESTORS,
a Texas real estate investment trust, on behalf of said real estate investment
trust.
Barbara Kennedy
---------------------------------------------
Notary Public, State of Texas
Record and return to:
Janet J. Brown
Weingarten Realty Management Company
P. O. Box 924133
Houston, Texas 77292-4133
5