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Exhibit 10.8
SECOND AMENDED PROMISSORY NOTE
$20,000,000.00 Houston, Texas January 1, 1993
FOR VALUE RECEIVED, and as hereinafter specified, WRI HOLDINGS, INC.,
a Texas corporation ("Maker"), promises to pay to the order of WEINGARTEN
REALTY INVESTORS, a Texas real estate investment trust ("Payee"), at 2600
Citadel Plaza Drive, Houston, Texas 77008 (or such other address as may be
designated in writing by Payee), in lawful money of the United States of
America, which shall be legal tender for the payment of all debts, public and
private, (i) the principal sum of TWENTY MILLION and NO/100 DOLLARS
($20,000,000.00), or so much thereof as may, from time to time, be advanced by
Payee pursuant to that certain Deficit Loan Agreement dated December 28, 1984,
between Maker and Weingarten Realty, Inc. ("WRI", predecessor-in-interest of
Payee), as amended by that certain First Amendment of Deficit Loan Agreement
and Modification of Interest Rate dated November 17, 1987, effective as of
September 30, 1987, between Maker and WRI, as further amended by that certain
Second Amendment of Deficit Loan Agreement and Modification of Promissory Note
dated August 1, 1991, effective as of January 1, 1991, between Maker and Payee
(collectively, the "Deficit Loan Agreement"); (ii) interest from the date
hereof until maturity upon the balance of the principal sum remaining unpaid
from time to time (such balance being referred to herein as the "Principal
Balance") (a) to cover the Interest Difference only on the Railwood Bond and
the River Pointe Bond, at the lesser of (A) the total of the prime rate
announced from time to time by Texas Commerce Bank National Association
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plus two percentage points per annum or (B) the highest lawful rate ("Maximum
Rate") permitted by Applicable Law (as hereinafter defined) and (b) to cover
the Interest Difference on the Hospitality Bond, at the Maximum Rate
permitted by Applicable Law; and (iii) interest upon all past-due principal
and accrued interest from maturity until paid at the Maximum Rate permitted
by Applicable Law.
All sums paid or agreed to be paid to Payee for the use, forbearance
or detention of the indebtedness evidenced hereby shall, to the extent
permitted by Applicable Law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full, so that
the maximum lawful rate of interest or the maximum amount of interest that may
be charged, contracted for or received under Applicable Law on account of such
indebtedness does not exceed the Maximum Rate permitted by Applicable Law from
time to time in effect and applicable to the indebtedness evidenced hereby for
so long as such indebtedness is outstanding hereunder.
The term "Applicable Law," shall mean that law in effect from time to
time and applicable to this Note which lawfully permits the charging and
collection of the highest permissible lawful, non-usurious rate of interest on
this Note, including laws of the State of Texas and laws of the United States
of America. It is intended that Tex. Rev. Civ. Star. Ann., Art. 5069-1.04, as
amended, shall be included in the laws of the State of Texas in determining
Applicable Law, and for the purpose of applying said Article 5069-1.04 to this
Note, it is agreed between Maker and Payee that the interest ceiling applicable
to this Note under said Article 5069-1.04 shall be
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the quarterly rate ceiling. In no event shall the provisions of Article 5069
Ch 15 of the Revised Civil Statutes of Texas (which regulates certain revolving
credit loan accounts and revolving tri-party accounts) apply to the loan
evidenced hereby.
The entire unpaid Principal Balance, together with all accrued, unpaid
interest thereon, shall be finally due and payable on the 28th day of December,
2004 if not sooner paid (the "Maturity Date"), and with interest computed from
and after the Maturity Date at the Maximum Rate permitted by Applicable Law,
until all amounts due hereunder are paid in full.
The Maker of this Note shall have the right to prepay all or any
portion of the Principal Balance of this Note at any time without notice or any
prepayment penalty. Any amounts so prepaid shall be applied, first, to accrued
interest and, next, to principal coming due in the inverse order of maturity.
This Note shall be accelerated and become immediately due and payable,
at the option of the Payee or other holder hereof, without presentment, demand,
notice of intent to accelerate, notice of acceleration or any other notice
(other than the notice set forth herein) to the Maker or any other person
obligated or to become obligated hereon upon default continuing for a period of
ten (10) calendar days after receipt of written notice to Maker of a particular
event of default then existing in the payment of any sum due hereon or default
continuing for a period of twenty (20) calendar days after receipt of written
notice to Maker of a particular event of default then existing under the terms
of any of the Security Instruments (hereafter referred to). Any notice provided
for hereunder shall be deemed to be delivered three (3) calendar days after
being deposited in the United States Mail, postage prepaid,
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Certified Mail, return receipt requested, addressed to Maker at Maker's address
given below, or at such other address as such party may have theretofore
delivered in accordance herewith. Notice may also be given by telegram,
messenger service or other personal delivery, and shall be deemed to be
delivered when received.
Notwithstanding anything to the contrary set forth in this Note, Payee
or other holder hereof may, at its option, without presentment or demand or any
further notice (other than as expressly set forth in the following sentence) to
the Maker or any other person obligated hereon, declare this Note, and all sums
due and payable hereunder, immediately due and payable, at any time after the
28th day of December, 1994. Payee or such other holder hereof shall deliver to
Maker or such other person obligated or to become obligated hereon notice of
such election to accelerate the maturity of this Note as provided for in the
immediately preceding sentence, by delivering to such Maker or other person
obligated hereon six (6) months' prior written notice thereof, such notice to
be delivered in accordance with the notice provisions hereinabove provided.
Except as hereinabove expressly set forth, the Maker and all sureties,
guarantors and endorsers of this Note (i) waive demand, notice of intent to
accelerate, notice of acceleration, grace, protest, notice of protest and
presentment, and all other notices (except as otherwise expressly provided for
herein), (ii) agree that the Payee or other holder hereof shall not be required
first to institute suit or exhaust its remedies hereon against the Maker or
others liable to or to become liable hereon in order to enforce payment of this
Note by them, (iii) agree and consent that this Note may be renewed and the
time of payment extended, without notice and without
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releasing any of said parties, (iv) agree that the failure to exercise any
option or election herein upon the occurrence of any event of default shall
not be construed as a waiver of the right to exercise such option or election
at any later date or upon the occurrence of a subsequent event of default,
(v) agree that, without any notice, Payee may from time to time agree to
substitute, exchange or release any part or parts of the property and interests
securing the payment of this Note, with or without consideration, and
(vi) agree that, without any notice, Payee may from time to time agree to any
substitution, exchange or release of any party primarily or secondarily liable
hereon.
If this Note is collected by suit, through probate or bankruptcy court
or any other judicial proceedings, after default by the Maker, or if this Note
is not paid at maturity, howsoever such maturity may be brought about, and is
thereafter placed in the hands of an attorney for collection, then the Maker
promises to pay, as attorney's fees, and in addition to all other amounts owing
hereunder, a reasonable sum not to exceed ten percent (10%) of the unpaid
Principal Balance and accrued but unpaid interest thereon at the time this Note
is placed in the hands of such attorney.
Any action brought on this Note or the agreements or instruments
securing the same, regardless of where brought, shall be determined under the
laws of the State of Texas (and applicable federal law). All obligations
performable with respect to this Note shall be performable in Harris County,
Texas.
Notwithstanding any provision to the apparent contrary herein
contained, it is expressly provided that in no case or event shall the
aggregate of (i) all "interest" on the unpaid Principal Balance, accrued or
paid from the date hereof
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through the date of such calculation, and (ii) the aggregate of any other
amounts accrued or paid pursuant to this Note or any other instrument
evidencing, related to or securing this Note, which under Applicable Law,
is or may be deemed to constitute interest upon the debt evidenced hereby
from the date hereof through the date of such calculation, ever exceed the
Maximum Rate permitted by Applicable Law on the Principal Balance of the debt
evidenced by this Note from time to time remaining unpaid. In this connection
it is expressly stipulated and agreed that it is the intent of the Payee and
the Maker in the execution and delivery of this Note, and all other instruments
evidencing or securing the indebtedness constituting this debt, to contract
in strict compliance with Applicable Law from time to time in effect. In
furtherance thereof, none of the terms of this Note, or any other such
instruments, evidencing, related to or securing this Note, shall ever be
construed to create a contract to pay, as consideration for use, forbearance or
detention of money, interest at a rate in excess of the Maximum Rate permitted
by Applicable Law. The Maker or any guarantors, endorsers or other parties now
or hereafter becoming liable for the payment of this Note or any other
indebtedness incurred incident to this debt shall never be liable for interest
in excess of the Maximum Rate permitted by Applicable Law, and the provisions
of this paragraph shall control over any other provisions of this Note, or any
other instrument evidencing, related to or securing this debt which may be in
apparent conflict herewith.
Specifically and without limiting the generality of the foregoing, it
is expressly provided that if under any circumstances the aggregate amounts
contracted for, charged or received on this Note prior to and incident to the
final maturity
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include amounts which by law are deemed interest and which would exceed the
maximum amount of interest which could lawfully have been collected on this
debt, Maker stipulates that such amounts collected would have been and will be
deemed to have been the results of a mathematical error on the part of both
the Maker and holder of the Note, and that the party receiving such excess
payment if any has been received shall promptly refund the amount of such
excess (to the extent only of the excess of such interest payments above the
maximum amount which could lawfully have been contracted for, charged or
received) upon discovery of such error by the party receiving such payment. It
is hereby expressly stipulated and agreed to be the intent of both Maker and
holder to at all times comply with Applicable Law relating to this Note and the
instruments securing it, now or hereafter in effect, and any subsequent
judicial interpretation thereof to the extent that same are made applicable
thereto.
This Note amends, restates, extends and renews that certain Promissory
Note, dated December 28, 1984, in the principal sum of Seven Million and No/100
Dollars ($7,000,000) ("Original Note") as amended, restated, extended and
renewed by that certain First Amended Promissory Note dated effective as of
January 1, 1991, in the principal sum of Ten Million and No/100 Dollars
($10,000,000.00) (the "First Amended Note") and extends and renews all advances
made pursuant to the Original Note and the First Amended Note. This Note is
secured by all security agreements and lien instruments including those
executed with the Original Note on December 28, 1984, those executed in
connection with the First Amended Note effective as of December 1, 1991, those
executed heretofore and those hereafter
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executed by the Maker in favor of the Payee ("Security Instruments"),
including, but not limited to:
(a) That certain Security Agreement-Pledge, executed by Maker, as
debtor, and payable to the order of Payee, as secured party,
dated December 28, 1984; and
(b) Those certain Negative Pledge Agreements, executed by Maker,
as debtor, Payee, as secured party, Leisure Dynamics, Inc., a
Texas corporation, and Leisure Dynamics-Alabama, Inc., an
Alabama corporation, dated December 28, 1984,
each covering the Collateral (as therein defined).
This Note has been executed pursuant to the terms of the Deficit Loan
Agreement to which reference is hereby made for all pertinent purposes, and is
the "Accrual Note" as such term is defined therein. It is contemplated that
Payee may make advances on this Note pursuant to the Deficit Loan Agreement and
that from time to time Maker may make principal reduction hereon so that the
unpaid principal amount of this Note may fluctuate throughout its term. All
loans or advances and all payments or principal reductions made hereunder may
be endorsed by the Payee on the schedule attached hereto and made a part hereof
for all purposes. Additional schedule pages may be attached hereto from time to
time by the Payee if more space is necessary. Advances against this Note by the
Payee or other holder hereof, shall be governed by the terms and provisions of
the Deficit Loan Agreement.
Default under the Security (as such term is defined in the Deficit
Loan Agreement) shall constitute default under this Note, whereupon (after the
expiration
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of any notice and/or grace period, if any, provided for in the Deficit Loan
Agreement) the Payee or other holder hereof may, at its option, exercise any
and all rights, powers and remedies afforded hereunder, or under the Security,
or other instrument executed in connection herewith or therewith or related
hereto or thereto, or any other remedy afforded by law, including the right
to declare the unpaid balance of principal and accrued interest on this Note
and the Security at once mature and payable.
EXECUTED this 11th day of March, 1994, but effective for all purposes
as of the 1st day of January, 1993.
WRI HOLDINGS, INC., a Texas corporation
By: MARTIN DEBROVNER
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Name: Martin Debrovner
Title: Vice President
Address: 2600 Citadel Plaza Drive
Houston, TX 77292-4133
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$20,000,000.00 January 1, 1993
WRI HOLDINGS, INC., MAKER
SCHEDULE OF
LOANS AND PAYMENTS OF PRINCIPAL AND INTEREST
Amount of Unpaid
Principal Amount of Principal
Amount Paid or Interest Balance Notation
Date of Loan Prepaid Paid of Loans Made By
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