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FIFTH RENEWAL AND EXTENSION AGREEMENT
THE STATE OF TEXAS
COUNTY OF MONTGOMERY
This FIFTH RENEWAL AND EXTENSION AGREEMENT (the "Fifth Renewal") is
executed this 9th day of March, 1994 (the "Execution Date"), but effective as
of December 1, 1993, by and between PLAZA CONSTRUCTION, INC. ("Maker"), a Texas
corporation, and WEINGARTEN REALTY INVESTORS ("Payee"), a Texas Real Estate
Investment Trust.
WITNESSETH:
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; 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, 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 1, 1989, executed by Maker and
Payee, the Original Note, Original Deed of Trust, 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, 1991, 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, and all other documents evidencing,
governing or securing payment of the Original Note; and
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WHEREAS, by instrument entitled Third Renewal and Extension Agreement
(the "Third Renewal") dated February 28, 1992, but effective as of December 1,
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, 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 19, 1993, but effective as of December 1,
1992, Maker and Payee further modified and extended the Original Note, Original
Deed of Trust, and all other documents evidencing, governing or securing
payment of the Original Note. The Original Note and the Original Deed of Trust,
together with any and all other liens, security interests and documents
securing or governing payment of the Original Note, as modified by .the First
Renewal, Second Renewal, Third Renewal, and Fourth 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 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, and the Note
is hereby amended and extended until December 1, 1994, at which time the unpaid
principal balance of the Note, together with all accrued 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 and extended to
December 1, 1994, and to the extent that the Original Deed of Trust is
inconsistent therewith it is hereby amended.
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 Fifth Renewal without
joinder and consent of any other party; and (c) the execution, delivery and
performance of this Fifth 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
Fifth Renewal, the Note is hereby modified and amended. Except as modified,
renewed and extended by this Fifth Renewal, the Note and the Security
Instruments remain unchanged and continues unabated and in full force and
effect as the valid and binding obligation of the Maker.
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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 Fifth
Renewal being simply to extend the time of payment of the loan evidenced by the
Note and any indebtedness secured by the Fifth 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, Security Instruments, or this Fifth 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 Fifth 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 the day and year first above written, but effective for all
purposes as of December 1, 1993.
WEINGARTEN REALTY INVESTORS, a
Texas Real Estate Investment Trust
By: /s/ BILL ROBERTSON, JR.
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Name: Bill Robertson, Jr.
Title: Executive Vice President
"Payee"
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PLAZA CONSTRUCTION, INC.,
a Texas corporation
By: /s/ MARTIN DEBROVNER
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Name: Martin Debrovner
Title: Vice President
"Maker"
THE STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on this 9th day of March,
1994, by Bill Robertson, Jr, Executive Vice President of WEINGARTEN REALTY
INVESTORS, a Texas Real Estate Investment Trust, on behalf of said Trust.
{Seal} /s/ BARBARA KENNEDY
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Notary Public, State of Texas
THE STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on this 9th day of March,
1994, by Martin Debravner, Vice President of PLAZA CONSTRUCTION, INC., a Texas
corporation, on behalf of said corporation.
{Seal} /s/ BARBARA KENNEDY
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Notary Public, State of Texas
Record and return to:
Scott J. Thomas
Dow, Cogburn & Friedman, P.C.
9 Greenway Plaza
Suite 2300
Houston, Texas 77046
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