NINTH RENEWAL AND EXTENSION AGREEMENT
-------------------------------------
THE STATE OF TEXAS
COUNTY OF XXXXXXXXXX
This NINTH RENEWAL AND EXTENSION AGREEMENT (the "Ninth Renewal") is
executed this 15th day of December, 1997 (the "Execution Date"), but effective
as of December 1, 1997, by and between PLAZA CONSTRUCTION, INC. ("Maker"), a
Texas corporation, and XXXXXXXXXX REALTY INVESTORS ("Payee") a Texas real
estate investment trust.
WITNESSETH:
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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 Xxxxxxxxxx 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 Xxxxxx X. Xxx, Trustee, filed under Clerk's File No. 8254156
and under Film Code Reference No. 000-00-0000 in the Real Property Records of
Xxxxxxxxxx County, Texas, covering and affecting certain property situated in
Xxxxxxxxxx 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 WRl
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 Xxxxxxxxxx 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 including, without limitation, the Original Note, to Payee, a
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. 000-00-0000, in the Real Property Records of
Xxxxxxxxxx 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, 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, 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 Xxxxxxxxxx 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 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 Xxxxxxxxxx County, Texas, Maker and Payee further modified and extended the
Original Note, Original Deed of Trust Original Loan Agreement and d1 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 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 1,
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 Xxxxxxxxxx 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
(the "Sixth Renewal") dated February 22, 1995, but effective as of December 1,
1994, 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 Xxxxxxxxxx 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
(the "Seventh Renewal") dated February 7, 1996, but effective a of December 1,
1995, 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 Red Property
of Xxxxxxxxxx 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
(the "Eighth Renewal") dated February 21, 1997, but effective as of December
1, 1996, filed on November 5, 1997 under Clerk's File No. 9771746 and under
Film Code Reference No. 316-00-0327 in the Official File Records of Real
property of Xxxxxxxxxx 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, a
modified by the first Renewal, Second Renewal, Third Renewal, Fourth Renewal,
Fifth Renewal, Sixth Renewal, Seventh Renewal, and Eighth Renewal are herein
referred to a 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 a
security for the payment of the Note, a 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 0000 Xxxxxxx xxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, 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, 1998, 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, 1998. 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, 1998.
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 Ninth Renewal
without joinder and consent of any other party; and (c) the execution,
delivery and performance of this Ninth Renewal will not contravene or
constitute a 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
Ninth Renewal, the Note is hereby modified and amended. Except a modified,
renewed and extended by this Ninth Renewal, the Note and the Security
Instruments remain unchanged and continue unabated and in full force and
effect as a 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 mar the hens,
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 Ninth
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 Ninth 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 a modified by this Ninth 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 Ninth 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.
[END OF PAGE 3 - SIGNATURES ON FOLLOWING PAGE]
EXECUTED this day and year first above written, but effective for all
purposes as of
December 1, 1997.
PLAZA CONSTRUCTION, INC.,
a Texas corporation
By:____________________________________
Xxxxxxxx Xxxxxxxxx
President
"Maker"
XXXXXXXXXX REALTY INVESTORS, a Texas
real estate investment trust
By:____________________________________
Xxxx Xxxxxxxxx, Jr.
Executive Vice President
"Payee"
