EXHIBIT 10.3.1
BONDS SECOND RENEWAL AND EXTENSION AGREEMENT
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This BONDS SECOND RENEWAL AND EXTENSION AGREEMENT (this "Second Renewal")
is executed this _______ day of March, 1996 (the "Execution Date"), but
effective as of December 28, 1995, by and between WRI HOLDINGS, INC. ("Maker"),
a Texas corporation, and XXXXXXXXXX REALTY INVESTORS ("Payee"), a Texas real
estate investment trust.
W I T N E S S E T H:
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WHEREAS, the Payee is the sole legal owner and holder of those certain 16%
Mortgage Bonds Due 1994 (the "Original Bonds") dated December 28, 1984, in the
face principal sum of THREE MILLION ONE HUNDRED FIFTY THOUSAND and NO/100
DOLLARS ($3,150,000.00) executed by Maker payable to the order of Xxxxxxxxxx
Realty, Inc. ("WRI"), a Texas corporation, payable as therein provided, which
Bonds are secured by (i) that certain Trust Indenture (the "Original Trust
Indenture") dated December 28, 1984 executed by Maker and Texas Commerce Bank
National Association (the "Trustee"), a national banking association, (ii) that
certain River Pointe Negative Pledge Agreement (the "Original Negative Pledge")
dated December 28, 1984 executed by Maker, Payee, and Plaza Construction, Inc.
("Plaza"), and (iii) such other documents, instruments, and agreements executed
in connection with, as security for, or as evidence of the obligations evidenced
by the Bonds (collectively, the Original Trust Indenture, the Original Negative
Pledge, and such other documents, instruments, and agreements being called the
"Original Security Instruments"); 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 dated April 5, 1988; and
WHEREAS, effective as of December 28, 1995, Maker and Payee renewed and
extended the maturity date of the Original Bonds to December 28, 1995 pursuant
to the terms of that certain Bonds Renewal and Extension Agreement ("First
Renewal") dated as of December 28, 1994 between Maker and Payee (the Original
Bonds, Original Negative Pledge, and Original Security Instruments, each as
modified, renewed, and extended by the First Renewal, being called the "Bonds,"
the "Negative Pledge," and the "Security Instruments," respectively); and
WHEREAS, Maker and Payee amended and supplemented the terms of the Original
Trust Indenture to reflect the renewal and extension of the Bonds as provided in
the First Renewal, such amendment being evidenced by that certain Supplemental
Trust Indenture dated as of December 28, 1994 between Maker, Trustee, and Payee;
and
WHEREAS, of even date herewith, Maker, the Trustee, and Payee have further
amended and supplemented the terms of the Trust Indenture pursuant to that
certain Second Supplemental Trust Indenture (the Original Trust Indenture, as
amended and supplemented by the
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Supplemental Trust Indenture and the Second Supplemental Trust Indenture, being
called the "Trust Indenture"); and
WHEREAS, the Bonds mature on December 28, 1995, and Maker and Payee now
propose to renew and extend the maturity date of the Bonds and to continue the
liens and priority of the Security Instruments as security for the payment of
the Bonds, as set forth more particularly herein; and
WHEREAS, in consideration for the extension of the maturity of the Bonds,
Maker and Payee also desire to amend the terms of the Bonds to permit Payee to
call the maturity of the Bonds as more particularly set forth 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 Bonds, with interest accrued thereon, as provided in the
Bonds, except that the maturity date of the Bonds is hereby renewed and extended
to December 28, 1996, at which time the unpaid principal balance of the Bonds
plus all accrued and unpaid interest thereon shall be due and payable.
All liens, pledges, and security interests securing the payment of the
Bonds, including, but not limited to, the liens, pledges and security interests
granted in the Trust Indenture and the Negative Pledge, are hereby renewed,
extended and carried forward to secure payment of the Bonds, as hereby amended,
and the Security Instruments are hereby amended to reflect that the maturity
date of the Bonds is December 28, 1996.
2. In consideration for the extension of the maturity of the Bonds as
provided herein, Maker and Payee hereby agree that the Bonds are further
modified and amended to insert the following provision as paragraph 15 of the
Bonds:
"15. Notwithstanding any provision to the contrary in this Security,
the Indenture, or any other documents evidencing, securing, or
relating to the indebtedness evidenced by this Security, and without
regard to the occurrence of any default or breach under the terms of
this Security, the Indenture, or such other documents, Payee, at any
time during the term of this Security, upon thirty (30) days prior
written notice to Maker and the Trustee (as that term is defined in
the Indenture), may declare the entire outstanding principal balance
of this Security together with all accrued and unpaid interest thereon
(whether such interest is evidenced by this Security or another
instrument or promissory note) immediately due and payable without any
penalty or premium. Payee shall send
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its notice of intention to declare such indebtedness due in accordance
with the notice provisions of the Indenture. If this Security is owned
by more than one owner, a majority of the owners of this Security (as
determined by the principal amount owed to such owners) may declare
the indebtedness evidenced by this Security due pursuant to the terms
of this paragraph."
3. Maker hereby represents and warrants to Payee that (a) Maker is the sole
legal and beneficial owner of the Trust Estate (as that term is defined in the
Trust Indenture); (b) Maker has the full power and authority to make the
agreements contained in this Second Renewal without joinder and consent of any
other party; and (c) the execution, delivery and performance of this Second
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 3 proving to be untrue in any material respect.
4. To the extent that the Bonds are inconsistent with the terms of this
Second Renewal, the Bonds are hereby modified and amended. Except as modified,
renewed and extended by this Second Renewal, the Bonds remain unchanged and
continue unabated and in full force and effect as the valid and binding
obligation of the Maker.
5. In conjunction with the extension and renewal of the Bonds and the
Security Instruments, Maker hereby extends and renews the liens, pledges, and
security interests as created and granted in the Security Instruments until the
indebtedness secured thereby, as so extended and renewed, has been fully paid,
and agrees that such extension and renewal shall in no manner affect or impair
the Bonds or the liens, pledges, and security interests securing same, and that
said liens, pledges, and security interests shall not in any manner be waived.
The purpose of this Second Renewal is simply to extend the time of payment of
the obligation evidenced by the Bonds and any indebtedness secured by the
Security Instruments, as modified by this Second Renewal, to add the foregoing
call provision, and to carry forward all liens, pledges, and security interests
securing the same, which are acknowledged by Maker to be valid and subsisting.
6. Maker covenants and warrants that the Payee is not in default under the
Bonds Security Instruments, or this Second 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.
7. Maker agrees to pay all costs incurred in connection with the execution
and consummation of this Second Renewal, including but not limited to, all
recording costs and the reasonable fees and expenses of Payee's counsel.
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8. 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.
9. Payee is the sole owner and holder of the Bonds. Maker and Payee
acknowledge and agree that the outstanding principal balance of the Bonds as of
December 28, 1995 is $3,150,000.00.
10. 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 28, 1995.
WRI HOLDINGS, INC.,
a Texas corporation
By: [SIGNATURE APPEARS HERE]
______________________________
Xxxxxx Xxxxxxxxx
Vice President
"Maker"
XXXXXXXXXX REALTY INVESTORS, a
Texas real estate investment trust
By: [SIGNATURE APPEARS HERE]
______________________________
Xxxx Xxxxxxxxx, Jr.
Executive Vice President
"Payee"
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THE STATE OF TEXAS )
)
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on this 6th day of March, 1996,
by Xxxxxx Xxxxxxxxx, Vice President of WRI HOLDINGS, INC., a Texas corporation,
on behalf of said corporation.
[SIGNATURE APPEARS HERE]
________________________________
Notary Public, State of Texas
[SEAL APPEARS HERE]
THE STATE OF TEXAS )
)
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on this 6th day of March, 1996
by Xxxx Xxxxxxxxx, Jr., Executive Vice President of XXXXXXXXXX REALTY INVESTORS,
a Texas real estate investment trust, on behalf of said real estate investment
trust.
[SIGNATURE APPEARS HERE]
________________________________
Notary Public, State of Texas
[SEAL APPEARS HERE]
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