Pursuant to the requirements of Section 13 or 15(d) of the Securities and
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
WEINGARTEN REALTY INVESTORS
By: Stanford Alexander
---------------------------------
Stanford Alexander
Chairman/Chief Executive Officer
Date: March 17, 2000
Pursuant to the requirement of the Securities and Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
By: Stanford Alexander Chairman and Trust Manager March 17, 2000
------------------------
Stanford Alexander (Chief Executive Officer)
By: Andrew M. Alexander President March 17, 2000
------------------------
Andrew M. Alexander and Trust Manager
By: Robert J. Cruikshank Trust Manager March 17, 2000
------------------------
Robert J. Cruikshank
By: Martin Debrovner Vice Chairman March 17, 2000
------------------------
Martin Debrovner and Trust Manager
By: Melvin Dow Trust Manager March 17, 2000
------------------------
Melvin Dow
By: Stephen A. Lasher Trust Manager March 17, 2000
------------------------
Stephen A. Lasher
By: Joseph W. Robertson, Jr. Executive Vice President and March 17, 2000
------------------------
Joseph W. Robertson, Jr. Trust Manager (Chief Financial Officer)
By: Douglas W. Schnitzer Trust Manager March 17, 2000
------------------------
Douglas W. Schnitzer
By: Marc J. Shapiro Trust Manager March 17, 2000
------------------------
Marc J. Shapiro
By: J.T. Trotter Trust Manager March 17, 2000
------------------------
J.T. Trotter
By: Stephen C. Richter Senior Vice President/ March 17, 2000
------------------------
Stephen C. Richter Financial Administration
and Treasurer
(Principal Accounting Officer)
SCHEDULE II
WEINGARTEN REALTY INVESTORS
VALUATION AND QUALIFYING ACCOUNTS
DECEMBER 31, 1999, 1998 AND 1997
(AMOUNTS IN THOUSANDS)
CHARGED
BALANCE AT TO COSTS CHARGED BALANCE
BEGINNING AND TO OTHER DEDUCTIONS AT END OF
DESCRIPTION OF PERIOD EXPENSES ACCOUNTS (A) PERIOD
----------------------------------- ----------- --------- -------- ----------- ----------
1999:
Allowance for Doubtful Accounts. . . $ 888 $ 1,047 $ 1,027 $ 908
1998:
Allowance for Doubtful Accounts. . . $ 1,000 $ 683 $ 795 $ 888
1997:
Allowance for Doubtful Accounts. . . $ 1,236 $ 877 $ 1,113 $ 1,000
Note A - Write-offs of accounts receivable previously reserved.
SCHEDULE III
WEINGARTEN REALTY INVESTORS
REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
(AMOUNTS IN THOUSANDS)
Total Cost
-------------------------------------
Buildings Projects
and Under Total Accumulated Encumbrances
Land Improvements Development Cost Depreciation (A)
-------- ------------- ------------ ---------- ------------- --------------
SHOPPING CENTERS:
Texas . . . . . . . . . . .$167,757 $ 659,682 $ 827,439 $ 230,568 $ 11,709
Other States. . . . . . . . 78,388 316,309 394,697 61,746 23,948
-------- ------------- ------------ ---------- ------------- --------------
Total Shopping Centers. . 246,145 975,991 1,222,136 292,314 35,657
INDUSTRIAL:
Texas . . . . . . . . . . . 28,404 133,564 161,968 20,234 3,974
Other States. . . . . . . . 2,512 10,665 13,177 317
-------- ------------- ------------ ---------- ------------- --------------
Total Industrial. . . . . 30,916 144,229 175,145 20,551 3,974
OFFICE BUILDING:
Texas . . . . . . . . . . . 534 15,650 16,184 10,782
-------- ------------- ------------ ---------- ------------- --------------
MULTI-FAMILY
RESIDENTIAL:
Texas . . . . . . . . . . . 2,276 12,724 15,000 215
-------- ------------- ------------ ---------- ------------- --------------
Total Improved
Properties . . . . . . . 279,871 1,148,594 1,428,465 323,862 39,631
-------- ------------- ------------ ---------- ------------- --------------
LAND UNDER DEVELOPMENT
OR HELD FOR
DEVELOPMENT:
Texas . . . . . . . . . . . $ 29,544 29,544
Other States. . . . . . . . 7,104 7,104
-------- ------------- ------------ ---------- ------------- --------------
Total Land Under
Development or Held
for Development. . . . . 36,648 36,648
-------- ------------- ------------ ---------- ------------- --------------
LEASED PROPERTY
(SHOPPING CENTER)
UNDER CAPITAL LEASE:
Other States. . . . . . . . 41,093 41,093 4,783 5,857
-------- ------------- ------------ ---------- ------------- --------------
CONSTRUCTION IN
PROGRESS:
Texas . . . . . . . . . . . 5,240 5,240
Other States. . . . . . . . 2,693 2,693
-------- ------------- ------------ ---------- ------------- --------------
Total Construction in
Progress . . . . . . . . 7,933 7,933
-------- ------------- ------------ ---------- ------------- --------------
TOTAL OF ALL
PROPERTIES. . . . . . . . . .$279,871 $ 1,189,687 $ 44,581 $1,514,139 $ 328,645 $ 45,488
======== ============= ============ ========== ============= ==============
____________
Note A - Encumbrances do not include $24.9 million outstanding under a $30 million 20-year term loan,
payable to a group of insurance companies secured by a property collateral pool including all
or part of three shopping centers.
SCHEDULE III
(CONTINUED)
The changes in total cost of the properties for the years ended December
31, 1999, 1998 and 1997 were as follows:
WEINGARTEN REALTY INVESTORS
MORTGAGE LOANS ON REAL ESTATE
DECEMBER 31, 1999
(AMOUNTS IN THOUSANDS)
FINAL PERIODIC FACE CARRYING
INTEREST MATURITY PAYMENT AMOUNT OF AMOUNT OF
RATE DATE TERMS MORTGAGES MORTGAGES(A)
-------- -------- --------- --------- ------------
SHOPPING CENTERS:
FIRST MORTGAGES:
Eastex Venture
Beaumont, TX (Note B). . . 8% 10-31-09 $335 $ 2,300 $ 2,288
Annual
P & I
Main/O.S.T., Ltd.
Houston, TX. . . . . . . . 9.3% 02-01-20 $476 4,800 4,524
Annual
P & I
($1,241
balloon)
INDUSTRIAL:
FIRST MORTGAGES:
River Pointe, Conroe,TX
(Note C) . . . . . . . . . Prime 11-30-03 Varying 2,133 1,891
+2%
Little York, Houston, TX
(Note C) . . . . . . . . . Prime 12-31-03 Varying 1,922 1,760
+2%
AN/WRI Partnership, Ltd.
Houston, TX. . . . . . . . Libor 06-05-00 Varying 33,149 33,149
+2%
South Loop Business Park
Houston, TX. . . . . . . . 9.25% 11-01-07 $74 439 410
Annual
P & I
Schedule continued on next page
SCHEDULE IV
(CONTINUED)
WEINGARTEN REALTY INVESTORS
MORTGAGE LOANS ON REAL ESTATE
DECEMBER 31, 1999
(AMOUNTS IN THOUSANDS)
FINAL PERIODIC FACE CARRYING
INTEREST MATURITY PAYMENT AMOUNT OF AMOUNT OF
RATE DATE TERMS MORTGAGES MORTGAGES(A)
-------- -------- --------- --------- ------------
UNIMPROVED LAND:
SECOND MORTGAGE:
River Pointe
Conroe, TX . . . . . . . . Prime 12-01-00 Varying $ 12,000 $ 3,806
+1% ($3,806
balloon)
--------- ------------
TOTAL MORTGAGE LOANS ON
REAL ESTATE (Note D) . . . . $ 56,743 $ 47,828
========= ============
Note A - The aggregate cost at December 31, 1999 for federal income tax purposes
is $47,828.
Note B - The periodic payment terms were 6% interest only through October 31, 1999
and 8% interest and principal commencing November 1, 1999 through the
maturity date.
Note C - Principal payments are due monthly to the extent of cash flow generated
by the underlying property.
Note D - Changes in mortgage loans for the years ended December 31, 1999, 1998
and 1997 are summarized below:
This SIXTH BONDS RENEWAL AND EXTENSION AGREEMENT (this "Sixth Renewal") is
executed this 1st day of March, 2000 (the "Execution Date"), but effective as of
December 28, 1999, by and between WRI HOLDINGS, 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 sole legal owner and holder of those certain 16%
Mortgage Bonds Due 1994, dated December 28, 1984 (the "Original Bonds"), 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 Weingarten
Realty, Inc. ("WRI"), a Texas corporation, payable as therein provided, which
Bonds are secured by
(i) that certain Trust Indenture, dated December 28, 1984 (the "Original
Trust Indenture") executed by Maker and Texas Commerce Bank
National Association, a national banking association (now known
as Chase Bank of Texas, N.A.) ("Trustee");
(ii) that certain River Pointe Negative Pledge Agreement, dated December
28, 1984 (the "Original Negative Pledge") executed by Maker, WRI,
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 Original Bonds (collectively, the Original Trust
Indenture, the Original Negative Pledge, and such other documents,
instruments, and agreements being herein called the "Original
Security Instruments"); and
WHEREAS, WRI assigned and conveyed all of its property, both real and
personal, including, without limitation, the Original Bonds, to Payee, as
evidenced by that certain Master Deed and General Conveyance dated April 5, 1988
from WRI to Payee; and
WHEREAS, effective as of December 28, 1994, 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, dated as of
December 28, 1994 ("First Renewal"); and
WHEREAS, effective as of December 28, 1995, Maker and Payee renewed and
extended the maturity date of the Original Bonds to December 28, 1996 pursuant
to the terms of that certain Bonds Second Renewal and Extension Agreement dated
as of December 28, 1995 ("Second Renewal"); and
WHEREAS, effective as of December 28, 1996, Maker and Payee renewed and
extended the maturity date of the Original Bonds to December 28, 1997 pursuant
to the terms of that certain Third Bonds Renewal and Extension Agreement, dated
as of December 28, 1996 ("Third Renewal"); and
WHEREAS, effective as of December 28, 1997, Maker and Payee renewed and
extended the maturity date of the Original Bonds to December 28, 1998 pursuant
to the terms of that certain Fourth Bonds Renewal and Extension Agreement, dated
as of December 28, 1997 ("Fourth Renewal"); and
WHEREAS, effective as of December 28, 1998, Maker and Payee renewed and
extended the maturity date of the Original Bonds to December 28, 1999 pursuant
to the terms of that certain Fifth Bonds Renewal and Extension Agreement, dated
as of December 28, 1998 ("Fifth Renewal") (the Original Bonds, Original Negative
Pledge, and Original Security Instruments, each as modified, renewed, and
extended by the First Renewal, Second Renewal, Third Renewal, Fourth Renewal,
and Fifth Renewal, being herein 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, Second Renewal, Third Renewal, Fourth Renewal, and Fifth
Renewal, such amendments being evidenced by (i) that certain Supplemental Trust
Indenture dated as of December 28, 1994 among Maker, Trustee, and Payee, (ii)
that certain Second Supplemental Trust Indenture dated as of December 28, 1995,
among Maker, Trustee, and Payee, (iii) that certain Third Supplemental Trust
Indenture dated as of December 28, 1996, among Maker, Trustee, and Payee, (iv)
that certain Fourth Supplemental Trust Indenture dated as of December 28, 1997,
among Maker, Trustee, and Payee, and (v) that certain Fifth Supplemental Trust
Indenture dated as of December 28, 1998, among Maker, Trustee, and Payee; and
WHEREAS, of even date herewith, Maker, Trustee, and Payee have further
amended and supplemented the terms of the Trust Indenture pursuant to that
certain Sixth Supplemental Trust Indenture (the Original Trust Indenture, as
amended and supplemented by the Supplemental Trust Indenture, the Second
Supplemental Trust Indenture, the Third Supplemental Trust Indenture, the Fourth
Supplemental Trust Indenture, the Fifth Supplemental Trust Indenture, and the
Sixth Supplemental Trust Indenture, being called the "Trust Indenture"); and
WHEREAS, the Bonds mature on December 28, 1999, 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.
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, Harris County, Texas 77008, 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, 2000, 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, 2000.
2. 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 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 Bonds are inconsistent with the terms of this
Sixth Renewal, the Bonds are hereby modified and amended to conform with this
Sixth Renewal. Except as modified, renewed and extended by this Sixth Renewal,
the Bonds 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 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 Sixth 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 Sixth Renewal, and to carry forward all liens,
pledges, 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 Bonds or the Security Instruments, or 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.
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 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 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, 1999 is $3,150,000.00.
9. 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 non-monetary) against Payee.
EXECUTED this day and year first above written, but effective for all
purposes as of December 28, 1999.
WRI HOLDINGS, INC., a Texas corporation
By:___________________________________________
Martin Debrovner, Vice President
"Maker"
WEINGARTEN REALTY INVESTORS, a Texas
real estate investment trust
By:__________________________________________
Bill Robertson, Jr., Executive Vice President
"Payee"
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on this ______ day of
______________, 2000, by Martin Debrovner, Vice President of WRI HOLDINGS, INC.,
a Texas corporation, on behalf of said corporation.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on this ______ day of
______________, 2000, 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.
Notary Public, State of Texas
SIXTH SUPPLEMENTAL TRUST INDENTURE
This SIXTH SUPPLEMENTAL TRUST INDENTURE (this "Sixth Supplemental
Indenture") is executed this 1st day of March, 2000 (the "Execution Date"), but
effective as of December 28, 1999, by and between WRI HOLDINGS, INC. (the
"Company"), a Texas corporation, and CHASE BANK OF TEXAS, N.A. (formerly known
as TEXAS COMMERCE BANK NATIONAL ASSOCIATION) (the "Trustee"), a national banking
association.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee executed that certain Trust Indenture
dated December 28, 1984 (the "Original Trust Indenture") to secure the
performance of the Company under the terms of that certain 16% Mortgage Bonds
Due 1994 (the "Original Bonds") executed by the Company payable to the order of
Weingarten Realty, Inc. ("WRI") dated December 28, 1984 in the face principal
amount of THREE MILLION ONE HUNDRED FIFTY THOUSAND and NO/100 DOLLARS
($3,150,000.00), payable as therein provided; and
WHEREAS, WRI assigned and conveyed all of its property, both real and
personal, including, without limitation, the Original Bonds, to Weingarten
Realty Investors ("Weingarten"), a Texas real estate investment trust, as
evidenced by that certain Master Deed and General Conveyance dated April 5,
1988, from WRI to Weingarten; and
WHEREAS, effective as of December 28, 1994, the Company and Weingarten
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
dated as of December 28, 1994 ("First Renewal"); and
WHEREAS, effective as of December 28, 1995, the Company and Weingarten
again renewed and extended the maturity date of the Original Bonds to December
28, 1996 pursuant to the terms of that certain Bonds Second Renewal and
Extension Agreement dated as of December 28, 1995 ("Second Renewal"); and
WHEREAS, effective as of December 28, 1996, the Company and Weingarten
again renewed and extended the maturity date of the Original Bonds to December
28, 1997 pursuant to the terms of that certain Third Bonds Renewal and Extension
Agreement dated as of December 28, 1996 ("Third Renewal"); and
WHEREAS, effective as of December 28, 1997, the Company and Weingarten
again renewed and extended the maturity date of the Original Bonds to December
28, 1998 pursuant to the terms of that certain Fourth Bonds Renewal and
Extension Agreement dated as of December 28, 1997 ("Fourth Renewal");
WHEREAS, effective as of December 28, 1998, the Company and Weingarten
again renewed and extended the maturity date of the Original Bonds to December
28, 1999 pursuant to the terms of that certain Fifth Bonds Renewal and Extension
Agreement dated as of December 28, 1998 ("Fifth Renewal") (the Original Bonds,
as renewed and extended by the First Renewal, Second Renewal, Third Renewal,
Fourth Renewal, and Fifth Renewal being herein called the "Bonds"); and
WHEREAS, the Company and Weingarten 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, Second Renewal, Third Renewal, Fourth Renewal,
and Fifth Renewal, such amendments being evidenced by (i) that certain
Supplemental Trust Indenture dated as of December 28, 1994 among the Company,
the Trustee, and Weingarten, (ii) that certain Second Supplemental Trust
Indenture dated as of December 28, 1995, among the Company, the Trustee, and
Weingarten, (iii) that certain Third Supplemental Trust Indenture dated as of
December 28, 1996 among the Company, the Trustee, and Weingarten, (iv) that
certain Fourth Supplemental Trust Indenture dated as of December 28, 1997, among
the Company, the Trustee, and Weingarten, and (v) that certain Fifth
Supplemental Trust Indenture dated as of December 28, 1998, among the Company,
the Trustee, and Weingarten (the Original Trust Indenture, as amended and
supplemented by the Supplemental Trust Indenture, Second Supplemental Trust
Indenture, Third Supplemental Trust Indenture, Fourth Supplemental Trust
Indenture, and Fifth Supplemental Trust Indenture being herein called the "Trust
Indenture"); and
WHEREAS, the Bonds mature on December 28, 1999, and the Company and
Weingarten have agreed to renew and extend the maturity date of the Bonds and to
continue the liens, pledges, and security interests securing the payment of the
Bonds, as set forth in that certain Sixth Bonds Renewal and Extension Agreement
("Sixth Renewal") dated effective as of December 28, 1999, executed by the
Company and Weingarten, Weingarten being the sole legal owner and holder of the
Bonds; and
WHEREAS, the Company and the Trustee desire to amend and supplement the
Trust Indenture to reflect the renewal and extension of the maturity date of the
Bonds to December 28, 2000.
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 Company and the Trustee hereby
agree as follows:
1. Except as otherwise provided in this Sixth Supplemental Indenture,
all capitalized terms used in this Sixth Supplemental Indenture shall have the
meanings ascribed to those terms in the Trust Indenture.
2. The Company and the Trustee acknowledge that the Company has
re-affirmed its promise to pay to the order of the Payee, at 2600 Citadel Plaza
Drive, Suite 300, Houston, Harris County, Texas 77008, 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 has been renewed and extended to
December 28, 2000, 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 Bonds granted under
the terms of the Trust Indenture, are hereby renewed, extended and carried
forward to secure payment of the Bonds, as hereby amended, and the Trust
Indenture is hereby amended to reflect that the maturity date of the Bonds is
December 28, 2000.
3. The Company hereby represents and warrants to the Trustee that (a)
the Company is the sole legal and beneficial owner of the Trust Estate; (b) the
Company has the full power and authority to make the agreements contained in
this Sixth Supplemental Indenture without joinder and consent of any other
party; and (c) the execution, delivery and performance of this Sixth
Supplemental Indenture 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 the Company is a party or by which the Company or any of its
property is bound. The Company hereby agrees to indemnify and hold harmless the
Trustee against any loss, claim, damage, liability or expense (including,
without limitation, attorneys' fees) incurred as a result of any representation
or warranty made by the Company in this Section 3 proving to be untrue in any
material respect.
4. To the extent that the Trust Indenture is inconsistent with the
terms of this Sixth Supplemental Indenture, the Trust Indenture is hereby
modified and amended to conform with this Sixth Supplemental Indenture. Except
as modified, renewed and supplemented by this Sixth Supplemental Indenture, the
Trust Indenture remains unchanged and continues unabated and in full force and
effect as the valid and binding obligation of the Company.
5. The Company covenants and warrants that the Trustee is not in
default under the Trust Indenture, as supplemented by this Sixth Supplemental
Indenture (collectively referred to as the "Indenture"), that there are no
defenses, counterclaims or offsets to the Bonds or the Indenture, and that all
of the provisions of the Bonds and the Indenture are in full force and effect.
6. The Company agrees to pay all costs incurred in connection with the
execution and consummation of this Sixth Supplemental Indenture, including but
not limited to, all recording costs and the reasonable fees and expenses of
Trustee'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. The Company acknowledges and agrees that the outstanding principal
balance of the Bonds as of December 28, 1999 is $3,150,000.00.
9. Weingarten joins herein to consent to the amendment and supplement
of the terms of the Trust Indenture, as set forth in this Sixth Supplemental
Indenture and to acknowledge and represent that Weingarten is the sole owner and
holder of the Bonds. Weingarten is an unincorporated trust organized under the
Texas Real Estate Investment Trust Act. Neither the shareholders of Weingarten,
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 Weingarten, and all persons having
claims of any kind whatsoever against Weingarten shall look solely to the
property of Weingarten for the enforcement of their rights (whether monetary or
non-monetary) against Weingarten.
EXECUTED this day and year first above written, but effective for all
purposes as of December 28, 1999.
WRI HOLDINGS, INC.
By:__________________________________________
Martin Debrovner, Vice President
"COMPANY"
CHASE BANK OF TEXAS, N.A.
By:__________________________________________
Rhonda L. Parman, Trust Officer
"TRUSTEE"
WEINGARTEN REALTY INVESTORS
By:__________________________________________
Bill Robertson, Jr., Executive Vice President
"WEINGARTEN"
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on this ______ day of
_____________, 2000, by Martin Debrovner, Vice President of WRI HOLDINGS, INC.,
a Texas corporation, on behalf of said corporation.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on this ______ day of
_____________, 2000, by Rhonda L. Parman, Trust Officer of CHASE BANK OF TEXAS,
N.A., a national banking association, on behalf of said national banking
association.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on this ______ day of _________,
2000, 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.
Notary Public, State of Texas
ELEVENTH RENEWAL AND EXTENSION AGREEMENT
THE STATE OF TEXAS
COUNTY OF MONTGOMERY
This ELEVENTH RENEWAL AND EXTENSION AGREEMENT (the "Eleventh Renewal") is
executed this 1st day of March, 2000 (the "Execution Date"), but effective as of
December 1, 1999, 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 dated November 29, 1982 (the "Original Note"), 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 dated November 29, 1982 (the "Original Deed of Trust"), executed by
River Pointe to Melvin A. Dow, Trustee, filed under Clerk's File No. 8254156 and
under Film Code Reference No. 000-00-0000 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 dated November
29, 1982 ("Original Loan Agreement"), 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 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, on April 5, 1988, WRI assigned and conveyed all of its property,
both real and personal, including, without limitation, the Original Note, to
Payee, as evidenced by that certain Master Deed and General Conveyance, from WRI
to 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
Montgomery County, Texas; and
WHEREAS, by instrument entitled Renewal and Extension Agreement, entered
into as of November 1, 1989 (the "First Renewal"), 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 Original
Note were renewed and extended; and
WHEREAS, by instrument entitled Second Renewal and Extension Agreement
dated March 12, 1991, but effective as of December 1, 1990 (the "Second
Renewal"), filed on March 21, 1991, under Clerk's File No. 9111519 and under
Film Code Reference No. 000-00-0000 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 dated
February 28, 1992, but effective as of December 1, 1991 (the "Third Renewal"),
filed on May 14, 1992, under Clerk's File No. 9222962, and under Film Code
Reference No. 000-00-0000 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
dated February 19, 1993, but effective as of December 1, 1992 (the "Fourth
Renewal"), 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 dated
March 9, 1994, but effective as of December 1, 1993 (the "Fifth Renewal"), filed
on March 18, 1994 under Clerk's File No. 9415326 and under Film Code Reference
No. 000-00-0000 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 Sixth Renewal and Extension Agreement dated
February 22, 1995, but effective as of December 1, 1994 (the "Sixth Renewal"),
filed on March 1, 1995 under Clerk's File No. 09511049 and under Film Code
Reference No. 000-00-0000 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 Seventh Renewal and Extension Agreement
dated February 7, 1996, but effective December 1, 1995 (the "Seventh Renewal"),
filed on February 23, 1996 under Clerk's File No. 9611331 and under Film Code
Reference No. 000-00-0000 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 Eighth Renewal and Extension Agreement
dated February 21, 1997, but effective December 1, 1996 (the "Eighth Renewal")
filed on Nov. 5, 1997, under Clerk=s File No. 9771746 and under Film Code
Reference No. 000-00-0000, 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 Ninth Renewal and Extension Agreement dated
December 15, 1998, but effective December 1, 1997 (the "Ninth Renewal") filed on
March 22, 1999, under Clerk=s File No. 99021470 and under Film Code Reference
No. 000-00-0000, 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 Tenth Renewal and Extension Agreement dated
January 7, 1999, but effective December 1, 1998 (the "Tenth Renewal") filed on
March 22, 1999, under Clerk=s File No. 99021471 and under Film Code Reference
No. 000-00-0000, 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, 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,
Fifth Renewal, Sixth Renewal, Seventh Renewal, Eighth Renewal, Ninth Renewal,
and Tenth 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 re-affirms its promise to pay to the order of the Payee,
at 2600 Citadel Plaza Drive, Suite 300, Houston, Harris County, 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 1, 2000, 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, 2000. 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, 2000.
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 Eleventh Renewal, without
joinder and consent of any other party; and (c) the execution, delivery and
performance of this Eleventh 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
Eleventh Renewal, the Note is hereby modified and amended to conform with this
Eleventh Renewal. Except as modified, renewed and extended by this Eleventh
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 Eleventh
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 Eleventh 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 Eleventh 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 Eleventh 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 non-monetary) against Payee.
EXECUTED this day and year first above written, but effective for all
purposes as of December 1, 1999.
PLAZA CONSTRUCTION, INC., a Texas corporation
By:_______________________________________________
Martin Debrovner, Vice President
"MAKER"
WEINGARTEN REALTY INVESTORS, a Texas real estate
investment trust
By:_______________________________________________
Bill Robertson, Jr., Executive Vice President
"PAYEE"
THE STATE OF TEXAS
COUNTY OF MONTGOMERY
This instrument was acknowledged before me on this ______ day of
____________, 2000, by Martin Debrovner, Vice President of PLAZA CONSTRUCTION,
INC., a Texas corporation, on behalf of said corporation.
Notary Public, State of Texas
THE STATE OF TEXAS
COUNTY OF MONTGOMERY
This instrument was acknowledged before me on this ______ day of
______________, 2000, 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.
Notary Public, State of Texas
CREDIT AGREEMENT
This Credit Agreement is executed by the parties hereto on
___________________, but is effective as of the Effective Date (as hereinafter
defined). Weingarten Realty Investors, a Texas real estate investment trust
(the "Borrower"), Bank of America, N.A., a national banking association (in its
individual capacity "BOA") and any bank that may hereafter become a party hereto
in accordance with the provisions hereof (each individually, a "Bank" and
collectively, the "Banks"), and BOA as Agent hereunder (in such capacity, the
"Agent") for the Banks hereunder, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Certain Defined Terms. As used in this Credit Agreement (the
"Agreement"), the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Act" shall have the meaning specified in Section 5.01.
"Adjusted Net Proceeds" has the meaning specified in Section 7.04.
"Adjusted Tangible Net Worth" means, as of any date, (a) Net Worth, less
(b) the aggregate book value of Intangible Assets shown on the balance sheet of
the Borrower prepared in accordance with GAAP, plus (c) accumulated depreciation
shown on the balance sheet of the Borrower prepared in accordance with GAAP.
"Advance" means the Advances under the Revolving Credit Loan provided for
in Section 2.01 hereof.
"Affiliate" means any Person which, directly or indirectly, controls or is
controlled by or is under common control with another Person. For purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities or by contract or otherwise.
"Annual Service Charge" means, for any Calculation Period, the sum of (i)
the amount accrued during such period in respect of interest (including the
interest component of Capitalized Lease obligations) and original issue discount
of Debt of the Borrower and its Subsidiaries, plus (ii) amounts accrued by the
Borrower and its Subsidiaries in respect of Disqualified Stock (including,
without limitation, dividends payable thereon).
"Annual Service Charge Coverage Ratio" has the meaning specified in Section
7.07(a).
"Applicable Margin" shall mean with respect to any LIBOR Rate Advance, a
rate per annum equal to fifty-five one hundredths of one percent (.55%).
"Assignee" has the meaning specified in Section 10.08(a) hereof.
"Assignment and Acceptance" has the meaning specified in Section 10.08(a)
hereof.
"Bell Plaza" has the meaning specified in Section 6.10 hereof.
"Bell Plaza Shopping Center" has the meaning specified in Section 6.10
hereof.
"Borrowing" means a revolving credit loan borrowing under Section 2.01
hereof consisting of one Advance from each Bank, of the same Type made on the
same day.
"Business Day" means a day of the year on which banks are not required or
authorized to close in Dallas, Texas and, if the applicable Business Day relates
to any LIBOR Rate Advances, on which dealings are carried on in the London
interbank market.
"Calculation Period" shall mean the applicable period specified in this
Agreement for the particular test or other calculation required hereunder.
"Capital Shares" means, with respect to any Person, any capital stock or
capital shares (including without limitation, preferred stock or shares),
interests, participations or other ownership interests (however designated) of
such Person, and any rights, warrants, or options to purchase any thereof.
"Capitalized Lease" means any lease of any property (whether real, personal
or mixed) which, in conformity with GAAP, is accounted for as a capital lease on
the balance sheet of the lessee.
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by an
agency thereof or by the Federal National Mortgage Association; (b) commercial
paper maturing no more than ninety (90) days after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-1 or P-1 from
either S&P or Moody's (or, if at any time neither S&P nor Moody's shall be
rating such obligations, then the highest rating from such other nationally
recognized rating services acceptable to the Agent); (c) investments in
repurchase agreements backed by securities described in clause (a) hereof; and
(d) domestic and eurodollar certificates of deposit or bankers' acceptances
maturing within ninety (90) days after the date of acquisition thereof issued by
any Bank or any commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having capital of not
less than $100,000,000.
"Central Plaza" has the meaning specified in Section 6.09 hereof.
"Central Plaza Shopping Center" has the meaning specified in Section 6.09
hereof.
"Closing Date" means the date the Agreement becomes effective in accordance
with Article IV.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute.
"Commitment" means, as to any Bank, such Bank's Pro Rata Percentage of
$100,000,000, as such amount is set forth on the signature pages hereof with
respect to each Bank on and as of the Closing Date, and as it may be reduced
from time to time in accordance with Section 2.05, and includes its commitment
in respect of the Revolving Credit Loan as described in Section 2.01, and
"Commitments" means, collectively, the Commitments for all the Banks.
"Commitment Fee" means, the $75,000 nonrefundable Commitment Fee, to be
paid to Agent in consideration of the commitment of Agent to make the proceeds
of the Revolving Loan available to the Borrower from time to time during the
term of, and as provided in, this Agreement. The Borrower and Agent acknowledge
and agree that the Commitment Fee is a bona fide commitment fee and is intended
as reasonable compensation to Agent for committing to make funds available to
the Borrower as described herein and for no other purpose.
"Compliance Certificate" has the meaning specified in Section 6.01(c).
"Debt"of the Borrower or any Subsidiary means any indebtedness of the
Borrower, or any Subsidiary, whether or not contingent, in respect of (without
duplication):
(i) borrowed money, or obligations evidenced by bonds, notes,
debentures or similar instruments,
(ii) the portion of indebtedness secured by any Lien existing on
property owned by the Borrower or any Subsidiary,
(iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit or similar instruments issued or confirmed
by banks or other financial institutions for the account of the Borrower or any
Subsidiary,
(iv) amounts representing the balance deferred and unpaid of the
purchase price of any property or services (except any such balance that
constitutes trade payables) or conditional sale obligations or obligations under
any title retention agreement,
(v) the principal amount of all obligations of the Borrower or any
Subsidiary with respect to redemption, repayment or other repurchase of any
Disqualified Stock,
(vi) Guaranties, or
(vii) obligations of the Borrower or any Subsidiary as lessee under a
Capitalized Lease; provided that the items of indebtedness under (i), (ii),
(iii) and (iv) above shall be deemed to be Debt only to the extent that any such
items (other than obligations in respect of letters of credit) would appear as a
quantified liability on the Borrower's consolidated balance sheet in accordance
with GAAP (as distinguished from being referred to in the notes to such
Financial Statement).
The term "Debt" shall not include (x) contingent liabilities relating to
deposit and/or endorsement of checks in the ordinary course of business of the
Borrower or any Subsidiary; or (y) guaranties or contingent liabilities under
leases customarily undertaken or incurred by the Borrower or any Subsidiary in
the ordinary course of business as either landlord or tenant. The term "Debt"
includes the Borrower's and Subsidiaries' share of debt of partnerships and
joint ventures (other than debt that is non-recourse to the Borrower or its
Subsidiaries) which are accounted for on the Borrower's Financial Statements
under the equity method of accounting.
"Debtor Laws" means all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization or
similar laws or general equitable principles from time to time in effect
affecting the rights of creditors generally.
"Default" means any event which, with the lapse of time or giving of
notice, or both, would constitute an Event of Default.
"Disqualified Stock" means, with respect to any Person, any Capital Shares
of such Person, which by the terms thereof (or by the terms of any security or
instrument into which such Capital Shares are convertible or for which such
Capital Shares are exchangeable or exercisable) upon the happening of any event
or otherwise, (i) mature or are mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, (ii) are convertible into or exchangeable or
exercisable for Debt or Disqualified Stock, or (iii) are redeemable at the
option of the holder thereof, in whole or in part, in each case on a date prior
to the stated maturity of the Notes.
"Effective Date" shall mean the earlier to occur of (i) Borrower's giving
Agent written notice designating an effective date (which designated date shall
be no earlier than 3 Business Days following the giving of such notice), or (ii)
March 1, 2000, provided, in either case, that Borrower has wire transferred to
Agent the Commitment Fee.
"Eligible Assignee" means any of (i) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia; and
(ii) a savings and loan association or savings bank organized under the laws of
the United States, or any State thereof or the District of Columbia, provided,
however, that no institution described in clause (i) or (ii) above shall be an
Eligible Assignee unless it has total assets in excess of $20 billion and unless
debt obligations issued by such financial institution (or by a parent entity
owning beneficially all of the capital stock of such financial institution) are
rated "Baa2" or higher by Moody's or "BBB" or higher by S & P.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Subsidiary or trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a member and
which is under common control within the meaning of Section 414 of the Code and
the rules and regulations thereunder.
"ERISA Event" means any of the following events: (a) a "Reportable Event"
described in Section 4043 of ERISA and the regulations issued thereunder (other
than a "Reportable Event" not subject to the provisions for the 30-day notice to
the PBGC under such regulations), (b) the withdrawal of the Borrower from a PBGC
Plan during a plan year in which it was a Asubstantial employer" as defined in
Section 4001 (a)(2) of ERISA or the incurrence of liability by the Borrower
under Section 4064 of ERISA, (c) the distribution of a notice of intent to
terminate a PBGC Plan pursuant to Section 4041 (c) of ERISA or the treatment of
a PBGC Plan amendment as a termination under Section 4041 of ERISA, (d) the
institution of proceedings to terminate a PBGC Plan by the PBGC, or (e) any
other event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
PBGC Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Events of Default" has the meaning specified in Section 8.01.
"Financial Statements" shall mean statements of the financial condition of
the Borrower and its Subsidiaries on a consolidated basis as set forth in the
Borrower's Annual Report on Form 10K for each calendar year, or in the
Borrower's Quarterly Report on Form 10-Q for each quarterly accounting period,
and filed with the Securities and Exchange Commission, or if such filing is not
permitted or required at any time, financial statements in such form of the
Borrower and its Subsidiaries on a consolidated basis, delivered to the Agent
and, in such event, for quarterly financial statements, certified by a
Responsible Officer as presenting fairly the consolidated financial position of
the Borrower and its Subsidiaries as of the date indicated and the results of
their operations for the period indicated in conformity with GAAP, consistently
applied, subject to changes resulting from year-end adjustments, and for
year-end financial statements together with the unqualified opinion of Deloitte
& Touche, or other independent public accountants of recognized national
standing selected by the Borrower, stating that such financial statements fairly
present the consolidated financial position of the Borrower and its Subsidiaries
as of the date indicated and the consolidated results of their operations and
changes in financial position for the period indicated in conformity with GAAP,
consistently applied.
"Fixed Charge" means, for any Calculation Period, the sum of (i) the amount
accrued during such period in respect of interest (including the interest
component of Capitalized Lease Obligations) and original issue discount of Debt
of the Borrower and its Subsidiaries, plus (ii) principal payments on Debt
scheduled to be paid during such period (excluding any balloon payment on notes
or other obligations which are normally refinanced) plus (iii) amounts accrued
by the Borrower and its Subsidiaries in respect of Borrower's (and its
Subsidiaries') outstanding preferred stock (including, without limitation,
dividends payable thereon).
"Fixed Charge Coverage Ratio" has the meaning specified in Section 7.07(b).
"Funds from Operations" means for any Calculation Period, net income of the
Borrower and its Subsidiaries plus (i) each of the following, to the extent
actually deducted in arriving at such net income during such period: (A)
depreciation and amortization expenses, (B) the amount accrued during such
period in respect of interest (including the interest component of Capitalized
Lease obligations) and original issue discount of Debt of the Borrower and its
Subsidiaries, and (C) extraordinary charges plus (ii) the excess, if any, of the
share of distributable funds allowable under any joint venture or partnership
which is not a Guarantor over net income from such joint venture or partnership,
minus (iii) each of the following to the extent actually included in arriving at
such net income during such period: (x) gains on the sale or disposition of
properties and investment securities of the Borrower and its Subsidiaries, and
(y) the excess, if any, of net income from any joint venture or partnership
which is not a Guarantor, over the share of distributable funds allowable under
the applicable joint venture or partnership agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants, and statements and pronouncements of
the Financial Accounting Standards Board.
"Governmental Authority" means any (domestic or foreign) federal, state,
county, municipal, parish, provincial, or other government, or any department,
commission, board, court, agency (including, without limitation, the
Environmental Protection Agency), or any other instrumentality of any of them or
any other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory, or administrative functions of, or pertaining
to, government, including, without limitation, any arbitration panel, any court,
or any commission.
"Governmental Requirement" means any order, permit, law, statute
(including, without limitation, any statute enacted in connection with or
relating to the protection or regulation of the environment), code, ordinance,
rule, regulation, certificate, or other direction or requirement of any
Governmental Authority.
"Guarantor" means each Subsidiary which is a corporation, 100% of the
capital stock of which is owned by the Borrower, or a Subsidiary, and that has
executed or will execute a Guaranty Agreement, including without limitation,
each Guaranty Agreement executed in accordance with Section 6.06 herein.
"Guaranty" or "Guarantees" has the meaning specified in Section 7.12, and
does not include a "Guaranty Agreement", executed in favor of the Banks in
connection with this Agreement.
"Guaranty Agreement" means a Guaranty Agreement executed by each
Guarantor substantially in the form of Exhibit 1.01-A, attached hereto.
"Highest Lawful Rate" means, with respect to each Bank, the maximum
nonusurious interest rate, if any, that at any time or from time to time may
be contracted for, taken, reserved, charged, or received with respect to any
Note or on other amounts, if any, due to such Bank pursuant to this Agreement
or any other Loan Document under laws applicable to such Bank which are
presently in effect or, to the extent allowed by law, under such applicable
laws which may hereafter be in effect.
"Intangible Assets" means those assets of the Borrower which are (a)
deferred assets, other than prepaid insurance and prepaid taxes, (b) patents,
copyrights, trademarks, tradenames, franchises, goodwill, experimental expenses
and other similar assets which would be classified as intangible assets on a
balance sheet of the Borrower, prepared in accordance with GAAP, and (c)
unamortized debt discount and expenses.
"Interest Period" means, for each LIBOR Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Advance or the
date of the conversion of any Advance into such an Advance and ending on
the last day of the period elected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last
day of the period selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be seven (7) days or one, two
or three months, as the Borrower may, upon notice received by the Agent
have selected in accordance with Section 2.02; provided however, that:
(i) the duration of any Interest Period which commences before any principal
repayment date required hereunder and would otherwise end (but for this
provision) after such date shall end on such date; and
(ii) whenever the last day of any Interest Period would otherwise (but for
this provision) occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day,
provided, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.
"Interest Rate Agreements" shall have the meaning specified in Section
8.01(i).
"Investment" of any Person means any investment so classified under GAAP,
and, whether or not so classified, includes (a) any direct or indirect loan or
advance made by it to any other Person, whether by means of stock purchase,
loan, advance or otherwise, (b) any capital contribution to any other Person,
and (c) any ownership or similar interest in any other Person.
"LIBOR Rate" means, for any Interest Period for each LIBOR Rate Advance, an
interest rate per annum determined by the Agent to be the average (rounded, if
necessary, to the nearest whole multiple of one thirty-second of one percent
(1/32%) if such average is not a multiple thereof) of the rate per annum at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days prior to the
commencement of such Interest Period, in an amount substantially equal to such
LIBOR Rate Advance and for a period equal to such Interest Period.
"LIBOR Rate Advance" means an Advance which bears interest at the LIBOR
Rate as provided in Section 2.06(a).
"LIBOR Rate Reserve Percentage" of any Bank for any Interest Period for any
LIBOR Rate Advance means the reserve percentage, if any, applicable during such
Interest Period (or if more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement,
expressed as a percentage per annum) for such Bank with respect to liabilities
or assets consisting of or including eurocurrency liabilities having a term
equal to such Interest Period.
"Lien" means any claim, mortgage, deed of trust, pledge, security interest,
encumbrance, lien, or charge of any kind (including, without limitation, any
agreement to give any of the foregoing), any conditional sale or other title
retention agreement, or the interest of the lessor under any Capitalized Lease
(but otherwise excluding leases).
"Loan Documents" means this Agreement, the Notes, the Guaranty Agreements,
and any document or instrument executed in connection with the foregoing.
"Majority Banks means at any time Banks holding at least 66 2/3% of the
then aggregate unpaid principal amount of the Notes held by Banks, or, if no
such principal amount is then outstanding, Banks having at least 66 2/3% of the
Commitments.
"Margin Stock" shall have the meaning assigned to such term in any of
Regulation T, U or X.
"Moody's" means Moody's Investors Service, Inc.
"Morgan Loan (Series 1995)" has the meaning specified in Section 6.09
hereof.
"Morgan Loan (Series 1996)" has the meaning specified in Section 6.10
hereof.
"Multiemployer Plan" means a Amultiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or
accruing or has made or accrued an obligation to make contributions.
"Net Proceeds" means with respect to the disposition of Real Property of
the Borrower permitted by Section 7.04 hereof, all proceeds realized from such
disposition after deducting: (i) any withholding taxes arising from the
disposition of assets located outside of the United States; (ii) the ordinary
and customary out-of-pocket costs of such disposition; and (iii) amounts applied
to the repayment of Debt secured by Liens on such Real Property, to the extent
such Liens were not prohibited hereunder. "Net Proceeds" shall also include
proceeds of insurance with respect to an actual or constructive loss of such
property, an agreed or compromised loss of such property or the taking of any
such property under the power of eminent domain and condemnation awards and
awards in lieu of condemnation for the taking of property under the power of
eminent domain.
"Net Worth" means, as of any date, Assets (which term, for the purposes
hereof, means Assets as shown on a balance sheet prepared in accordance with
GAAP) minus Liabilities (which term, for the purposes hereof, means Liabilities
as shown on a balance sheet prepared in accordance with GAAP).
"Non-Recourse Debt" of any Person means Debt of such Person in respect of
which (other than with respect to agreements in respect of such Debt regarding
the occurrence of certain wrongful acts or misapplication of funds) (i) the
recourse of the holder of such Debt, whether direct or indirect and whether
contingent or otherwise, is effectively limited to the assets directly securing
such Debt; and (ii) such holder may not collect by levy of execution against
assets of such Person generally (other than the assets directly securing such
Debt) if such Person fails to pay such Debt when due and the holder obtains a
judgment with respect thereto.
"Note" or "Notes" has the meaning specified in Section 2.02(c).
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Interest Conversion" has the meaning specified in Section 2.09.
"Obligations" means all of the obligations of the Borrower and its
Subsidiaries now or hereafter existing under the Loan Documents to which it is a
party, whether for principal, interest, fees, expenses, indemnification or
otherwise.
"Organizational Document" has the meaning set forth in Section 4.01(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Debt" means Debt which does not exceed the limits specified in
Section 7.02.
"Permitted Liens" means:
(a) non-consensual Liens imposed by operation of law including, without
limitation, Liens for taxes not yet delinquent, landlord Liens for rent not yet
due and payable, and Liens for materialmen, mechanics, warehousemen, carriers,
employees, workmen, repairmen, current wages, or accounts payable not yet
delinquent and arising in the ordinary course of business; provided, however,
that any right to seizure, levy, attachment, sequestration, foreclosure, or
garnishment with respect to Property of the Borrower or any Subsidiary by reason
of such Lien has not matured, or has been, and continues to be, effectively
enjoined or stayed;
(b) easements, rights-of-way, restrictions, and other similar Liens or
imperfections to title which do not materially interfere with the occupation,
use, and enjoyment by the Borrower or any Subsidiary of the Property encumbered
thereby or materially impair the value of such Property subject thereto for its
intended purpose;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business (i) in connection with workers'
compensation, unemployment insurance and other types of social security, or (ii)
to secure (or to obtain letters of credit that secure) the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
performance or payment bonds, purchase, construction or sales contracts and
other similar obligations, in each case not incurred or made in connection with
the borrowing of money, the obtaining of advances or credit or the payment of
the deferred purchase price of property; and
(d) UCC protective filings with respect to personal property leased to
the Borrower or any Subsidiary.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a Governmental Authority.
"Plan" means any employee benefit plan within the meaning of Section 3(3)
of ERISA, other than a Multiemployer Plan, maintained by the Borrower or any
ERISA Affiliate.
"Prime Rate" shall mean for each Prime Rate Portion the rate per annum most
recently established by Agent as its Aprime rate". Without notice to the
Borrower or any other Person, the Prime Rate shall change automatically from
time to time as and in the amount by which such prime rate shall fluctuate, with
each such change to be effective as of the date of each change in such prime
rate. The Prime Rate is set by Agent as a general reference rate of interest,
taking into account such factors as Agent may deem appropriate, it being
understood that it is not necessarily the lowest or best rate actually charged
to any customer or a favored rate, that it may not correspond to any future
increases or decreases of interest rates charged by other lenders, or market
rates in general, and Agent may make various commercial or other loans at rates
of interest having no relationship to such rate.
"Prime Rate Advance" means an Advance which bears interest at the Prime
Rate.
"Property" means any interest or right in any kind of property or asset,
whether real, personal, or mixed, owned or leased, tangible or intangible, and
whether now held or hereafter acquired.
"Pro Rata Percentage" or Aratably" means as to any Bank a fraction
(expressed as a percentage) the numerator of which shall be the aggregate
original principal amount of such Bank's Note and the denominator of which shall
be $100,000,000.
"Rating Certificate" has the meaning specified in Section 6.01(h).
"Real Property" means all of the land, buildings, improvements and projects
under construction owned by the Borrower or any Subsidiary, including without
limitation all improvements thereon, fixtures, and any leasehold or other
interest in such property owned or held by the Borrower or any Subsidiary, but
excluding Property under direct financing leases (as reflected on the balance
sheet of the Borrower).
"Register" has the meaning specified in subsection 10.08(c) hereof.
"Regulation T" "Regulation U" and "Regulation X" means Regulation T, U or
aX,s the case may be, of the Board of Governors of the Federal Reserve System,
or any successor or other regulation hereafter promulgated by said Board to
replace the prior Regulation T, U or X and having substantially the same
function.
"Responsible Officer"means the chief financial officer or the chief
accounting officer of the Borrower.
"Revolving Credit Loan" or "Revolving Loan" means the revolving credit loan
to be made under Section 2.01 hereof.
"Revolving Credit Termination Date" means the earlier of (i) three hundred
sixty-four (364) days from the Effective Date of this Agreement or (ii) the date
(x) the Commitments have been terminated in accordance with this Agreement
(including, without limitation, under Section 8.01 hereof) and (y) all amounts
due and owing under the Notes have been paid in full.
"S&P" means Standard & Poor's Rating Service, a division of The McGraw Hill
Companies.
"Subsidiary" shall mean (i) a corporation of which a sufficient number of
shares of stock having ordinary voting power (other than stock having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors of such corporation are owned directly or indirectly by the
Borrower, or (ii) any partnership or other business entity, with respect to
which the Borrower or a Guarantor owns an equity interest sufficient to exercise
majority voting power over management decisions. For purposes of clause (ii)
aforesaid, neither the Borrower nor a Guarantor shall be deemed to own an equity
interest sufficient to exercise Amajority voting power over management
decisions" if certain major decisions of such partnership or other business
entity (e.g., a decision to sell property) require consent of Persons other than
the Borrower or Guarantor. For purposes of this definition, Weingarten
Properties Trust, a Texas real estate investment trust, shall not be deemed to
be a Subsidiary.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets, and (ii) the aggregate book value of all other assets of the
Borrower and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP (after deducting therefrom assets classified as Aintangible assets" in
accordance with GAAP.)
"Total Commitment" shall mean the sum of the Commitments in effect under
this Agreement from time to time.
"Type" refers to the determination whether an Advance is a Prime Rate
Advance or a LIBOR Rate Advance (or a Borrowing comprised of such Advances).
"Undepreciated Real Estate Assets" as of any date means the aggregate book
value, before deduction for depreciation and amortization, of Real Property
assets of the Borrower and the Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"Unimproved Real Property" shall mean Land Held For Development, as
reflected on the Financial Statements.
SECTION I.2. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the financial statements referred to in Section
5.02.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION II.1. The Revolving Credit Loan. Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make Advances on a revolving
credit basis to the Borrower from time to time on any Business Day during the
period on and after the Effective Date hereof until the Revolving Credit
Termination Date, in an aggregate amount not to exceed at any time outstanding
an amount equal to such Bank's Commitment. Each Borrowing shall be in an
aggregate amount not less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof and shall consist of Advances of the same Type made on the
same day by the Banks ratably according to their respective Commitments. Within
the limits set forth herein, until, and including, the Revolving Credit
Termination Date, the Borrower may borrow, prepay pursuant to Sections 3.02 and
3.03 and reborrow under this Section 2.01. The principal amount outstanding of
all Advances shall mature and, together with accrued and unpaid interest
thereon, shall be due and payable on the Revolving Credit Termination Date.
SECTION II.2. Making the Advances on the Revolving Credit Loan.
(a) Each Borrowing shall be made on the Borrower's written notice in
the form set forth as Exhibit 2.02(a), attached hereto ("Notice of Borrowing")
or oral notice (containing the information required in a Notice of Borrowing)
given by the Borrower to the Agent not later than 10:00 A.M. (Dallas, Texas
time) (i) on the third Business Day prior to the date of the proposed Borrowing
in the case of a LIBOR Rate Advance, and (ii) on the same Business Day of the
proposed Borrowing in the case of a Prime Rate Advance (to the extent permitted
under Section 2.06(b)). With respect to any oral Notice of Borrowing, the
Borrower shall promptly thereafter confirm such notice in writing. Each Notice
of Borrowing shall specify therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing comprised of LIBOR Rate Advances,
the initial Interest Period for each such Advance; provided that, there shall
not be more than three (3) Interest Periods for a period of seven (7) days in
effect at any one time with respect to any Note, and no more than seven (7)
Interest Periods in effect in the aggregate at any one time with respect to any
Note. The Agent shall promptly deliver a copy of each Notice of Borrowing to
each Bank. Each Bank shall, before 11:00 A.M. (Dallas time) on the date of such
Borrowing, make available to the Agent at its address referred to in Section
10.02, in immediately available funds, such Bank's ratable portion of such
Borrowing. After the Agent's receipt from the Banks of such funds (and not prior
thereto), and upon fulfillment of the applicable conditions set forth in Article
IV, the Agent will promptly make such funds available to the Borrower at the
Agent's aforesaid address. Each Notice of Borrowing shall be irrevocable and
binding on the Borrower.
(b) The failure of any Bank to make an Advance to be made by it as part
of any Borrowing shall not relieve any other Bank of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the Advance to be made
by such other Bank on the date of any Borrowing.
(c) The Borrower shall execute and deliver for each Bank to evidence
the Advances made or to be made by such Bank pursuant to Section 2.01 hereof, a
promissory note (each such note a "Note" and more than one Note, the "Notes"),
dated as of the Closing Date, in the amount of such Bank's Commitment. Each Note
shall be substantially in the form of Exhibit 2.02(c) with the blanks
appropriately filled, and shall mature on the Revolving Credit Termination Date.
SECTION II.3. INTENTIONALLY DELETED.
SECTION II.4. INTENTIONALLY DELETED.
SECTION II.5. Reduction of the Commitments. The Borrower shall have the
right, upon at least three (3) Business Days' notice to the Agent, to terminate
in whole or reduce ratably in part the unused portions of the Commitments of the
Banks, provided that each partial reduction shall be in the aggregate amount of
$5,000,000 or an integral multiple thereafter of $1,000,000. Any termination or
reduction pursuant to this Section 2.05 shall be a permanent termination or
reduction of the Commitments.
SECTION II.6. Interest. Each Advance shall bear interest at the rates set
forth below, and the Borrower shall pay interest on the unpaid principal amount
of each Advance made by each Bank from the date of such Advance until such
principal amount shall be paid in full, at the times and at the rates per annum
set forth below:
(a) LIBOR Rate Advances. During such periods as such Advance is a LIBOR
Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the lesser of (i) the sum of the LIBOR Rate for such
Interest Period for such Advance plus the Applicable Margin, together with
additional interest due under Section 2.07 hereof, if any, and (ii) the Highest
Lawful Rate, payable quarterly in arrears on the first day of each calendar
quarter, commencing with the calendar quarter following the calendar quarter in
which the Effective Date of this Agreement occurs, and on the Revolving Credit
Termination Date.
(b) Prime Rate Advances. During such periods as such Advance is a Prime
Rate Advance, a rate per annum equal at all times to the lesser of (i) the Prime
Rate and (ii) the Highest Lawful Rate, payable quarterly in arrears on the first
day of each calendar quarter, commencing with the calendar quarter following the
calendar quarter in which the Effective Date of this Agreement occurs, and on
the Revolving Credit Termination Date.
(c) Interest Computations. All computations of interest hereunder at
the Prime Rate pursuant to this Article II shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of
interest hereunder at the LIBOR Rate (plus the Applicable Margin) pursuant to
this Article II shall be made by the Agent on the basis of a year of 360 days
(but if a 360 day calculation would result in a rate in excess of the Highest
Lawful Rate, then based on a year of 365 or 366 days, as the case may be), in
each case (whether for a LIBOR Rate Advance or a Prime Rate Advance) for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Each determination
by the Agent of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Past Due Rate. Any amount of principal which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear interest,
from the date on which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to the lesser of (i)
two percent (2%) per annum above the Prime Rate in effect from time to time and
(ii) the Highest Lawful Rate.
SECTION II.7. Additional Interest on LIBOR Rate Advances. Subject to
Section 10.09 hereof, the Borrower shall pay to each Bank, at such time as and
so long as such Bank shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Advance of such Bank
during such periods as such Advance is a LIBOR Rate Advance, from the date of
such Advance until such principal amount is paid in full, at an interest rate
per annum, equal at all times to the remainder obtained by subtracting (a) the
LIBOR Rate for such Interest Period for such LIBOR Rate Advance from (b) the
rate obtained by dividing such LIBOR Rate by a percentage equal to 100% minus
the LIBOR Rate Reserve Percentage of such Bank for such Interest Period, payable
on each date on which interest is payable on such LIBOR Rate Advance pursuant to
Section 2.06(a) hereof. Such additional interest shall be determined by such
Bank (subject to Section 10.09) and notified to the Borrower through the Agent,
and each such notification shall be conclusive absent manifest error.
SECTION II.8. Interest Rate Determination and Protection. (a) The rate of
interest for each LIBOR Rate Advance specified in a Notice of Borrowing or a
Notice of Interest Conversion, shall be determined by the Agent two (2) Business
Days before the first day of the Interest Period applicable for such Advance.
The Agent shall give prompt notice to the Borrower and the Banks of the
applicable interest rate determined by the Agent for purposes of Section 2.06(a)
hereof, and each such determination by the Agent shall be conclusive, absent
manifest error.
(b) If, with respect to any LIBOR Rate Advances, the Majority Banks
notify the Agent that the LIBOR Rate (plus the Applicable Margin) for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Banks of making, funding or maintaining their respective LIBOR Rate
Advances for such Interest Period, the Agent shall forthwith promptly so notify
the Borrower and the Banks, whereupon;
(i) each LIBOR Rate Advance, which has been effected, will
automatically, on the last day of the then existing Interest Period therefor,
convert into a Prime Rate Advance; and
(ii) the obligation of the Banks to make, or to convert Advances into,
LIBOR Rate Advances shall be suspended until the Agent shall notify the Borrower
and the Banks that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to deliver to the Agent a Notice of
Interest Conversion in accordance with Section 2.09 hereof or to select the
duration of any subsequent Interest Period for the principal amount outstanding
under any LIBOR Rate Advance prior to the last day of the Interest Period
applicable to such Advance, the Agent will forthwith so notify the Borrower and
the Banks, and such Advances will automatically, on the last day of the then
existing Interest Period therefor, convert into LIBOR Rate Advances at the LIBOR
Rate in effect two Business Days prior to such date for an Interest Period of
one month, plus the Applicable Margin.
(d) Notwithstanding any other provision of this Agreement, if any Bank
shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for any Bank to
perform its obligations hereunder to make LIBOR Rate Advances or to fund or
maintain LIBOR Rate Advances hereunder, (i) the obligation of such Bank to make,
or to convert Advances into, LIBOR Rate Advances shall be suspended until such
Bank shall notify the Borrower and the Agent that the circumstances causing such
suspension no longer exist and (ii) the Borrower shall forthwith prepay in full
all LIBOR Rate Advances of such affected Bank then outstanding, unless the
Borrower, within two (2) Business Days of notice from the Agent, converts all
LIBOR Rate Advances of such Bank then outstanding into Prime Rate Advances in
accordance with Section 2.09.
SECTION II.9. Voluntary Interest Conversion of Advances. The Borrower may
on any Business Day prior to the Revolving Credit Termination Date, upon the
Borrower's written notice in the form set forth as Exhibit 2.09 attached hereto
("Notice of Interest Conversion"), or oral notice (containing the information
requested in a Notice of Interest Conversion) given to the Agent not later than
10:00 A.M. (Dallas, Texas time) on the third (3rd) Business Day prior to the
date of the proposed interest conversion in the case of a LIBOR Rate Advance,
(i) convert all such LIBOR Rate Advances into Prime Rate Advances, (ii) convert
all LIBOR Rate Advances for a specified Interest Period into LIBOR Rate Advances
for a different Interest Period or (iii) convert all Prime Rate Advances into
LIBOR Rate Advances; provided however, with respect to any oral Notice of
Interest Conversion, the Borrower shall promptly confirm such notice in writing;
provided further that, any conversion of any LIBOR Rate Advances into a Prime
Rate Advance or a different Interest Period shall be made on, and only on, the
last day of an Interest Period for such LIBOR Rate Advances (unless the
provisions of Sections 2.07, 2.08(d) or 3.04 apply). Each such Notice of
Interest Conversion shall specify therein (i) the requested date of such
interest conversion, (ii) the Advances to be converted and (iii) if such
interest conversion is into Advances constituting LIBOR Rate Advances, the
duration of the Interest Period for each such Advance. The Agent shall promptly
deliver a copy of each Notice of Interest Conversion to each Bank. Each Notice
of Interest Conversion shall be irrevocable and binding on the Borrower.
SECTION II.10. Funding Losses Relating to LIBOR Rate Advances. (a) If any
payment of principal of, or interest conversion of, any LIBOR Rate Advance is
made other than on the last day of an Interest Period relating to such Advance,
as a result of a conversion pursuant to Section 2.09, or a payment pursuant to
Sections 3.02, 3.03, or acceleration of the maturity of any Note in accordance
with the terms hereof, or for any other reason, the Borrower shall, upon demand
by the Agent or any Bank (with a copy of such demand to the Agent), pay to the
Agent for the account of such Bank any amounts required to compensate such Bank
for any additional losses, costs, or expenses which it may reasonably incur as a
result of such payment or interest conversion, including, without limitation,
any loss, cost, or expense incurred by reason of the liquidation or reemployment
of the amounts so prepaid or of deposits or other funds acquired by such Bank to
fund or maintain such Advance. Each Bank requesting compensation under this
Section 2. 10 shall deliver to the Borrower (with a copy to the Agent) a
certificate of such Bank setting forth the calculation of such amounts with
reasonable specificity and such certificate shall be conclusive, absent manifest
error.
(b) IN THE CASE OF ANY BORROWING, THE BORROWER SHALL INDEMNIFY EACH
BANK AGAINST ANY LOSS, COST, OR EXPENSE INCURRED BY SUCH BANK AS A RESULT OF ANY
FAILURE OF THE BORROWER TO FULFILL ON OR BEFORE THE DATE SPECIFIED IN A NOTICE
OF BORROWING THE APPLICABLE CONDITIONS SET FORTH IN ARTICLE IV, INCLUDING,
WITHOUT LIMITATION, ANY LOSS, COST, OR EXPENSE INCURRED BY REASON OF THE
LIQUIDATION OR REEMPLOYMENT OF THE AMOUNTS SO PREPAID OR OF DEPOSITS OR OTHER
FUNDS ACQUIRED BY SUCH BANK TO FUND THE ADVANCE TO BE MADE BY SUCH BANK AS PART
OF SUCH BORROWING WHEN SUCH ADVANCE, AS A RESULT OF SUCH FAILURE, IS NOT MADE ON
SUCH DATE.
(c) Any Bank demanding payment under this Section 2.10 shall deliver
to the Borrower and the Agent a statement reasonably setting forth the amount
and manner of determining such loss, cost, or expense, which statement shall be
conclusive and binding for all purposes, absent manifest error.
ARTICLE III
PAYMENTS, PREPAYMENTS,
INCREASED COSTS AND TAXES
SECTION III.1. Payments and Computations. (a) The Borrower shall
make each payment under this Agreement and under the Notes not later than 10:00
A.M. (Dallas time) on the day when due in U.S. dollars to the Agent at its
address referred to in Section 10.02 in immediately available funds. The Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or commitment fees (to the extent received by
the Agent) ratably to the Banks, and like funds relating to the payment of any
other amount payable to any Bank (to the extent received by the Agent) to such
Bank in each case to be applied in accordance with the terms of this Agreement.
(b) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be;
provided however, if such extension would cause payment of interest on or
principal of LIBOR Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day; further
provided that, the foregoing shall not obligate the Borrower to pay amounts
under Section 2.10.
(c) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Banks hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent the
Borrower shall not have so made such payment in full to the Agent, each Bank
shall repay to the Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the lesser of (i) the Prime Rate or (ii) the Highest Lawful Rate.
SECTION III.2. Voluntary Prepayments. Subject to Section 2.10, the Borrower
may, upon notice delivered to the Agent prior to 11:00 A.M. (Dallas, Texas time)
on any Business Day prior to the Revolving Credit Termination Date stating the
aggregate principal amount of the prepayment and the Advances to be prepaid,
prepay the outstanding principal amounts of such Advances comprising part of the
same Borrowing in whole or ratably in part, provided however, that all such
prepayments shall be made without premium or penalty thereon; and provided
further that, losses incurred by any Bank under Section 2.10 shall be payable
with respect to each such prepayment. Such notice shall be irrevocable and the
payment amount specified in such notice shall be due and payable on the
prepayment date described in such notice. Partial prepayments with respect to
any Advance shall be in an aggregate principal amount equal to the lesser of (a)
$1,000,000 or in greater integral multiples of $1,000,000, or (b) the aggregate
principal amount of Advances of such Banks outstanding. In the event that the
Borrower fails to notify the Agent as to which Advance is to be prepaid, the
partial prepayments shall be applied in the order of the next succeeding
expiration of outstanding Interest Periods.
SECTION III.3. Mandatory Prepayments. Within the time period specified in
Section 7.04, the Borrower shall deliver to the Agent, as a prepayment on the
Notes, an amount equal to the Adjusted Net Proceeds of a disposition of Real
Property of the Borrower or any Subsidiary permitted under Section 7.04;
provided, however, such delivery of the Adjusted Net Proceeds shall only be
required to the extent of any Adjusted Net Proceeds not delivered pursuant to
that certain Amended and Restated Credit Agreement dated November 21, 1996, by
and among the Borrower, Chase Bank of Texas, N.A., as Agent for itself and the
other banks named thereon. Upon receipt of such amount, the Agent shall
promptly deliver to each Bank, to the extent required under Section 7.04, its
Pro Rata Percentage of such prepayment. Upon the date on which a prepayment is
required under Section 7.04, the Commitment of each Bank shall be permanently
reduced in an amount equal to such Bank's Pro Rata Percentage of such Adjusted
Net Proceeds.
SECTION III.4. Increased Costs Capital Adequacy. (a) If, due to either (i)
the introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of LIBOR Rate Advances, included
in the LIBOR Rate Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Bank of agreeing to make or
making, funding or maintaining LIBOR Rate Advances (without duplication of
payments made under Section 3.05 or any other provision of this Agreement), then
the Borrower shall from time to time, upon demand by such Bank (with a copy of
such demand to the Agent), pay to the Agent for the account of such Bank
additional amounts sufficient to compensate such Bank for such increased cost;
provided that the Borrower shall only be liable for such additional costs
incurred by such Bank for the period commencing thirty (30) days after the date
of notice from such Bank to the Borrower of such additional amounts; and
provided further, that subject to Section 2. 10, the Borrower may elect to
convert outstanding LIBOR Rate Advances into Prime Rate Advances, in accordance
with Section 2.09.
(b) If any Bank determines that compliance with any law or regulation or any
guideline or request from any central bank or other governmental authority,
enacted after the date of this Agreement, or any new interpretation of an
existing law, regulation, guideline or request (whether or not having the force
of law) affects or would affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank and that the
amount of such capital is increased by or based upon the existence of such
Bank's Commitment to lend hereunder and other commitments of this type, then,
upon demand by such Bank (with a copy of such demand to the Agent), the Borrower
shall pay to the Agent for the account of such Bank, from time to time as
specified by such Bank, additional amounts sufficient to compensate such Bank or
such corporation in the light of such circumstances for such increased capital
requirement; provided that the Borrower shall only be liable for such additional
costs incurred by such Bank for the period commencing thirty (30) days after the
date of notice from such Bank to the Borrower of such additional amounts; and
provided further, that subject to Section 2.10, the Borrower may elect to
convert outstanding LIBOR Rate Advances into Prime Rate Advances in accordance
with Section 2.09.
SECTION III.5. Taxes (a) Any and all payments by the Borrower hereunder
or under the Notes shall be made, in accordance with Section 3.01, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Bank or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank or any
political subdivision thereof. If the Borrower shall be required by law to
deduct any such amounts from or in respect of any sum payable hereunder or under
any Note to any Bank or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.05) such Bank or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law. The Borrower further agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes.
(b) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 3.05 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION III.6. Certificate of Bank. Any Bank demanding compensation under
Section 3.04 or 3.05 shall deliver to the Borrower and the Agent a statement
reasonably setting forth the amount and manner of determining such loss, cost or
expense, which statement shall be conclusive and binding for all purposes,
absent manifest error.
ARTICLE IV
CONDITIONS OF LENDING
SECTION IV.1. Conditions Precedent to Initial Advances. The obligation of
each Bank to make its initial Advance on or after the date of this Agreement is
subject to the condition precedent that the Agent shall have received (or the
actions described below shall have occurred, as the case may be), the following,
in form and substance satisfactory to the Agent and (except for the Notes) in
sufficient copies for each Bank:
(a) The Notes, duly executed by the Borrower and payable to the order
of the Banks, respectively.
(b) This Agreement, duly executed by the Borrower.
(c) A Guaranty Agreement duly executed by each Guarantor.
(d) A certificate of the Secretary of the Borrower certifying (i) the names
and true signatures of the officers of the Borrower authorized to sign each Loan
Document to which the Borrower is a party and the notices and other documents to
be delivered by the Borrower pursuant to any-such Loan Document; (ii) the
Restated Declaration of Trust dated March 23, 1988, together with any amendments
thereto, (the "Organizational Documents") of the Borrower as in effect on the
date of such certification; and (iii) the resolutions of the Board of Trust
Managers of the Borrower approving and authorizing the execution, delivery, and
performance by the Borrower of each Loan Document to which the Borrower is a
party, the notices and other documents to be delivered by the Borrower pursuant
to any such Loan Document, and the transactions contemplated thereunder.
(e) A certificate of the Secretary of each Guarantor certifying (i) the
names and true signatures of the officers of such Guarantor authorized to sign
each Loan Document to which such Guarantor is a party and the notices and other
documents to be delivered by such Guarantor pursuant to any such Loan Document;
(ii) the By-laws and Articles of Incorporation of such Guarantor as in effect on
the date of such certification; and (iii) the resolutions of the Board of
Directors of such Guarantor approving and authorizing the execution, delivery,
and performance by such Guarantor of each Loan Document to which each such
Guarantor is a party, the notices and other documents to be delivered by such
Guarantor pursuant to any such Loan Document, and ihe transactions contemplated
thereunder.
(f) Subject to Section 6.08, certificates of appropriate officials as to the
existence and good standing of each of the Borrower and each Guarantor in its
jurisdiction of organization or incorporation, and any and all other
jurisdictions where the Property owned or the business transacted by each of the
Borrower and each Guarantor requires each of the Borrower and each Guarantor to
be qualified therein and where the failure to be so qualified would have a
material adverse effect on the business operations or financial condition of the
Borrower and the Guarantors, taken as a whole.
(g) A favorable opinion of Dow, Cogburn & Friedman, P.C., counsel for the
Borrower and the Guarantors, in form and substance satisfactory to the Banks.
(h) Payment to the Agent of all fees and expenses payable at Closing,
including, without limitation, fees of counsel to the Agent and the Banks
payable under Section 10.04.
(i) Such other documents and instruments with respect to the transactions
contemplated hereby as the Agent may reasonably request.
SECTION IV.2. Conditions Precedent to Each Borrowing. The obligation of each
Bank to make an Advance under the Revolving Credit Loan on the occasion of each
Borrowing (including the initial Borrowing) shall be subject to the further
conditions precedent that on the date of such Borrowing (a) the Agent shall have
received a Notice of Borrowing in accordance with the terms of this Agreement
and (b) the following statements shall be true and correct (and each of the
giving of the applicable Notice of Borrowing, and the acceptance by the Borrower
of the proceeds of such Borrowing, shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing such statements are
true and correct):
(a) The representations and warranties contained in Article V of this
Agreement are true and correct in all material respects on and as of the date of
such Borrowing, before and after giving effect to such Borrowing, and to the
application of the proceeds therefrom, as though made on and as of such date,
and
(b) No event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, which constitutes
(or would constitute) a Default or an Event of Default.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement, the Borrower
represents and warrants to the Banks (which representations and warranties will
survive the delivery of any Note and the making of any Advance that:
SECTION V.1. Existence. The Borrower (a) is a real estate investment trust
duly organized under the Texas Real Estate Investment Trust Act, Tex. Rev. Civ.
Stat. Ann. art. 6138A (Vernon 1986) (the "Act'), and in good standing under the
Act and the laws of the State of Texas, (b) has the power to own its Property
and to carry on its business as now conducted, and (c) is duly qualified to do
business and is in good standing in every jurisdiction where such qualification
is necessary. Each Subsidiary of the Borrower (x) is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated, (y) has the power to own its property and carry on its business as
now conducted, and (z) is duly qualified to do business and is in good standing
in every jurisdiction in which such qualification is necessary, and where the
failure to be so qualified or in good standing would have a material adverse
effect on the business operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole. The Subsidiaries of the Borrower, and the
jurisdiction of organization of each such Subsidiary, are set forth on Exhibit
5.01, hereto.
SECTION V.2. Financial Condition. The Borrower has furnished the Bank with
consolidated financial statements as at and for the twelve-month period ended
December 31, 1998, accompanied by the opinion of Deloitte & Touche, and
quarterly unaudited consolidated financial statements as at and for the
three-month periods ending March 31, 1999, June 30, 1999, and September 30,
1999. These statements are true and correct and have been prepared in
conformity with GAAP consistently followed throughout the periods involved. They
fully and accurately reflect the financial condition of the Borrower and its
Subsidiaries and the results of their operations as at the date and for the
period indicated.
SECTION V.3. Use of Proceeds Margin Stock. Neither the Borrower nor any
Subsidiary owns any Margin Stock. The proceeds of the Loans shall be used for
general trust purposes. None of the proceeds of Borrowings hereunder will be
used for the purpose of purchasing or carrying any Margin Stock or for the
purpose of reducing or retiring any indebtedness which was originally incurred
to purchase or carry a Margin Stock or for any other purpose which might
constitute this transaction a Apurpose" credit within the meaning of said
Regulation U, as now in effect or as it may hereafter be amended. Neither the
Borrower nor any Subsidiary nor any agent acting on its or their behalf has
taken or will take any action which might cause this Agreement or any Advance to
violate Regulation T, U or X or any other regulation of the Board of Governors
of the Federal Reserve System or to violate the Securities Exchange Act of 1934,
in each case as in effect now or as the same may hereafter be in effect on the
date of any Borrowing hereunder.
SECTION V.4. Binding Obligations. The Borrower has the power and authority
under the Act to make and carry out this Agreement, to make the borrowings
provided for herein, to execute and deliver the Notes, and to perform its
obligations hereunder and under the Notes; and all such action has been duly
authorized by all necessary proceedings on its part. Each Subsidiary which is a
party to a Guaranty Agreement has the power and authority to perform its
obligations in accordance with the terms and conditions of the Guaranty
Agreement to which it is a party, and all such action has been duly authorized
by all necessary proceedings on its part. Each of this Agreement and the Notes
have been duly and validly executed and delivered by the Borrower and constitute
a valid and legally binding obligation of the Borrower enforceable in accordance
with its terms, and the Guaranty Agreements have been duly executed and
delivered by the Guarantors and constitute valid and legally binding obligations
of each such Guarantor enforceable in accordance with the respective terms
thereof and of this Agreement, except as limited by Debtor Laws.
SECTION V.5. No Conflict or Resultant Lien. The execution, delivery, and
performance by the Borrower and each Subsidiary of each Loan Document to which
it is a party, the Borrowings hereunder by the Borrower as contemplated herein,
and the effectuation of the transactions contemplated by any Loan Document, do
not and will not violate any provision of, or result in a default under, the
Borrower's Organizational Documents, or the Articles of Incorporation or other
charter documents or by-laws of any Subsidiary, or any material agreement to
which the Borrower or such Subsidiary is a party, or Governmental Requirement to
which the Borrower or such Subsidiary is subject, or result in the creation or
imposition of any Lien upon any Property of the Borrower or such Subsidiary.
SECTION V.6. Compliance with Other Agreements. Neither the Borrower nor any
Subsidiary is in default in any material respect under any Governmental
Requirement. Neither the Borrower nor any Subsidiary is in default under any
other agreement, which default could have a material adverse effect on the
business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or the ability of the Borrower or any Guarantor
to perform its obligations under this Agreement or any other Loan Document to
which it is a party.
SECTION V.7. No Consent. No authorization or approval or other action by, and no
notice to or filing with, any Person or any Governmental Authority is required
for the due execution, delivery, and performance by each of the Borrower or any
Subsidiary of any Loan Document to which it is a party or the Borrowings
hereunder, in each case as contemplated herein, or the effectuation of the
transactions contemplated under any Loan Document.
SECTION V.8. Litigation. Except as described on Exhibit 5.08, attached hereto or
as disclosed in any Compliance Certificate, there are no material actions,
suits, or proceedings pending or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any Subsidiary, or the Properties of the
Borrower or any Subsidiary.
SECTION V.9. Taxes; Governmental Charges. The Borrower and each Subsidiary has
filed or caused to be filed all federal, state, and foreign income tax returns
which are required to be filed, and has paid or caused to be paid all taxes as
shown on such returns or on any assessment received by it to the extent that
such taxes have become due and payable, except for such taxes and assessments as
are being contested in good faith in appropriate proceedings and reserved for in
accordance with GAAP in the manner required by Section 6.04.
SECTION V.10. Full Disclosure. All information furnished by or on behalf of
the Borrower or any Subsidiary to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is true
and accurate in all material respects and not incomplete by omitting to state
any material fact necessary to make such information not misleading. There is no
material fact relevant to this Agreement or the transactions contemplated by
this Agreement known to the Borrower which has not been disclosed herein or in
such other written documents, information or certificates furnished to the Agent
and the Banks for use in connection with the transactions contemplated hereby.
SECTION V.11. Investment Company Act. Neither the Borrower nor any Subsidiary is
an Ainvestment company" or a company Acontrolled" by an Ainvestment company",
within the meaning of the Investment Company Act of 1940, as amended.
SECTION V.12. Compliance with Law. Except as disclosed in any Compliance
Certificate and approved by the Banks, the business and operations of the
Borrower and each Subsidiary as conducted at all times have been and are in
compliance in all material respects with all applicable Governmental
Requirements.
SECTION V.13. ERISA. Each of the Borrower and each Subsidiary is in compliance
in all material respects with all applicable provisions of ERISA and the Code
with respect to each Plan, including the fiduciary provisions thereof, and each
Plan is, and has been, maintained in material compliance with ERISA and, where
applicable, the Code. Full payment when due has been made of all material
amounts which the Borrower or any Subsidiary is required under the terms of each
Plan or applicable law to have paid as contributions to such Plan as of the date
hereof. For purposes of this Section 5.13, the term Amaterial" shall mean a
liability in excess of $10,000,000.
SECTION V.14. No Default or Event of Default. No Default or Event of Default
hereunder has occurred and is continuing.
SECTION V.15. Permits and Licenses. All material permits, licenses and other
governmental authorizations necessary for the Borrower or any Subsidiary to
carry on its business have been obtained and are in full force and effect and
neither the Borrower nor any Subsidiary is in breach of the foregoing. Each of
the Borrower and each Subsidiary owns or possesses adequate licenses or other
valid rights to use United States trademarks, trade names, service marks,
copyrights, patents and applications therefor which are necessary for the
conduct of the business, operations or financial condition of the Borrower or
such Subsidiary.
SECTION V.16. Insurance. Each of the Borrower and each Subsidiary maintains
insurance of such types as is usually carried by companies of established
reputation engaged in the same or similar business and which are similarly
situated with financially sound and reputable insurance companies and
associations acceptable to the Agent, with a rating of at least A-, financial
size category, Class VI as set forth in Best's Key Rating Guide, published by
A.M. Best Company, Inc., and in such amounts as such insurance is usually
carried by similar businesses, and in any event, in compliance with the
requirements of Section 6.03. If the rating of any insurance company or
association is or becomes below the aforesaid minimum requirements, then
Borrower and its Subsidiaries shall have 45 days to secure (i) an appropriate
reinsurance or other endorsement which will satisfy the aforesaid minimum
standards, or (ii) secure replacement insurance coverage satisfying the
aforesaid minimum standards.
All representations and warranties in each Loan Document shall survive the
delivery of the Notes and shall continue for 366 days after the repayment of the
Notes; any investigation at any time made by or on behalf of the Agent or any
Bank shall not diminish any Bank's right to rely thereon.
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, the Borrower covenants and agrees that:
SECTION VI.1. Reporting and Notice Requirements. The Borrower will furnish to
each Bank, with respect to items described in Subsections (a), (b), (c) and (f),
and to the Agent for delivery to the Banks, with respect to all other items:
(a) Quarterly Financial Statements. As soon as available and in any
event within forty-five (45) days after the end of each fiscal quarter of the
Borrower (excluding the fourth quarter), Financial Statements of the Borrower
and its Subsidiaries as of the end of such quarter.
(b) Annual Financial Statements. As soon as available and in any event
within ninety (90) days after the end of each fiscal year of the Borrower,
Financial Statements of the Borrower and its Subsidiaries for such fiscal year.
(c) Compliance Certificate. Together with and at the time of the delivery of
any information required by Subsection (a) and Subsection (b) of this Section
6.01, a certificate (a "Compliance Certificate") substantially in the form of
Exhibit 6.01(c), attached hereto, signed by a Responsible Officer, (i) stating
that there exists no Event of Default or Default, or if any Event of Default or
Default exists, specifying the nature thereof, the period of existence thereof,
and what action the Borrower proposes to take with respect thereto; (ii) setting
forth the credit rating assigned to the Borrower's senior-unsecured, long-term
debt by S&P as of the date of the Compliance Certificate, and as of the date of
delivery of such Financial Statements; and (iii) setting forth with reasonable
specificity such schedules, computations and other information as may be
required to demonstrate that the Borrower is in compliance with its covenants in
Sections 7.02, 7.03, 7.04, 7.07, 7.10, 7.13, 7.15 and 7.17 hereof.
(d) Notice of Default. Promptly after any Responsible Officer of the
Borrower knows or has reason to know that any Default or Event of Default has
occurred, a written statement of a Responsible Officer of the Borrower setting
forth the details of such Default or Event of Default and the action which the
Borrower has taken or proposes to take with respect thereto.
(e) Notice of Litigation. Together with and at the time of the delivery
of information required by Subsection (a) or (b), notice of any litigation,
legal, administrative, or arbitral proceeding, investigation, or other action of
any nature which involves a claim (or a series of related claims in the
aggregate) for an amount equal to or exceeding $5,000,000, or, promptly after
any Responsible Officer of the Borrower or any Subsidiary obtaining knowledge of
the commencement thereof, notice of any litigation, legal, administrative or
arbitral proceeding, investigation or other action of any nature which involves
the reasonable possibility, if adversely determined, in the judgment of the
Borrower, of a judgment in excess of $1,000,000 which has not been stayed, or
other liability, in each case which could have a material adverse effect on the
business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or on the ability of the Borrower or any
Subsidiary to perform its obligations under this Agreement or any other Loan
Document to which it is a party, and upon request by the Agent or any Bank,
details regarding such litigation which are satisfactory to the Agent or such
Bank.
(f) Securities Filings. Promptly after the sending or filing thereof and in
any event within fifteen (15) days thereof, copies of all reports which the
Borrower sends to any of its security holders, and copies of all reports
(including each regular and periodic report, but without duplication of
Financial Statements provided in accordance with Sections 6.01 (a) and (b)) and
each registration statement or prospectus which the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any national securities
exchange.
(g) ERISA Notices. The Borrower will and will cause its ERISA Affiliates to
obtain and deliver to the Agent, as soon as possible and in any event within 10
days from receipt, or if applicable, filing, copies of any reports, notices or
filings which the Borrower or an ERISA Affiliate files with the Internal Revenue
Service, PBGC or the United States Department of Labor with respect to an ERISA
Event or which the Borrower or an ERISA Affiliate receives from such
Governmental Authority relating to an ERISA Event, and copies of any notice,
complaint or other documentation of any pending or threatened lawsuit or claim
relating to any Plan or Multiemployer Plan which may have a material adverse
effect on the Borrower or an ERISA Affiliate, taken as a whole.
(h) Rating Certificate. Promptly upon the Borrower's knowledge of or
notification (i) by S&P or Moody's that the credit rating assigned to
senior-unsecured, long-term debt of the Borrower by S&P or Moody's, as the case
may be, has changed from the rating set forth in the most recent Compliance
Certificate delivered in accordance with Section 6.01(c), or (ii) by any other
nationally recognized rating agency that the Borrower's senior unsecured,
long-term debt has been assigned a credit rating, or that subsequent to such
assignment, such credit rating has been changed, the Borrower will notify the
Agent in writing of the occurrence of such event, and if a notice has been
received by the Borrower from S&P, Moody's or such other rating agency, shall
provide to the Agent a copy of such notice (each such notice provided hereunder,
a "Rating Certificate").
(i) Other Information. Such other information respecting the condition
or operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Bank through the Agent may from time to time reasonably
request.
SECTION VI.2. Maintenance. The Borrower will, and will cause each of its
Subsidiaries to, (a) at all times do or cause to be done all things necessary to
maintain, preserve and renew its existence as a real estate investment trust
under the Act or its corporate existence, as the case may be, and its rights and
franchises, and comply with all governmental laws, rules, regulations or rulings
with respect thereto; provided, however, that nothing contained in this Section
6.02 or any other provision of this Agreement shall (i) require the Borrower or
any of its Subsidiaries to comply with any such governmental laws, rules,
regulations or rulings, so long as the validity or applicability thereof shall
be contested in good faith by appropriate proceedings and any such failure to
comply could not reasonably be anticipated to have a material adverse effect on
the business, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole on a consolidated basis, or the ability of the
Borrower or such Subsidiary to perform its obligations under this Agreement or
any other Loan Document; or (ii) require the Borrower or any of its Subsidiaries
to maintain, preserve or renew any right or franchise not necessary or desirable
in the conduct of its business as determined in good faith by Borrower's Trust
Managers or Board of Directors, as the case may be, and (b) except for planned
demolition of Real Property or Property subject to a direct financing lease (as
reflected on the Financial Statements), for the purpose of increasing its
ultimate value, at all times maintain, preserve, protect and keep or cause to be
maintained, preserved, protected and kept its Property in good repair, working
order and condition (ordinary wear and tear excepted) and, from time to time,
will make or cause to be made all repairs, renewals, replacements, extensions,
additions, betterments and improvements to its Property as are appropriate, so
that (i) each of the Borrower and its Subsidiaries maintains its current line of
business and (ii) the business carried on in connection therewith may be
conducted properly and efficiently at all times.
SECTION VI.3. Insurance. The Borrower will, and will cause each of its
Subsidiaries to, keep its Property insured against loss or damage by fire and
other hazards with extended coverage and as is otherwise usually carried by
companies of established reputation engaged in the same or similar business
which are similarly situated, and in such amounts as such insurance is usually
carried by such similar businesses. Such policy or policies shall be
satisfactory in form and substance to the Banks, with the premiums thereon fully
paid in advance, issued by and binding upon financially sound and reputable
insurance companies and associations acceptable to the Agent, with a rating of
at least A-, financial size category, Class VI as set forth in Best's Key Rating
Guide, published by A.M. Best Company, Inc., and providing for at least fifteen
(15) days written notice to the Agent of cancellation, failure to renew or other
material change in such policy or policies. If the rating of any insurance
company or association is or becomes below the aforesaid minimum requirements,
then Borrower and its Subsidiaries shall have 45 days to secure (i) an
appropriate reinsurance or other endorsement which will satisfy the aforesaid
minimum standards, or (ii) secure replacement insurance coverage satisfying the
aforesaid minimum standards.
SECTION VI.4. Taxes and Other Claims. The Borrower will, and will cause
each of its Subsidiaries to, duly pay and discharge, as the same become due and
payable, all of its taxes (including without limitation all federal and state
income taxes, ad valorem taxes, sales taxes, use taxes, occupational taxes,
franchise taxes, withholding taxes, severance taxes, excise taxes and
manufacturing taxes) and assessments, and all claims and charges of any
Governmental Authority or any other Person levied or imposed, or which if unpaid
might become a Lien or charge, upon the franchises, assets, earnings or
businesses of the Borrower or any of its Subsidiaries, as the case may be;
provided, however, that nothing contained in this Section 6.04 shall require the
Borrower or any of its Subsidiaries to pay any such tax, assessment, charge or
claim so long as the validity thereof shall be contested in good faith by
appropriate proceedings and the Borrower or any such Subsidiary shall set aside
on its books adequate reserves with respect thereto if required by GAAP.
SECTION VI.5. Rights of Inspection. From time to time upon reasonable notice to
the Borrower, the Borrower will, and will cause each Subsidiary to, permit any
officer, or employee of, or agent designated by, the Agent or any Bank to visit
and inspect any of the Properties of the Borrower or any Subsidiary, examine the
Borrower's or such Subsidiary's corporate books or financial records, take
copies and extracts therefrom, and discuss the affairs, finances, and accounts
of the Borrower or any Subsidiary with the Borrower's or such Subsidiary's
officers or certified public accountants, all as often as the Agent or any Bank
may reasonably desire.
SECTION VI.6. Guarantees of Subsidiaries. In the event that the Borrower shall
at any time acquire or create a new Subsidiary all of the stock of which is 100%
owned by the Borrower, the Borrower shall immediately cause such Subsidiary to
provide to the Agent for the benefit of the Banks a guaranty of the obligations
of the Borrower under this Agreement which shall be in the form attached hereto
as Exhibit 1.01-A; provided that, it shall not constitute a Default hereunder if
such new Subsidiary does not provide such Guaranty Agreement until the date
required for delivery of the Compliance Certificate in accordance with Section
6.01(c); and provided further compliance of the Borrower with the provisions of
this Section 6.06 are hereby waived with respect to the requirements (i) of a
guaranty to be executed by Central Plaza for the period from the Effective Date
and the date on which the Morgan Loan (Series 1995) is paid in full; and (ii) of
a guaranty to be executed by Bell Plaza for the period from the Effective Date
and the date on which the Morgan Loan (Series 1996) is paid in full. It is
agreed and understood that the obligation of the Borrower under this Section
6.06 to cause any such Subsidiary to provide to the Agent for the benefit of the
Banks a guaranty is a condition precedent to the making of the Advances pursuant
to this Agreement and that the entry into this Agreement by the Banks
constitutes good and adequate consideration for the provision of such guaranty.
SECTION VI.7. Compliance with Law. The Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with all laws, rules,
regulations and rulings of all Govemmental Authority having jurisdiction in
respect of the conduct of its business and the ownership of its Property.
SECTION VI.8. Delivery of Certain Certificates. The Borrower agrees that to the
extent it was unable to provide certificates required under Section 4.01(e) and
Section 4.01(f) on or before the Closing Date for any Subsidiary, after using
its best efforts to obtain the same, all such certificates shall be provided to
the Agent, on behalf of the Banks, on or before the forty-fifth (45th) day after
the Closing Date.
SECTION VI.9. Payment of Net Income of Central Plaza to the Borrower.
Notwithstanding anything herein to the contrary, the Borrower shall cause
WRI/Central Plaza, Inc., a Texas corporation and a wholly-owned Subsidiary of
the Borrower ("Central Plaza"), to dividend or otherwise transfer all net income
of Central Plaza to the Borrower to the extent not prohibited under the
documents as in effect on March 6, 1998 evidencing, securing, guaranteeing or
otherwise related to the mortgage loan assumed by Central Plaza in connection
with the acquisition of the shopping center (the "Central Plaza Shopping
Center") located at the intersection of Slide Road and Loop 259 in Lubbock,
Texas, which mortgage loan was in the original principal amount of $4,200,000,
is held as part of a collateralized mortgage pool with the current holder being
State Street Bank & Trust as trustee for JP Morgan Commercial Mortgage Finance
Corp. Mortgage Pass-Through Certificates, Series 1995-C1 and matures January 2,
2002 (the "Morgan Loan (Series 1995)").
SECTION VI.10. Payment of Net Income of Bell Plaza to the Borrower.
Notwithstanding anything herein to the contrary, the Borrower shall cause
WRI/Bell Plaza, Inc., a Texas corporation and a wholly-owned Subsidiary of the
Borrower ("Bell Plaza"), to dividend or otherwise transfer all net income of
Bell Plaza to the Borrower to the extent not prohibited under the documents as
in effect on June 14, 1999 evidencing, securing, guaranteeing or otherwise
related to the mortgage loan assumed by Bell Plaza in connection with the
acquisition of the shopping center (the "Bell Plaza Shopping Center") located at
the intersection of 45th and Bell in Amarillo, Texas, which mortgage loan was in
the original principal amount of $3,300,000, is held as part of a collateralized
mortgage pool with the current holder being State Street Bank & Trust as trustee
for JP Morgan Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates, Series 1996-C2 and matures July 1, 2002 (the "Morgan Loan (Series
1996)").
ARTICLE VII
NEGATIVE COVENANTS
So long as any Note shall remain unpaid or any Bank shall have any
Commitment hereunder, the Borrower covenants and agrees that:
SECTION VII.1. Liens, Etc. The Borrower will not grant, permit, create or suffer
to exist, and will not permit any Subsidiary to grant, permit create or suffer
to exist, any Lien, upon or with respect to any of its Properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, in each case to secure or provide for the
payment of any Debt of any Person, other than:
(a) Permitted Liens; or
(b) Liens which do not violate the covenants contained in Section 7.02(b)
hereof.
SECTION VII.2. Limitation on Incurrence of Debt. (a) The Borrower will not,
and will not permit any Subsidiary to, incur any Debt if prior to incurrence of
such Debt, but after giving effect to the incurrence of such Debt and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Debt of the Borrower and its Subsidiaries is greater than 55% of the
Total Assets, determined as at the last day of the most recent preceding
calendar year or calendar quarter, as the case may be, as reflected in the
Financial Statements of the Borrower most recently provided under Sections 6.01
(a) or (b).
(b) The Borrower will not, and will not permit any Subsidiary to, incur any
Debt secured by any Lien upon any Property of the Borrower or any Subsidiary if,
prior to occurrence of such Debt, but after giving effect to the incurrence of
such Debt and the application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Borrower and its Subsidiaries which is
secured by a Lien on Property of the Borrower or any Subsidiary is greater than
40% of Total Assets, determined as at the last day of the most recent preceding
calendar year or calendar quarter, as the case may be, as reflected in Financial
Statements of the Borrower most recently provided under Sections 6.01 (a) or
(b).
(c) For purposes of this Section 7.02, the term (i) "Total Assets" does not
include securities issued or unconditionally guaranteed by the United States
government or an agency thereof or by the Federal National Mortgage Association
which secure a repurchase agreement with a financial institution, entered into
in the ordinary course of business by the Borrower or any Subsidiary, and (ii)
"Debt" does not include obligations under any such repurchase agreement or
indebtedness of the Borrower or any Subsidiary owed to a financial institution,
which is secured by governmental securities described in clause (i) hereof,
owned by the Borrower or such Subsidiary, entered into in the ordinary course of
business (a Areverse repurchase agreement") provided that in the case of
transactions described in clauses (i) and (ii) hereof, the market value of such
governmental securities is at all times equal at least to the principal amount
of such repurchase agreement or reverse repurchase agreement.
SECTION VII.3. Unimproved Real Property. The Borrower will not permit Unimproved
Real Property to exceed 12.5% of Undepreciated Real Estate Assets.
SECTION VII.4. Sale or Other Disposition of Real Property. The Borrower will not
and will not permit its Subsidiaries to, sell, dispose of or otherwise transfer
(including, without limitation, a sale-leaseback) (a) Real Property of the
Borrower or any Subsidiary with an aggregate book value in any twelve-month
period, ending on the last day of the month in which such disposition occurs (or
if shorter, for the period from the Closing Date to such day), for all such
dispositions (after giving effect to such disposition), greater than 10% of the
Undepreciated Real Estate Assets as of the last day of the preceding calendar
quarter, or (b) Real Property of the Borrower or any Subsidiary with a
cumulative aggregate book value in any thirty-six month period, ending on the
last day of the month in which such disposition occurs (or if shorter, for the
period from the Closing Date to such day), for all such dispositions (after
giving effect to such disposition) greater than 15% of the Undepreciated Real
Estate Assets as of the last day of the preceding calendar quarter, unless, on
the date on which the next Compliance Certificate is required to be delivered in
accordance with Section 6.01(c), the Borrower shall have delivered to the Agent
the excess of Net Proceeds of such disposition over such applicable percentage
amounts of the Undepreciated Real Estate Assets, respectively (herein referred
to as the "Adjusted Net Proceeds") as a prepayment on the Notes, in accordance
with Section 3.03. For purposes of this Section 7.04, neither a lease of
property (nor the existence of a financing lease) nor creation of a Lien on such
property in the ordinary course of business, shall be deemed to be a disposition
of such property.
SECTION VII.5. Mergers: Consolidation. Except as permitted under Section
7.06(f), the Borrower will not, and will not permit any Subsidiary to, merge or
consolidate with or into any other Person, or convey, transfer or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired);
provided that (a) subject to the limitations of Section 7.06(f), the Borrower
may merge or consolidate with or into, or acquire all or substantially all of
the assets or capital stock of any other Person, so long as the Borrower is the
survivor thereof, and (b) any Subsidiary may merge or consolidate with or into,
or acquire all or substantially all of the assets or capital stock of, (i) any
other Subsidiary, so long as, if either such Subsidiary is a Guarantor, a
Guarantor is the survivor thereof, and (ii) subject to the limitations of
Section 7.06(f), any other Person (other than the Borrower), so long as a
Subsidiary is the survivor thereof, and (c) any Subsidiary may merge into or
transfer all or substantially all of its assets to the Borrower, so long as the
Borrower is the survivor thereof, if prior to and after giving effect thereto,
in the case of clauses (a), (b) and (c) no Default or Event of Default has
occurred or would exist (expressly including, without limitation, under Section
7.06(f)).
SECTION VII.6. Investments, Loans, and Advances. Without the consent of the
Banks, the Borrower will not, and will not permit any Subsidiary to, make or
permit to remain outstanding any Investment, endorse, or otherwise be or become
contingently liable, directly or indirectly, in connection with the stock or
other securities of, or purchase, or acquire any stock or securities of, or any
other interest in, any Person, except that:
(a) the Borrower or any Subsidiary may permit to remain outstanding
Investments existing on the date hereof;
(b) the Borrower or any Subsidiary may acquire and own capital stock,
obligations, or securities received in settlement of debts (created in the
ordinary course of business) owing to the Borrower or any Subsidiary;
(c) the Borrower or any Subsidiary may own, purchase, or acquire Cash
Equivalents;
(d) the Borrower and any Subsidiary may make intercompany loans and advances
which are permitted under Section 7.08 hereof, and (subject to Section 6.06) may
form Subsidiaries, the capital stock of which is 100% owned by the Borrower or a
Guarantor;
(e) the transactions permitted under Subsection (a), (b) and (c) of Section
7.05 are permissible;
(f) the Borrower or any Subsidiary may (i) acquire the capital stock of
a Person without the consent of the Banks, so long as (A) the aggregate purchase
price, or cost, of such stock received in exchange for Capital Shares or any
asset of the Borrower or a Subsidiary (measured by the value of such Capital
Shares or asset of the Borrower or such Subsidiary given in exchange therefor)
does not exceed in the aggregate for any successive twelve (12) month period for
all such transactions (or series of related transactions) an amount equal to
one-third (33 1/3%) of Total Assets, determined as of the last day of the
preceding calendar quarter, or (B) if all or a part of such purchase price is
paid in cash, the cash portion of the purchase price does not exceed, in the
aggregate for any successive twelve (12) month period for all such transactions
(or series of related tramctions) an amount equal to ten percent (10%) of the
Total Assets, determined as of the last day of the preceding calendar quarter,
and (ii) acquire other Investments, (in addition to Investments permitted under
subsections (a) through (e), or (f)(i), or (g), of this Section 7.06) so long as
the aggregate purchase price, or cost, of such acquisition (measured by the
value of such Capital Shares or any assets or promissory note of the Borrower or
such Subsidiary, if any, given in exchange therefor, plus the cash portion
thereof) does not exceed in the aggregate for any successive twelve (12) month
period for all such transactions (or series of related transactions) an amount
equal to ten percent (10%) of Total Assets, determined as of the last day of the
preceding calendar quarter, and in the case of each of clause (i) or (ii), (w)
such action does not result in the income of the Borrower being primarily
attributable to loans secured by mortgages on Real Property, (x) if the
acquisition results in ownership by the Borrower or any Subsidiary (whether
beneficial or of record) of a majority of the voting stock of such Person or
results in a merger or consolidation with the Borrower or such Subsidiary, then
the board of directors of such Person shall have approved such transaction and
such transaction shall not constitute a Ahostile" acquisition with respect to
such Person, (y) (except for Investments described under clause (ii) hereof) the
business of such Person is substantially similar to the business conducted by
the Borrower or such Subsidiary, or is primarily to hold Real Property, and such
purchase or acquisition is made in the ordinary course of business, and (z) in
any event, prior to and after giving effect to such purchase or dequisition, no
Default or Event of Default has occurred or would exist; and
(g) the Borrower and any Subsidiary may purchase or acquire directly or
indirectly, through partnerships, joint ventures or otherwise, title to Real
Property (expressly including, for purposes of this Section 7.06, without
limitation, Adirect financing leases," reflected as such on the Financial
Statements).
SECTION VII.7. Coverage Ratios. (a) The Borrower will not permit the
ratio of (i) Funds From Operations, to (ii) the Annual Service Charge,
determined as of the last day of each fiscal quarter for the four (4) successive
quarterly accounting periods ending on such date (the "nnual Service Charge
Coverage Ratio") to be less than 2.5 to 1.0.
(b) The Borrower will not permit the ratio of (i) Funds From Operations, to
(ii) the Fixed Charge, determined as of the last day of each fiscal quarter for
the four (4) successive quarterly accounting periods ending on such date (the
"Fixed Charge Coverage Ratio") to be less than 2.0 to 1.0.
SECTION VII.8. Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, enter into any
transaction, or modify any existing transaction, with any Affiliate (including,
without limitation, any transaction involving the payment of management fees or
directors' fees to any Affiliate), except for transactions (including any loans
or advances by or to any Affiliate otherwise in compliance under this Agreement)
in good faith, the terms of which are fair and reasonable to the Borrower or
such Subsidiary, and are at least as favorable as the terms which could be
obtained by the Borrower or such Subsidiary in a comparable transaction made on
an arm's-length basis between unaffiliated parties.
SECTION VII.9. Change of Business. The Borrower will not, and will not permit
any Subsidiary to, make any material change in the nature of the business
conducted by the Borrower and its Subsidiaries taken as a whole and will at all
times qualify for taxation as a Real Estate Investment Trust under the Code.
SECTION VII.10. Minimum Adjusted Tangible Net Worth. The Borrower shall not
permit the Minimum Adjusted Tangible Net Worth to be less than $850,000,000.
SECTION VII.11. Amendment of Organizational Documents. The Borrower will not,
and will not permit any of its Subsidiaries to, without the prior written
consent of the Banks, amend, alter or modify its Organizational Documents or
articles of incorporation or other charter'or bylaws, as the case may be, in
such a manner as to (a) change its purpose or (b) restrict its powers in any
manner.
SECTION VII.12. Guarantees. "Guaranty" shall mean all obligations not otherwise
reflected on the balance sheet of the Borrower or any Subsidiary whereby the
Borrower or such Subsidiary guarantees the performance of any joint venture or
partnership or the payment or performance of any indebtedness, dividend or other
obligation of any other Person (for purposes of this Section 7.12, the "Primary
Obligor") in any manner, whether directly or indirectly, including obligations
incurred through an agreement or covenant, contingent or otherwise:
(i) to purchase such indebtedness or obligation or any Property or
assets constituting security therefor,
(ii) to advance or supply funds
(A) for the purchase or payment of such indebtedness or obligation, or
(B) to maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or payment of such
indebtedness or obligation;
(iii) to lease Property or to purchase securities or other Property or
services primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of the Primary Obligor to make payment of the
indebtedness or obligation;
(iv) to assure the owner of the indebtedness or obligation of the
Primary Obligor against loss in respect thereof; or
(v) in connection with the creation of a trust or other existing fund
for the purpose of securitizing assets of the Borrower or any Subsidiary.
Notwithstanding the above, and in any event, except for (i) Guaranties by the
Borrower of indebtedness or obligations of any Subsidiary, or (ii) Guaranties of
any Subsidiary of indebtedness or obligations of the Borrower, or (iii) the
Guaranty by the Borrower of the obligations of the Dugas Partnership in
Commendam in respect of the Series 1995 Lafayette Bonds and the special letter
of credit issued in connection therewith, neither the Borrower nor any
Subsidiary shall enter into any Guaranty (other than checks deposited and/or
endorsed in the ordinary course of business of the Borrower or any Subsidiary)
unless (A) liability incurred by the Borrower or such Subsidiary under such
Guaranty is secured and is for a Primary Obligor's indebtedness or other
obligation, and (B) upon payment by the Borrower or such Subsidiary on account
of (or in connection with) its obligations under the Guaranty or, after
compliance with applicable foreclosure proceedings specified by law or otherwise
agreed upon, the Borrower or such Subsidiary will become subrogated to the
right, title and interests of the beneficiary of the Guaranty or of the Primary
Obligor, to all Property securing such liability. By way of illustration, but
not limitation: (x) in the case of a Guaranty of the obligations of a venturer
or partner, the Guaranty shall be deemed secured if the Borrower or such
Subsidiary is entitled (after compliance with applicable foreclosure proceedings
specified by law or otherwise agreed upon) to such defaulting party's venture or
partnership interest in case of a default of such venturer or partner; (y) in
the case of the Guaranty of a lease, the Guaranty shall be deemed secured if the
Borrower or such Subsidiary is entitled (after compliance with applicable
foreclosure proceedings specified by law or otherwise agreed upon) to the
leasehold estate in case of default by the tenant under such lease; and (z) in
the case of the Guaranty of a secured promissory note, a Guaranty shall be
deemed secured if the Borrower or such Subsidiary is entitled to purchase the
note and the lien securing same, and to become subrogated to the rights of the
previous payee on the Note in the case of default of the maker on such default.
SECTION VII.13. Assets Retained. The Borrower will not permit the portion
of Undepreciated Real Estate Assets which is subject to no Lien (other than a
Permitted Lien) to be less than 150% of the aggregate principal amount
outstanding at any time of Debt which is not secured by a Lien on Property of
the Borrower or any Subsidiary.
SECTION VII.14. Transfer of Assets to Central Plaza. Notwithstanding anything
herein to the contrary, the Borrower shall not transfer or convey any of its
assets or make any capital contributions, loans or other distributions to
Central Plaza, except (i) the capital contribution in the approximate amount of
$4,500,000 made by the Borrower to Central Plaza in connection with the
acquisition of the Central Plaza Shopping Center and (ii) loans or advances to
Central Plaza not to exceed $500,000 at any one time outstanding.
SECTION VII.15. Limitations on Central Plaza's Incurrence of Debt.
Notwithstanding anything herein to the contrary, the Borrower shall not permit
Central Plaza to incur any Debt (secured or unsecured) other than (i) the Morgan
Loan (Series 1995); (ii) trade and operational Debt incurred in the ordinary
course of business with trade creditors, in amounts as are normal and customary
and (iii) loans from the Borrower; provided that the Debt permitted under
clauses (ii) and (iii) shall not exceed an aggregate amount of $500,000.
SECTION VII.16. Transfer of Assets to Bell Plaza. Notwithstanding anything
herein to the contrary, the Borrower shall not transfer or convey any of its
assets or make any capital contributions, loans or other distributions to Bell
Plaza, except (i) the capital contribution in the approximate amount of
$3,350,000 made by the Borrower to Bell Plaza in connection with the acquisition
of the Bell Plaza Shopping Center and (ii) loans or advances to Bell Plaza not
to exceed $1,200,000 at any one time outstanding.
SECTION VII.17. Limitations on Bell Plaza's Incurrence of Debt. Notwithstanding
anything herein to the contrary, the Borrower shall not permit Bell Plaza to
incur any Debt (secured or unsecured) other than (i) the Morgan Loan (Series
1996), (ii) trade and operational Debt incurred in the ordinary course of
business with trade creditors, in amounts as are normal and customary and (iii)
loans from the Borrower; provided that the Debt permitted under clauses (ii) and
(iii) shall not exceed an aggregate amount of $1,200,000.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. Events of Default. If any of the following events ("Events
of Default") shall occur:
(a The Borrower shall fail to pay principal of or interest on any Note
or fees or other amounts due under any Note or this Agreement when the same
becomes due and payable; or
(b Any representation or warranty made by the Borrower (or any of its
Responsible Officers) under or in connection with any Loan Document shall prove
to have been incorrect in any material respect when made or deemed made; or
(c The Borrower shall fail to perform or observe any term, covenant or
agreement contained in Sections 6.01 (d), 6.06 or in Article VII; or
(d The Borrower shall fail to perform or observe any term, covenant or
agreement contained in any Loan Document (other than those set forth in (a), (b)
and (c) above) on its part to be performed or observed if such failure shall
remain unremedied for thirty (30) days after the occurrence of such event; or
(e The Borrower shall fail to pay any principal of or premium or interest on
any Debt (other than Non-Recourse Debt) which is outstanding in a principal
amount greater thari $10,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise); or any other event constituting a default (however
defined) shall occur or condition shall exist under any agreement or instrument
relating to any such Debt outstanding in a principal amount greater than
$10,000,000 (other than Non-Recourse Debt) and shall continue after the
applicable grace period, if any, specified in such agreement or instrument; or
(f The Borrower or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any Debtor Laws, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its Property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its Property) shall occur; or
the Borrower or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g Any final judgment or order for the payment of money which, individually
or the aggregate, shall be in excess of $1,000,000 at any time, shall be
rendered against the Borrower or any of its Subsidiaries and remains unpaid for
a period of 15 days, and a stay of execution thereof (whether by supersedeas
bond or otherwise) shall not be in effect after entry thereof; or
(h With respect to any Plan, Multiemployer Plan or any other employee
benefit plan within the meaning of Section 3(3) of ERISA, the Borrower or any
ERISA Affiliate has incurred and fails to pay (or fund, as applicable) within
the maximum time period permitted by law, a liability in excess of $10,000,000;
or
(i An Event of Default (however defined) in any interest rate swap
agreement, or any other interest rate protection agreement to which the Borrower
or any Subsidiary is a party (the "Interest Rate Agreements"), shall have
occurred at any time during which the Agent or any Bank is a counterparty
thereunder; or
(j The Borrower shall be or become, in the reasonable judgment of the Agent
or any Bank, a liquidating trust under the Internal Revenue Code of 1986, as
amended;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower, declare the
Commitment of each Bank to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Majority Banks by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided however, that in the event of an entry of an order for relief
with respect to the Borrower or any of its Subsidiaries under the United States
Bankruptcy Code, (A) the obligation of each Bank to make Advances shall
automatically be terminated and (B) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE IX
THE AGENT
SECTION IX.1. Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Banks, and such
instructions shall be binding upon all Banks and all holders of Notes; provided
however, that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to this Agreement or
applicable law. The Agent agrees to give to each Bank prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION IX.2. Agent's Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without limitation of
the generality of the foregoing, the Agent: (i) may, subject to the provisions
of Section 10.08 hereof, treat the payee of any Note as the holder thereof until
the Agent receives written notice of the assignment or transfer thereof signed
by such payee and including the agreement of the assignee or transferee to be
bound hereby as it would have been if it had been an original Bank party hereto,
in form satisfactory to the Agent; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Bank for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document ftirnished
pursuant hereto; and (vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION IX.3. BOA and Affiliates. With respect to its Commitment, the
Advances made by it and the Note issued to it, BOA shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include BOA in its individual capacity. BOA and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if BOA were not the
Agent and without any duty to account therefor to the Banks.
SECTION IX.4. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the financial statements referred to in Sections 5.02 and 6.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank also acknowledges
that it will, independently and without reliance upon the Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under each Loan Document. The Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower of any Loan
Document or to inspect the Properties or books of the Borrower or any
Subsidiary. Except for notices, reports, and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition, or
business of the Borrower or any Subsidiary (or any of their Affiliates) which
may come into the possession of the Agent or any of its Affiliates.
SECTION IX.5. Indemnification. Notwithstanding anything to the contrary
herein contained, the Agent shall be fully justified in failing or refusing to
take any action hereunder unless it shall first be indemnified to its
satisfaction by the Banks against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in any way relating to or arising out of its
taking or continuing to take any action. EACH BANK AGREES TO INDEMNUY THE AGENT
(TO THE EXTENT NOT REIMBURSED BY THE BORROWER), ACCORDING TO SUCH BANK'S PRO
RATA PERCENTAGE, FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS
OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR
ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING OUT OF ANY LOAN
DOCUMENT OR ANY ACTION TAKEN OR OMITTED BY THE AGENT UNDER ANY LOAN DOCUMENT IN
ITS CAPACITY AS AGENT, PROVIDED THAT NO BANK SHALL BE LIABLE FOR ANY PORTION OF
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES, OR DISBURSEMENTS RESULTING FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE PERSON BEING INDEMNIFIED; AND PROVIDED FURTHER, THAT
IT IS THE INTENTION OF EACH BANK TO INDEMNIFY THE AGENT AGAINST THE CONSEQUENCES
OF THE AGENT'S OWN NEGLIGENCE WHEN ACTING IN ITS CAPACITY AS AGENT, WHETHER SUCH
NEGLIGENCE BE SOLE, JOINT, OR CONCURRENT, ACTIVE OR PASSIVE. WITHOUT LIMITATION
OF THE FOREGOING, EACH BANK AGREES TO REIMBURSE THE AGENT, PROMPTLY UPON DEMAND
FOR ITS PRO RATA PERCENTAGE OF ANY OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE
ATTORNEYS'FEES) INCURRED BY THE AGENT IN ITS CAPACITY AS AGENT IN CONNECTION
WITH THE PREPARATION, ADMINISTRATION, OR ENFORCEMENT OF, OR LEGAL ADVICE IN
RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, ANY LOAN DOCUMENT, TO THE EXTENT
THAT THE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY THE BORROWER.
SECTION IX.6. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Banks and the Borrower and may be removed at any
time with cause by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Banks, and shall
have accepted such appointment, within thirty (30) days after the retiring
Agent's giving of notice of resignation or the Majority Banks' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having capital of at
least $100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION IX.7. Agent's Reliance. The Borrower shall notify the Agent in writing
of the names of its officers and employees authorized to request an Advance on
behalf of the Borrower and shall provide the Agent with a specimen signature of
each such officer or employee. The Agent shall be entitled to rely conclusively
on such officer's or employee's authority to request an Advance on behalf of the
Borrower until the Agent receives written notice from the Borrower to the
contrary. The Agent shall have no duty to verify the authenticity of the
signature appearing on any Notice of Borrowing, and, with respect to any oral
request for an Advance, the Agent shall have no duty to verify the identity of
any Person representing himself as one of the officers or employees authorized
to make such request on behalf of the Borrower. Neither the Agent nor any Bank
shall incur any liability to the Borrower in acting upon any telephonic notice
referred to above which the Agent or such Bank believes in good faith to have
been given by a duly authorized officer or other Person authorized to borrow on
behalf of the Borrower or for otherwise acting in good faith.
SECTION IX.8. Defaults. The Agent shall not be deemed to have knowledge of
the occurrence of a Default (other than the nonpayment of principal of or
interest hereunder or of any fees payable hereunder) unless the Agent has
received notice from a Bank or the Borrower specifying such Default. In the
event that the Agent receives such a notice of the occurrence of a Default, the
Agent shall give prompt notice thereof to the Banks and to the Borrower (and
shall give each Bank prompt notice of each such nonpayment); provided that,
failure of the Agent to give notice to the Borrower hereunder shall in no event
diminish the obligations of the Borrower hereunder. The Agent shall (subject to
Section 8.01 and 9.01) take such action as may be expressly required hereunder
with respect to such Default; provided that, unless and until the Agent shall
have received the directions referred to in Section 8.01, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default as it shall deem advisable and in the best interest
of the Banks.
ARTICLE X
MISCELLANEOUS
SECTION X.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Majority Banks, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Banks, do any of the following:
(a) waive any of the conditions specified in Section 4.02, (b) increase the
Commitments of the Banks or subject the Banks to any additional obligations, (c)
reduce the principal of, or interest on, the Notes, (d) postpone any date fixed
for any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, (e) change the definition of "Pro Rata Percentage,"
the percentage of the Commitments or the aggregate unpaid principal amount of
the Notes, or the number or percentage of Banks, which shall be required for the
Banks or any of them to take any action hereunder, (f) amend this Section 10.01,
(g) alter any Guaranty Agreement or Section 6.06 hereof, or (h) amend Article
VII hereof, and provided, further, that no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Banks required
above to take such action, affect the rights or duties of the Agent under this
Agreement or any Note.
SECTION X.2. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including by telex or telefacsimile
transmission) and shall be effective when actually delivered, or in the case of
telex notice, when sent, and answerback is received, or in the case of
telefacsimile transmission, when received and telephonically confirmed,
addressed as follows: if to the Borrower, at its address at 2600 Citadel Plaza
Drive, Houston, Texas 77018, Attention: Chief Executive Officer, with a copy to
Dow, Cogbum & Friedman, P.C., 9 Greenway Plaza, Suite 2300, Houston, Texas
77046, Attention: Mr. Melvin Dow; if to any Bank, at its address specified
opposite its name on the signature page hereof; and if to the Agent, at its
address at 700 Louisiana, 5th Floor, Houston, Texas 77002, Attention: Cynthia C.
Sanford; with a copy to 901 Main Street, 51st Floor, Dallas, Texas 75202,
Attention: Joone Choe; or as to the Borrower, any Bank or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties.
SECTION X.3. No Waiver; Remedies. No failure on the part of any Bank or the
Agent to exercise, and no delay in exercising, any right under any Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION X.4. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses in connection with the preparation, execution,
delivery, modification, waiver, and amendment of the Loan Documents and the
other documents to be delivered under the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent and each Bank with respect thereto and with respect to advising the Agent
and each Bank as to its rights and responsibilities under the Loan Documents;
provided that, fees of counsel for the Agent and the Banks for work performed in
connection with the preparation, execution and delivery of this Agreement and
the other Loan Documents on the Closing Date and all other work described in
this sentence performed on or prior to the Closing Date (together with routine
post-closing matters, such as preparation and delivery of closing packages),
shall not exceed $25,000.00, plus expenses of such counsel incurred in
connection therewith. In the event of the occurrence of a Default, the Borrower
further agrees to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of the Loan Documents and the other documents to be delivered under the Loan
Documents, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 10.04.
SECTION X.5. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 8.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 8.01,
each Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under any Loan Document, whether or not such Bank shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Bank agrees promptly to notify the Borrower after any
such set-off and application made by such Bank, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Bank may have.
SECTION X.6. Sharing of Payments, Etc. If any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of any Advance made by it (other than pursuant to
Sections 2.07, 2.10, 3.04 or 3.05) in excess of its Pro Rata Percentage of
payments on account of the Advances, such Bank shall forthwith purchase from the
other Banks such participations in the Advances made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them, provided however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery together with an amount equal
to such Bank's ratable share (according to the proportion of (i) the amount of
such Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered.
SECTION X.7. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, the Agent and the Banks (and a
counterpart original has been delivered to the Agent, for itself and each Bank,
and to the Borrower) when the Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Bank and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Banks.
SECTION X.8. Assignments and Participations. (a) Each Bank may assign all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments and the Note held by it to any
financial institution (the "ssignee"); provided however, (i) prior to the
occurrence of an Event of Default, BOA shall not assign its rights and
obligations hereunder without the consent of the Borrower, which will not be
unreasonably withheld, if, the assignment is made to an Eligible Assignee and,
after giving effect to such assignment, the Commitment of BOA would not be
reduced to less than $25,000,000, (ii) each assignment made hereunder shall
equal or exceed the lesser of (A) $10,000,000 or (B) the remaining Commitment
held by the assigning Bank, and (iii) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register (with a copy to the Borrower), an Assignment and Acceptance Agreement
in the form of Exhibit 10.08, attached hereto (the "Assignment and Acceptance"),
together with any Note subject to such assignment. Upon such execution,
delivery, acceptance, and recordation by the Agent of such Assignment and
Acceptance, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be the date on which such Assignment and
Acceptance is accepted by the Agent, (A) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Bank under the Loan Documents, and (B) the Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Loan Documents (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of an
assigning Bank's rights and obligations under the Loan Documents, such Bank
shall cease to be a party thereto).
(b By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the Assignee confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency,
or value of any Loan Document or any other instrument or document furnished
pursuant thereto; (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or any other Subsidiary or the performance or observance by the
Borrower or any other Subsidiary of any of its respective obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) such Assignee confirms that it has received a copy of the Loan Documents,
together with copies of the Financial Statements referred to in Section 5.02 and
Section 6.01, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such Assignee, independently and without
reliance upon the Agent such assigning Bank, or any Bank and based on such
documents and information as it shall deem appropriate at the time, will
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such Assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under any Loan
Document as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vi) such Assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of any Loan Document are required to be performed by it as a Bank.
(c The Agent shall maintain at its address referred to in Section 10.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Banks and the
Commitment of, and principal amount of the Borrowings owing to, each Bank from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Agent, and the Banks may treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of the Loan Documents. The
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(d Upon its receipt of an Assignment and Acceptance executed by an assigning
Bank, together with any Note subject to such assignment, the Agent, if such
Assignment and Acceptance has been completed and otherwise complies with Section
10.08(a), shall (i) accept such Assignment and Acceptance; (ii) record the
information contained therein in the Register, and (iii) give prompt notice
thereof to the Borrower. Simultaneously upon its receipt of such notice, the
Borrower at its own expense, shall execute and deliver to the Agent in exchange
for each surrendered Note a new Note to the order of such Assignee in an amount
equal to the Conumitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained Commitments hereunder, new
Notes to the order of the assigning Bank in an amount equal to the Commitments
retained by it hereunder. The new Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit 2.02(c). Upon receipt by the
Agent of each such new Note conforming to the requirements set forth in the
preceding sentences, the Agent shall return to the Borrower each such
surrendered Note marked to show that each such surrendered Note has been
replaced, renewed, and extended by such new Note.
(e Each Bank may sell participations to one or more financial institutions
in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments and the
Notes held by it), and no such sale of a participation shall reduce such Bank's
obligations to the Borrower hereunder.
SECTION X.9. Limitation on Agreements. (a) All agreements between the
Borrower, the Agent, or any Bank, whether now existing or hereafter arising and
whether written or oral, are hereby expressly limited so that in no contingency
or event whatsoever, whether by reason of demand being made in respect of an
amount due under any Loan Document or otherwise, shall the amount paid, or
agreed to be paid, to the Agent or any Bank for the use, forbearance, or
detention of the money to be loaned under this Agreement, the Notes or any other
Loan Document or otherwise or for the payment or performance of any covenant or
obligation contained herein or in any other Loan Document exceed the Highest
Lawful Rate. If, as a result of any circumstance whatsoever, fulfillment of or
compliance with any provision hereof or of any of such documents at the time
performance of such provision shall be due or at, any other time shall involve
exceeding the amount permitted to be contracted for, taken, reserved, charged or
received by the Agent or any Bank under applicable usury law, then, ipso facto,
the obligation to be fulfilled or complied with shall be reduced to the limit
prescribed by such applicable usury law, and if, from any such circumstance, the
Agent or any Bank shall ever receive interest or anything which might be deemed
interest under applicable law which would exceed the Highest Lawful Rate, such
amount which would be excessive interest shall be applied to the reduction of
the principal amount owing on account of such Bank's Note or the amounts owing
on other obligations of the Borrower to the Agent or any Bank under any Loan
Document and not to the payment of interest, or if such excessive, interest
exceeds the unpaid principal balance of any Note and the amounts owing on other
obligations of the Borrower to the Agent or any Bank under any Loan Document, as
the case may be, such excess shall be refunded to the Borrower. All sums paid or
agreed to be paid to the Agent or any Bank for the use, forbearance, or
detention of the indebtedness of the Borrower to the Agent or any Bank 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 of
the principal (including the period of any renewal or extension thereof) so that
the interest on account of such indebtedness shall not exceed the Highest Lawful
Rate. Notwithstanding anything to the contrary contained in any Loan Document,
it is understood and agreed that if at any time the rate of interest which
accrues on the outstanding principal balance of any Note shall exceed the
Highest Lawful Rate, the rate of interest which accrues on the outstanding
principal balance of any Note shall be limited to the Highest Lawful Rate, but
any subsequent reductions in the rate of interest which accrues on the
outstanding principal balance of any Note shall not reduce the rate of interest
which accrues on the outstanding principal balance of any Note below the Highest
Lawful Rate until the total amount of interest accrued on the outstanding
principal balance of any Note equals the amount of interest which would have
accrued if such interest rate had at all times been in effect. The terms and
provisions of this Section 10.09 shall control and supersede every other
provision of all Loan Documents.
(b The Banks and the Borrower agree that (i) if Chapter 303 of the Texas
Finance Code, as amended, is applicable to the determination of the Highest
Lawful Rate, the weekly ceiling computed from time to time pursuant to Section
(a) of such Article shall apply, provided that, to the extent permitted by such
Article, the Agent may from time to time by notice to the Borrower revise the
election of such interest rate ceiling as such ceiling affects the then current
or future balances of the Advances; and (ii) the provisions of Chapter 346 of
the Texas Finance Code, as amended, shall not apply to this Agreement or any
Note.
SECTION X.10. Severability. In case any one or more of the provisions contained
in any Loan Document to which the Borrower is a party or in any instrument
contemplated thereby, or any application thereof, shall be invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions contained therein, and any other application thereof, shall
not in any way be affected or impaired thereby. Each covenant contained in any
Loan Document to which the Borrower is a party shall be construed (absent an
express contrary provision herein) as being independent of each other covenant
contained therein, and compliance with any one covenant shall not (absent such
an express contrary provision) be deemed to excuse compliance with one or more
other covenants.
SECTION X.11. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of Texas.
SECTION X.12. SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY:
(a SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS, THE COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND APPELLATE COURTS FROM
ANY THEREOF;
(b WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT IN HARRIS COUNTY, TEXAS, OR THAT
SUCH PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME;
(c AGREES THAT SERVICE OF PROCESS IN ANY SUCH LEGAL ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING OF A COPY THEREOF (BY REGISTERED OR CERTIFIED MAIL OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL, POSTAGE PREPAID) TO ITS ADDRESS SET FORTH IN
SECTION 10.02 HEREOF OR TO SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO
SHALL HAVE BEEN NOTIFIED IN WRITING BY THE BORROWER PURSUANT TO SECTION 10.02.
SECTION X.13. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION X.14. Liability of Borrower. With respect to the incurrence of certain
liabilities hereunder and the making of certain agreements by the Borrower as
herein stated, such incurrence of liabilities and such agreements shall be
binding upon the Borrower only as a trust formed under the Texas Real Estate
Investment Trust Act pursuant to that certain Restated Declaration of Trust
dated March 23, 1988 (as it is amended from time to time), and only upon the
assets of such Borrower. No Trust Manager or officer or holder of any beneficial
interest in the Borrower shall have any personal liability for the payment of
any indebtedness or other liabilities incurred by the Borrower hereunder or for
the performance of any agreements made by the Borrower hereunder, nor for any
other act, omission or obligation incurred by the Borrower or the Trust Managers
except, in the case of a Trust Manager, any liability arising from his own
willful misfeasance or malfeasance or gross negligence.
SECTION X.15. FINAL AGREEMENT. THIS WRITTEN AGREEMENT, THE GUARANTY, AND
THE NOTES REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[REMAINDER OF PAGE INTENTIONALLY BLANK -
SEE SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
Executed by their respective officers thereunto duly authorized, as of the date
first above written.
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
____________, 2000, is by and among Weingarten Realty Investors, a Texas real
estate investment trust ("Borrower") and Bank of America, N.A., a national
banking association, in its capacities as Agent and a lender ("Bank of
America").
WHEREAS, Borrower and Bank of America have entered into that certain Credit
Agreement dated January 6, 1999 ("Loan Agreement");
WHEREAS, Borrower has requested that Bank of America add a provision to the
Loan Agreement which would grant Borrower an option to renew the Loan Agreement
for a period of two additional years; and
WHEREAS, Bank of America has agreed, subject to the terms and conditions
stated herein, to provide terms for such renewal.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower and Bank
of America hereby covenant and agree as follows:
ARTICLE I - RENEWAL OPTION
1.1 Definitions. Any capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to such term in the Loan Agreement. The
following definitions are applicable to this Amendment and are hereby added to
the Loan Agreement.
(a) "Adjusted EBIDA for Unencumbered Property" means, for any period, Funds
From Operations from all Unencumbered Property less the Capital Improvement
Reserve for such period.
(b) "Capital Expenditures" means expenditures by Borrower or any of its
Subsidiaries for fixed or capital assets, including without limitation
expenditures for maintenance and repairs.
(c) "Capital Improvement Reserve" means, for any period, a reserve for
Capital Expenditures in an amount equal to the product obtained by multiplying
$.30 times the weighted average square feet of all Unencumbered Property owned
by Borrower and its Subsidiaries during such period.
(d) "Extended Revolving Credit Termination Date" means a date two (2) years
after the Revolving Credit Termination Date.
(e) "Facility Fee" is defined in Section 1.2 of this Amendment.
(f) "Renewal Option" is defined in Section 1.2 of this Amendment.
(g) "Renewal Period" means the two year period commencing on the first day
following the Revolving Credit Termination Date and terminating on the Extended
Revolving Credit Termination Date.
(h) "Secured Indebtedness" means Debt of Borrower and its Subsidiaries that
is directly or indirectly secured by a Lien on any Real Property.
(i) "Total Unsecured Debt" means Debt excluding all Secured Indebtedness.
(j) "Unencumbered Property" means all Real Property which is subject to no
Liens other than Permitted Liens.
1.2 Terms of Renewal Option. The Agent and Banks hereby grant to
Borrower the option (the "Renewal Option") to extend the Revolving Credit
Termination Date for an additional two year period on the following terms and
conditions:
(a) At the time of the exercise of such Renewal Option and on the first day
of the Renewal Period, there shall then exist no Default or Event of Default.
(b) Borrower shall submit to Agent such financial statements and other
information as Agent may reasonably request in connection with the proposed
renewal, regarding Borrower and Guarantor. In Agent=s reasonable judgment,
there shall not have occurred a material adverse change in the financial
position of Borrower and Guarantor, taken as a whole, from the date hereof, as
reflected in the then most recent financial and operating statements submitted
to Agent pursuant to the Loan Agreement.
(c) All terms and conditions of the Loan Documents pertaining to the
Revolving Loan shall continue to apply during the Renewal Period except as
modified by this Amendment.
(d) Borrower and Guarantor shall have executed and delivered to Agent a
modification and extension agreement, providing for (i) the extension of the
Revolving Credit Termination Date, (ii) the reaffirmation by each of Borrower
and Guarantor of their respective obligations under the Loan Documents and the
Guaranty Agreement, respectively, and (iii) confirmation by Borrower and
Guarantor that neither Borrower nor Guarantor have any defenses, claims,
counterclaims, or rights of offset in respect of the Obligations.
(e) The request for extension must be made to Agent in writing not more than
one hundred twenty (120) days, and not less than ninety (90) days prior to, the
Revolving Credit Termination Date.
(f) On or before the first day of the Renewal Period, Borrower shall have
paid to Agent as a condition to such renewal all fees required pursuant to that
certain Side Letter Agreement of even date herewith executed by Agent and
Borrower (the "Side Letter Agreement").
(g) Borrower shall be in compliance with the following covenants:
(i) For the twelve (12) month period ending on the last day of the fiscal
quarter ending prior to the Renewal Period and as of the last day of each fiscal
quarter for the four (4) successive quarterly accounting periods ending on such
date during the Renewal Period, Borrower shall not permit the ratio of (i) Total
Unsecured Debt to (ii) Adjusted EBIDA for Unencumbered Property to exceed 6.66
to 1.00.
(ii) As of the first day of the Renewal Period and during the Renewal
Period, Borrower shall not permit the Adjusted Tangible Net Worth to be less
than an amount equal to the sum of (i) $850,000,000, and (ii) eighty percent
(80%) of the net proceeds (i.e. gross proceeds less actual and customary
transaction costs) received by Borrower from all equity offerings made by
Borrower after December 31, 1999.
(iii) Except to the extent required by applicable tax laws or regulations to
maintain its REIT status, during any fiscal year of Borrower during the Renewal
Period, Borrower shall not, nor shall Borrower permit any Subsidiary (other than
to Borrower or another Subsidiary) to, declare or pay any dividends or make any
distributions on its Capital Shares (other than dividends payable in its own
Capital Shares) or redeem, repurchase or otherwise acquire or retire any of its
Capital Shares at any time outstanding, in excess of an amount equal to
ninety-five percent (95%) of the Funds From Operations during such fiscal year.
(h) As of the first day of the Renewal Period and during the Renewal Period,
the definition of "Applicable Margin" in the Loan Agreement shall mean, with
respect to any LIBOR Rate Advance, the rate per annum for any LIBOR Rate Advance
indicated below for the credit rating assigned to (or in respect of) long-term
senior unsecured Debt of Borrower by S&P, as reflected on the most recent
Compliance Certificate of Borrower delivered in accordance with Section 6.01(c),
or the most recent Rating Certificate delivered in accordance with Section
6.01(h), as the case may be:
CREDIT RATING APPLICABLE MARGIN FOR LIBOR RATE ADVANCE
-------------- ---------------------------------------------
A- or better .60%
BBB+ .70%
BBB .90%
BBB- or below 1.20%
(i) During the Renewal Period, Borrower agrees to pay to Agent, a commitment
fee (the "Facility Fee") on the average daily unused portion of the aggregate
Commitment under the Revolving Loan outstanding during the applicable period, at
a rate per annum equal to the rate per annum indicated below for the credit
rating assigned to long-term, senior unsecured Debt of Borrower by S&P, as
reflected on the most recent Compliance Certificate of Borrower delivered in
accordance with Section 6.01(c) of the Loan Agreement, or the most recent Rating
Certificate delivered in accordance with Section 6.01(h), as the case may be.
The Facility Fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the prior calendar quarter commencing on the first day of
the first calendar quarter occurring after commencement of the Renewal Period,
and continuing until the Extended Revolving Credit Termination Date.
CREDIT RATING FACILITY FEE
-------------- -------------
A- or better .15%
BBB+ .20%
BBB .25%
BBB- or below .35%
Agent shall be entitled to allocate the Facility Fee among the Banks as Agent
considers appropriate in its sole discretion.
1.3 Compliance Certificate. As of the first day of the Renewal Period
and during the Renewal Period, together with and at the time of the delivery of
any information required by Section 6.01 (a) and (b) of the Loan Agreement,
Borrower shall deliver to Agent, a Compliance Certificate substantially in the
form of Exhibit A attached hereto.
ARTICLE II - MISCELLANEOUS
2.1 Conditions Precedent. As conditions precedent to closing this
Amendment, Borrower shall have executed, or caused to be executed, and delivered
to Agent (a) this Amendment and (b) the Side Letter Agreement.
2.2 Representations of Borrower. Borrower hereby represents to the
Banks the following:
(a) All of the representations and warranties contained in Article V of the
Loan Agreement are true and correct on and as of the date hereof and will be
true and correct after giving effect to this Amendment.
(b) No event which constitutes a Default or an Event of Default under the
Loan Agreement has occurred and is continuing, or would result from the
execution and delivery of this Amendment.
(c) Borrower has the power and authority under the Governmental Requirements
and the Organizational Documents to execute and deliver this Amendment and to
exercise the Renewal Option if it elects to do so; and the execution, delivery
and performance by Borrower of this Amendment has been duly authorized by all
necessary proceedings on the part of Borrower and each Guarantor.
2.3 Ratification. The Loan Agreement, as hereby amended, is in all respects
ratified and confirmed, and all other rights and powers created thereby or
thereunder shall be and remain in full force and effect.
2.4 Counterparts. This Amendment may be executed in several counterparts,
and each counterpart, when so executed and delivered, shall constitute an
original instrument, and all such separate counterparts shall constitute but one
and the same instrument.
2.5 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
2.6 PRIOR AGREEMENTS. THE LOAN AGREEMENT, THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE
TEXAS BUSINESS & COMMERCE CODE, AND REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
1. Borrower certifies that the credit rating assigned to the Borrower=s
senior-unsecured, long-term debt by S&P as of the date of this Compliance
Certificate, and as of the date of delivery of its Financial Statements is
_______________.
2. Financial Covenants
Limit Actual In Compliance
----- ------ -------------
1. Total Debt
----
Not greater than 55%
-----------------------
2. Secured Debt
----
Not greater than 40%
-----------------------
3. Limitation of Unimproved Real Property
Not greater than 12.5%
4. Limitation on Sale or Other Disposition of Real Property
See Schedule A
(attached hereto)
5. Annual Service Charge Coverage Ratio
----
2.5 or more
-------------
6. Fixed Charge Coverage Ratio
----
2.0 or more
-------------
7. Minimum Adjusted Tangible Net Worth
---- ---------------------------------------
Not less than $850,000,000, plus 80% of equity offerings made by
----------------------------------------------------------------------
Borrower after 12/31/99
--------------------
8. Assets Retained
----
Not less than 150%
---------------------
9. Limitation on Central Plaza=s Incurrence of Debt
Not more than $500,000
10. Limitation on Bell Plaza=s Incurrence of Debt
Not more than $1,200,000
Total Unsecured Debt to Adjusted EBIDA for
11. Unencumbered Property
----- ----------------------
6.66 to 1.0
or less
--------
12. Dividends
----- ---------
95% of Funds from Operations
3. Certification
The undersigned hereby further certifies and warrants to the Banks that, as
of the date set forth above, (i) no default under the Credit Agreement dated
_______________, ______ by and among the Borrower, Bank of America, N.A., as
Agent, and the Banks named therein as modified or amended (the "Credit
Agreement") has occurred, and no event has occurred, which, but for the passage
of time, would constitute a default (except for any default which may have been
expressly waived in writing by the Banks), (ii) each representation and warranty
of the Borrower contained in the Credit Agreement is still true and correct on
and as of the date set forth above, as though made on and as of such date, and
(iii) the undersigned is the duly elected, qualified and acting Chief Financial
Officer (or Chief Accounting Officer) of the Borrower, and as such, is
authorized to execute this Report on its behalf.
The undersigned hereby further certifies and warrants to the Banks that, as
of the date set forth above, (i) no default under the Credit Agreement has
occurred, and no event has occurred, which, but for the passage of time, would
constitute a default (except for any default which may have been expressly
waived in writing by the Banks) except as noted on the attachment, (ii) each
representation and warranty of the Borrower contained in the Credit Agreement is
still true and correct on and as of the date set forth above, as though made on
and as of such date, except as noted on the attachment, and (iii) the
undersigned is the duly elected, qualified and acting Chief Financial Officer or
Chief Accounting Officer of the Borrower, and as such, is authorized to execute
this Report on its behalf.
4. In accordance with Section 6.01(e) of the Credit Agreement, attached
hereto is a description of each litigation, legal, administrative, or arbitral
proceeding, investigation or other action of any nature not previously reported
which involves a claim equal to or exceeding $5,000,000 against the Borrower or
any Subsidiary, or which involves the reasonable possibility, if adversely
determined, in the judgment of the Borrower, of a judgment in excess of
$1,000,000 which has not been stayed (whether by supersedas bond or otherwise),
or other liability, in each case, which could have a material adverse effect on
the business, operations or financial conditions of the Borrower and its
Subsidiaries, taken as a whole or otherwise required to be reported pursuant to
said Section 6.01(e).
5. Each Subsidiary newly formed or acquired since the Closing Date (all of
the stock of which is owned by the Borrower) has executed and delivered to the
Agent a Guaranty Agreement in accordance with Section 6.06 of the Credit
Agreement.
A Guaranty Agreement from the Subsidiary(ies) listed on the attachment is
enclosed herewith.
6. Attached is Schedule A, computations and other information relevant in
connection with this Compliance Certificate.
By:
Name:
Title:
SCHEDULE A
Debt
Calculation of "Limitations on Incurrence of Debt" as defined for purposes of
Section 7.02(a). Calculations as of __________________:
1. Components of Debt:
2. Debt
3. Total Assets
4. Debt/Total Assets (Line (ii) divided by Line (iii))
"Debt" and "Total Assets" are defined terms in the Credit Agreement.
Secured Debt
Calculation of "Limitations on Incurrence of Debt" as defined for purposes of
Section 7.02(b). Calculation as of _________________:
5. Components of Secured Debt:
6. Secured Debt
7. Total Assets
8. Secured Debt/Total Assets (Line (ii) divided by Line (iii))
"Debt" and "Total Assets" are defined terms in the Credit Agreement. "Secured
Debt" means Debt described in Section 7.02(b) and (c) of the Credit Agreement.
Limitation of Unimproved Real Property
Calculation of "Unimproved Real Property" as defined for purposes of Section
7.03. Calculation as of _________________:
9. Unimproved Real Property
10. Undepreciated Real Estate Assets
----- -----------------------------------
Unimproved Real Property/
11. Undepreciated Real Estate Assets (Line (i) divided by Line (ii))
----- -----------------------------------------------------------------
"Unimproved Real Property" and "Undepreciated Real Estate Assets" are defined
terms in the Loan Agreement
Limitation on Sale or Other Disposition of Real Property
(1) Calculation of "Sale or Other Disposition of Real Property" as defined
for purposes of Section 7.04(a). Calculation as of ____________________:
12. Total Dispositions for last 12 calendar months (or if shorter,
for the period from January 6, 2000, to such date).
13. Total Dispositions/Undepreciated Real Estate Assets
----- -------------------------------------------------------
Undepreciated Real Estate Assets
14. (as of last day of preceding quarter)
----- -------------------------------------------
15. Ten Percent (10%) of line (iv)
----- -----------------------------------
Excess of line (ii) over line (v) -
16. Amount of Adjusted Net Proceeds
----- -----------------------------------
"Adjusted Net Proceeds" is a defined term in the Credit Agreement.
Limitation on Sale or Other Disposition of Real Property
Section 7.04
(1) Calculation of "Sale or Other Disposition of Real Property" as defined
for purposes of Section 7.04(b). Calculation as of __________________:
17. Total Dispositions for last 36 months (or if shorter, for the
period from January 6, 2000, to such date).
18. Total Dispositions/Undepreciated Real Estate Assets
----- -------------------------------------------------------
Undepreciated Real Estate Assets
19. (as of last day of preceding quarter)
----- -------------------------------------------
20. Fifteen Percent (15%) of line (iv)
----- ---------------------------------------
Excess of line (ii) over line (v) -
21. Amount of Adjusted Net Proceeds
----- -----------------------------------
"Adjusted Net Proceeds" is a defined term in the Credit Agreement.
Annual Service Charge Coverage Ratio
Calculation of "Annual Service Charge Coverage Ratio" as defined for purposes
of Section 7.07(a). Calculation as of _________________ for the period
_____________ through __________________.:
22. Funds from Operations
----- -----------------------
23. Net Income
----- -----------
29. Minus:
----- ------
30. Gains on Sale of Properties and investment securities
----- ------------------------------------------------------------
31. Excess Net income
----- -------------------
32. Total (Sum of Lines (ii) - (vii) minus Lines (ix) and (x))
----- -----------------------------------------------------------------
33. Annual Service Charge
34. Interest/Original Issue Discount
35. Amount accrued in respect of Disqualified Stock
36. Total (Line (xiii) plus Line (xiv))
Funds from Operations/
37. Annual Service Charge (Line (xi) divided by Line (xv))
FEX4_30_1.DOC
"Funds from Operations" and "Annual Service Charge" are defined terms in the
Credit Agreement.
Fixed Charge Coverage Ratio
Calculation of "Fixed Charge Coverage Ratio" as defined for purposes of Section
7.07(b). Calculation as of __________________ for the period __________ through
__________:
38. Funds from Operations;
39. Net Income
----- -----------
40. Plus:
----- -----
45. Minus:
----- ------
46. Gains on Sale of Properties and investment securities
----- -----------------------------------------------------------------
47. Excess Net Income
----- -------------------
48. Total (sums of Lines (ii) - (vii) minus Lines (ix) and (x))
----- -----------------------------------------------------------------
Interest/Original Issue Discount
----------------------------------
49. Fixed Charge:
----- --------------
50. Interest/Original Issue Discount
----- ---------------------------------------
51. Principal payments on Debt
----- ----------------------------------
52. Amounts accrued in respect of preferred stock
----- -----------------------------------------------------------------
53. Total (Sum of Line (xiii), Line (xiv) and Line xv))
----- ------------------------------------------------------------
54. Funds from Operations/Fixed Charge (Line (xi) divided by Line
----- -----------------------------------------------------------------
(xvi))
---
"Funds from Operations" and "Fixed Charge" are defined terms in the Credit
Agreement.
Minimum Adjusted Tangible Net Worth
Calculation of Adjusted Tangible Net Worth
55. Net Worth
----- ----------
56. Aggregate Book Value of Intangible Assets of the Borrower
----- -----------------------------------------------------------------
57. Difference between Line (i) and Line (ii)
----- -----------------------------------------------
58. Accumulated Depreciation
----- -------------------------
59. Total (Sum of Line (iii) and Line (iv))
Assets Retained
Calculation of Undepreciated Real Estate Assets subject to no lien to Unsecured
Debt for purposes of Section 7.13.
60. Undepreciated Real Estate Assets subject to no lien (other than
Permitted Liens)
61. Principal outstanding of unsecured debt
62. 150% of line (ii)
----- --------------------
63. Excess of line (i) over line (iii)
----- ----------------------------------------
Total Unsecured Indebtedness to Adjusted EBIDA for Unencumbered Property.
Calculation as of _________________ for the period _________ through
__________.
i0 Total Unsecured Debt:
ii0 Debt
iii0 Minus: Secured Indebtedness
iv0 Total (Line 2 minus Line 3)
v0 Adjusted EBIDA for Unencumbered Property
Funds from Operation:
vi0 (components limited to Unencumbered Property)
vii0 Net Income
viii0 Plus:
----- -----
ix0 Depreciation and Amortization
--- -------------------------------
x0 Interest/Original Issue Discount
xi0 Extraordinary Charges
xii0 Excess Distributable Funds
xiii0 Minus:
----- ------
xiv0 Gains on Sale of Properties and Investment Securities
---- ------------------------------------------------------------
xv0 Excess Net Income
xvi0 Total (Sums of Lines (vii) - (xii) minus Lines (xiv) and (xv))
Minus:
xvii0 Capital Improvement Reserve
----- -----------------------------
xviii0 Adjusted EBIDA for Unencumbered Property (Line (xvi) minus Line
------ ----------------------------------------------------------------
(xvii))
-------
xix0 Total Unsecured Indebtedness/Adjusted EBIDA for Unencumbered
Property (Line (iv) divided by Line (xviii))
February __, 2000
Weingarten Realty Investors
2600 Citadel Plaza Drive
Houston, Texas 77018
Attention: Bill Robertson
Re: First Amendment to Credit Agreement dated as of February __, 2000 (the
"Amendment") by and between Weingarten Realty Investors, a Texas real estate
investment trust ("Borrower"), and Bank of America, N.A., a national banking
association in its capacities as agent and a bank ("Bank of America")
Gentlemen:
This letter is delivered to you in connection with the Amendment. Unless
otherwise defined herein, capitalized terms shall have the meanings set forth in
the Loan Agreement and in the Amendment. In connection with, and in
consideration of the agreements contained in the Amendment, Borrower agrees with
Agent as follows:
Administrative Fee. On the first day of the Renewal Period, and on the
anniversary of such date each year during the Renewal Period, Borrower will pay
an administrative fee in the amount of $75,000 to Agent for its own account for
administrating the Loan during the following twelve (12) month period.
Renewal Fee. On the first day of the Renewal Period, Borrower shall pay to
Agent a renewal fee in an amount equal to 50 bps on the entire commitment of
the Banks under the Revolving Loan on such date. Borrower acknowledges and
agrees that the renewal fee is a bona fide commitment fee and is intended as
reasonable compensation to Banks for committing to make funds available to
Borrower and for no other purpose. Agent shall be entitled to allocate the
Renewal Fee among the Banks as Agent considers appropriate in its sole
discretion, but without prejudice to Borrower=s refund rights hereinafter
specified.
Subject to Borrower=s rights hereinafter specified, the fees payable above
shall be fully-earned upon becoming due and payable, shall be non-refundable for
any reason whatsoever and shall be in addition to any other fee, cost or expense
payable pursuant to the Loan Agreement.
Weingarten Realty Investors
February __, 2000
Page 23
Borrower acknowledges that Bank of America desires that it be able to sell
down the Revolving Loan during the Renewal Period to the lesser of (a)
$35,000,000, or (b) 35% of Bank of America=s current commitment (the "Target
Hold Position"). Therefor, Borrower agrees that it shall consider actions which
are reasonably requested by Bank of America in order to enable Bank of America
to sell down the Revolving Loan to the Target Hold Position, including but not
limited to, modifying the Loan Documents to increase the price spread, increase
the renewal fee, revise financial covenants or make other structural changes to
the Loan Documents.
If Borrower notifies Bank of America that Borrower elects the Renewal
Option (the date of such notice being called the "Notice Date"), Bank of America
will endeavor to notify Borrower within fifteen (15) days after the Notice Date
of what changes (the "Anticipated Changes"), if any, need to be made to the
price spread, or any other part of the Revolving Loan, in order for Bank of
America to reach the Target Hold Position. Borrower shall then have seven (7)
days to elect by notice in writing to Bank of America to either (a) accept the
proposed modifications to the Revolving Loan, or (b) pay off the Revolving Loan
in full within sixty (60) days after expiration of the aforesaid seven (7) day
period.
If Borrower accepts the Anticipated Changes, but, thereafter, Bank of
America determines that changes to the Anticipated Changes or other changes (the
"Actual Changes") are necessary to enable Bank of America to reach the Target
Hold Position, Bank of America shall give written notice to Borrower of the
Actual Changes and Borrower shall have another seven (7) day period to either
accept (a) the Actual Changes or (b) elects to pay off the Revolving Loan within
sixty (60) days after expiration of the aforesaid seven (7) day period:
(x) because the all-in pricing, including, without limitation, interest
rate, price spread and fees, suggested by Bank of America in order to achieve
the Target Hold Position is such that Borrower would be required to pay interest
(including fees) at a rate greater than the highest applicable interest rate in
effect under this credit facility (as amended by the Amendment) or under any
other senior credit facility of Borrower (but limited to bank revolving credit
facilities) then outstanding or which was outstanding during the twelve month
period prior to the Renewal Period (herein collectively referred to as the
"Existing Senior Facilities"), or
(y) because the revisions to the financial covenants or the other
structural changes to the Loan Documents suggested by Bank of America in order
to achieve the Target Hold Position are such that the proposed new loan is
materially less favorable than any of the Existing Senior Facilities.
For purposes of comparing the highest applicable interest rate in effect on any
of the Existing Senior Facilities with that under the loan suggested by Bank of
America, all fees shall be amortized, prorated, allocated, and spread throughout
the term of the Indebtedness.
If (i) Bank of America notifies Borrower in writing of the Actual Changes
to the Revolving Loan, and (ii) Borrower elects, for one or more of the reasons
specified in (x) and (y) above, to pay off the Revolving Loan in full within
sixty (60) days, then the Administrative Fee and Renewal Fee shall be refunded
at the time the Loan is completely paid off in the following manner: The refund
of the Administrative Fee shall be equal to the Administrative Fee paid by
Borrower multiplied by the quotient of (a) the number of days of the Renewal
Period which have not lapsed prior to Borrower=s paying off the Revolving Loan,
divided by (b) three hundred sixty-five (365). The refund of the Renewal Fee
shall be equal to the Renewal Fee paid by Borrower multiplied by the quotient of
(i) the number of days of the Renewal Period which have not lapsed prior to
Borrower=s paying off the Revolving Loan, divided by (b) seven hundred thirty
(730).
If the foregoing is in accordance with your understanding, please execute
and return this letter to us.
Very truly yours,
BANK OF AMERICA, N.A.,
as Agent and a Bank
By:
Name:
Title:
Accepted and Agreed to
as of February __, 2000:
WEINGARTEN REALTY INVESTORS
By:
Name:
Title:
PROMISSORY NOTE (WEINGARTEN REALTY INVESTORS)
$100,000,000.00 _________________, 2000
FOR VALUE RECEIVED, the undersigned, Weingarten Realty Investors, a Texas
real estate investment trust, hereby promises to pay to the order of BANK OF
AMERICA, N.A., a national association (the "Bank") the principal sum of ONE
HUNDRED MILLION AND NO/100 DOLLARS ($100,000,000.00) or the aggregate principal
amount of Advances made pursuant to the Credit Agreement hereinafter mentioned
and outstanding as of the maturity hereof, whether by acceleration or otherwise,
whichever may be the lesser, on or before the Revolving Credit Termination Date,
together with interest on any and all amounts remaining unpaid hereon from time
to time from the date hereof until maturity, payable as described in the Credit
Agreement, and at maturity, in the manner and at the rates per annum as set
forth in the Credit Agreement dated as of even date herewith, between the
undersigned, the Bank in its own capacity and as Agent, and the other banks
which are party thereto, as amended from time to time (the "Credit Agreement").
Capitalized terms used but not otherwise defined herein shall have the same
respective meanings ascribed to them as in the Credit Agreement.
If any payment of principal or interest on this Note shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
business day, and such extension of time shall in such case be considered in
computing interest in connection with such payment
Payments of both principal and interest are to be made in immediately available
funds at the office of the Agent, 901 Main Street, 51st Floor, Dallas, Texas,
75202, or such other place as the holder shall designate in writing to the
maker.
If default is made in the payment of this Note and it is placed in the hands of
an attorney for collection, or collected through bankruptcy proceedings, or if
suit is brought on this Note, the maker agrees to pay reasonable attorneys' fees
in addition to all other amounts owing hereunder.
This Note is the Note provided for in, and is entitled to the benefits of, the
Credit Agreement, which, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events,
for prepayments of principal hereof prior to the maturity hereof upon terms and
conditions therein specified and, for payments of principal of and interest on
this Note in the manner and at the times and under the terms and conditions of
the Credit Agreement, and to the effect that no provision of the Credit
Agreement or this Note shall require the payment or permit the collection of
interest in excess of the Highest Lawful Rate, It is contemplated that by reason
of prepayments hereon there may be times when no indebtedness is owing
hereunder; but notwithstanding such occurrences this Note shall remain valid and
shall be in full force and effect as to Advances made pursuant to the Credit
Agreement subsequent to each such occurrence.
Except as expressly provided in the Credit Agreement, the maker and any and
all endorsers, guarantors and sureties severally waive grace, notice of intent
to accelerate, notice of acceleration, demand, presentment for payment, notice
of dishonor or default, protest and notice of protest and diligence in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security herefor, in whole or in part, with or without notice,
before or after maturity.
With respect to the incurrence of certain liabilities hereunder and the making
of certain agreements by the Borrower as herein stated, such incurrence of
liabilities and such agreements shall be binding upon the Borrower only as a
trust formed under the Texas Real Estate Investment Trust Act pursuant to that
certain Restated Declaration of Trust dated March 23, 1988, and only upon the
assets of such Borrower. No Trust Manager or officer or other holder of any
beneficial interest in the Borrower shall have any personal liability for the
payment of any indebtedness or other liabilities incurred by the Borrower
hereunder or for the performance of any agreements made by the Borrower
hereunder, nor for any other act, omission or obligation incurred by the
Borrower or by the Trust Managers except, in the case of a Trust Manager, any
liability arising from his own wilful misfeasance or malfeasance or negligence.
WEINGARTEN REALTY INVESTORS
By:
Name:
Title:
WEINGARTEN REALTY INVESTORS
1999 EMPLOYEE SHARE PURCHASE PLAN
1. Purpose
The primary purpose of this Plan is to encourage Share ownership by each
Eligible Employee and each Eligible Trust Manager in the belief that such Share
ownership will increase his or her interest in the success of Weingarten Realty
Investors, a Texas real estate investment trust (the "Company").
2. Definitions
2.1. The term "Account" shall mean the separate bookkeeping account
established and maintained by the Plan Administrator for each Participant for
each Purchase Period to record the contributions made on his or her behalf to
purchase Shares under this Plan.
2.2. The term "Beneficiary" shall mean the person designated as such in
accordance with Section 8.
2.3. The term "Board" shall mean the Board of Trust Managers of the
Company.
2.4. The term "Closing Price" (a) for the first business day of any
Purchase Period shall mean the closing price for a share of Share as reported
for such day in The Wall Street Journal or in any successor to The Wall Street
Journal or, if there is no such successor, in any publication selected by the
Committee or, if no such closing price is so reported for such day, the first
such closing price which is so reported after such day or, if no such closing
price is so reported during the two week period which begins on the first day of
such Purchase Period, the fair market value of a Share as determined on the
first day of such Purchase Period by the Committee and (b) for the last business
day of a Purchase Period shall mean the closing price for a Share as reported
for such day in The Wall Street Journal or in any successor to The Wall Street
Journal or, if there is no such successor, in any publication selected by the
Committee or, if no such closing price is so reported for such day, the last
such closing price which is so reported before such day or, if no such closing
price is so reported during the two week period which ends on the last day of
such Purchase Period, the fair market value of a Share as determined as of the
last day of such Purchase Period by the Committee.
2.5. The term "Committee" shall mean the Compensation Committee of the
Board.
2.6. The term "Company" shall mean Weingarten Realty Investors, a Texas
real estate investment trust.
2.7. The term "Election Form" shall mean the form which an Eligible
Employee or Eligible Trust Manager shall be required to properly complete in
writing and timely file at least 15 days prior to the commencement of any
Purchase Period in order to make any of the elections available to an Eligible
Employee or Eligible Trust Manager under this Plan.
2.8. The term "Eligible Trust Manager" shall mean a person who is a
member of the Board.
2.9. The term "Eligible Employee" shall mean each officer or employee
of a Participating Employer who is shown on the payroll records of a
Participating Employer as a "benefits eligible" employee.
2.10. The term "Participant" shall mean (a) for each Purchase Period an
Eligible Employee or Eligible Trust Manager who has elected to purchase Shares
in accordance with Section 4 in such Purchase Period and (b) any person for whom
Shares are held pending delivery under Section 7.
2.11. The term "Participating Employer" shall mean the Company and any
affiliated entity which is designated as such by the Committee.
2.12. The term "Pay" means (i) in the case of an Eligible Employee, all
cash compensation paid to him or her for services to the Participating Employer,
including regular straight time earnings or draw, overtime, commissions and
bonuses, but excluding amounts paid as living allowance or reimbursement of
expenses and other similar payments; and (ii) in the case of an Eligible Trust
Manager, all retainers and meeting and other service fees paid to him or her by
the Participating Employer.
2.13. The term "Pay Day" means the day as of which Pay is paid to a
Participant.
2.14. The term "Plan" shall mean this Weingarten Realty Investors 1999
Share Purchase Plan, effective as of April 1, 1999, and as thereafter amended
from time to time.
2.15. The term "Plan Administrator" shall mean the Company or the
Company's delegate.
2.16. The term "Purchase Period" shall mean a period set by the
Committee. Unless changed by the Committee, each Purchase Period shall begin on
the first day of a calendar quarter and end on the last day of such calendar
quarter. The first Purchase Period shall commence on January 1, 1999 and
terminate on March 31, 1999.
2.17. The term "Purchase Price" for each Purchase Period shall mean 85%
of the lesser of: (a) the Closing Price for a Share on the last day of such
Purchase Period and (b) the greater of: (i) the Closing Price for a Share on
the first day of such Purchase Period and (ii) the average Closing Price for a
Share for all of the business days in the Purchase Period.
2.18. The term "Rule 16b-3" shall mean Rule 16b-3 promulgated under
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
successor to such rule.
2.19. The term "Share" shall mean the common shares of beneficial
interest, par value $.03 per share, of the Company. The aggregate number of
Shares available for grant under this Plan shall not exceed 250,000 subject to
adjustment pursuant to Section 17 hereof plus any Shares acquired by the Plan
Administrator in the open market for the Accounts of the Participants. Shares
subject to the Plan may be either authorized but unissued Shares, or Shares
hereafter acquired by the Company.
3. Administration
Except for the exercise of those powers expressly granted to the Committee
to determine the Closing Price, who is a Participating Employer and to set the
Purchase Period, the Plan Administrator shall be responsible for the
administration of this Plan and shall have the power in connection with such
administration to interpret the Plan and to take such other action in connection
with such administration as the Plan Administrator deems necessary or equitable
under the circumstances. The Plan Administrator also shall have the power to
delegate the duty to perform such administrative functions as the Plan
Administrator deems appropriate under the circumstances. Any person to whom the
duty to perform an administrative function is delegated shall act on behalf of
and shall be responsible to the Plan Administrator for such function. Any
action or inaction by or on behalf of the Plan Administrator under this Plan
shall be final and binding on each Eligible Employee, each Eligible Trust
Manager, each Participant and on each other person who makes a claim under this
Plan based on the rights, if any, of such Eligible Employee, Eligible Trust
Manager or Participant under this Plan.
4. Participation
4.1. Each person who is an Eligible Employee or an Eligible Trust
Manager shall be a Participant in this Plan for the related Purchase Period if
he or she properly completes and timely files an Election Form with the Plan
Administrator to elect to participate in this Plan. An Election Form may
require an Eligible Employee or Eligible Trust Manager to provide such
information and to agree to take such action (in addition to the action required
under Section 5) as the Plan Administrator deems necessary or appropriate in
light of the purpose of this Plan or for the orderly administration of this
Plan.
4.2. Notwithstanding anything herein to the contrary, no person shall
be deemed to be an Eligible Employee or an Eligible Trust Manager:
(a) if immediately after such participation, Participant would own
Shares, and/or hold outstanding options to purchase Shares, possessing 5% or
more of the total combined voting power or value of all classes of Shares of the
Company (for purposes of this paragraph, the rules of Section 424(d) of the
Internal Revenue Code of 1986, as amended, shall apply in determining Share
ownership of any Participant); or
(b) if such Participant's rights to purchase Shares under all employee
share purchase plans of the Company accrues at a rate which exceeds $25,000 in
fair market value of the Shares (determined at the time of Plan enrollment) for
each calendar year in which such purchase right is outstanding.
5. Contributions
5.1. Each Participant's Election Form under Section 4 shall specify the
contributions that he or she proposes to make for the related Purchase Period.
Such contributions shall be expressed as a specific dollar amount that
Participant proposes to contribute in cash or a percentage of the Participant's
Pay that his or her Participant Employer is authorized to deduct from his or her
Pay each Pay Day during the Purchase Period (or as a combination of such cash
and such payroll deduction contributions); provided, however:
(a) the minimum payroll deduction for a Participant for each Pay Day
for purposes under this Plan shall be $10.00, and
(b) the maximum contribution which a Participant may make for purposes
under this Plan for any calendar year shall be $25,000.
5.2. A Participant shall have the right to amend his or her Election
Form at any time to reduce or to stop his or her contributions, and such
election shall be effective immediately for cash contributions and as soon as
practicable after the Plan Administrator actually receives such amended Election
Form for payroll deductions. A withdrawal shall be deducted from the
participant's Account as of the date the Plan Administrator receives such
amended Election Form, and the actual withdrawal shall be effected by the Plan
Administrator as soon as practicable after such date. Participants who stop or
withhold contributions for any Purchase Period may not participate again for at
least six months.
5.3. All payroll deductions made for a Participant shall be credited to
his or her Account as of the Pay Day as of which the deduction is made. All
contributions made by a Participant under this Plan, whether in cash or through
payroll deductions, shall be held by the Company or by such Participant's
Participating Employer, as agent for the Company. All such contributions shall
be held as part of the general assets of the Company and shall not be held in
trust or otherwise segregated from the Company's general assets. No interest
shall be paid or accrued on any such contributions. Each Participant's right to
the contributions credited to his or her Account shall be that of a general and
unsecured creditor of the Company. Each Participating Employer shall have the
right to make such provisions as it deems necessary or appropriate to satisfy
any tax laws with respect to purchases of Shares made under this Plan.
5.4. The balance credited to the Account of an Eligible Employee
automatically shall be refunded in full (without interest) if his or her status
as an employee of all Participating Employers terminates for any reason
whatsoever during a Purchase Period and the balance credited to the Account of
an Eligible Trust Manager automatically shall be refunded in full (without
interest) if his or her status as a member of the Board terminates for any
reason whatsoever during a Purchase Period. Such refunds shall be made as soon
as practicable after the Plan Administrator has actual notice of any such
termination.
6. Purchase of Shares
6.1. If a Participant is an Eligible Employee or an Eligible Trust
Manager through the end of a Purchase Period, the balance which remains credited
to his or her Account at the end of such Purchase Period automatically shall be
applied to purchase Shares at the Purchase Price for such Shares for such
Purchase Period. Such Shares shall be purchased on behalf of the Participant by
operation of this Plan in whole and fractional Shares.
6.2. Except as specifically provided herein, the Participants shall
have the same rights and privileges under the Plan. All rules and
determinations of the Board in the administration of the Plan shall be uniformly
and consistently applied to all persons in similar circumstances.
6.3. If the total Shares to be purchased on any date in accordance with
Section 6(a) exceeds the Shares then available under the Plan (after deduction
of all Shares that have been purchased under Section 6(a)), the Plan
Administrator shall make a pro rata allocation of the Shares remaining available
in as neatly a uniform manner as shall be practical and as it shall determine to
be equitable.
7. Delivery
A book-entry record of the Shares purchased by each Participant shall be
maintained by the Company's transfer agent and no certificates shall be issued
for such Shares except to the extent that a Participant specifically so
requests. Notwithstanding the foregoing, when a refund is made to a participant
pursuant to Section 5.4, certificates shall be delivered to him or her for all
Shares then held for the Participant under the Plan. A Share certificate
delivered to a Participant shall be registered in his or her name or, if the
Participant so elects and is permissible under applicable law, in the names of
the Participant and one such other person as may be designated by the
Participant, as joint tenants with rights of survivorship. However, (a) no
Share certificate representing a fractional share of Share shall be delivered to
a Participant or to a Participant and any other person, (b) cash which the Plan
Administrator deems representative of the value of a Participant's fractional
share shall be distributed (when a participant requests a distribution of
certificates for all of the shares of Share held for him or her) in lieu of such
fractional share unless a Participant in light of Rule 16b-3 waives his or her
right to such cash payment and (c) the Plan Administrator shall have the right
to charge a participant for registering Share in the name of the Participant and
any other person. No Participant (or any person who makes a claim for, on behalf
of or in place of a participant) shall have any interest in any Share under this
Plan until they have been reflected in the book-entry record maintained by the
transfer agent or the certificate for such Share has been delivered to such
person.
8. Designation of Beneficiary
A Participant may designate on his or her Election Form a Beneficiary (a)
who shall receive the balance credited to his or her Account if the Participant
dies before the end of a Purchase Period and (b) who shall receive the Share, if
any, purchased for the Participant under this Plan if the Participant dies after
the end of a Purchase Period but before either the certificate representing such
Shares has been delivered to the Participant or before such Shares have been
credited to a brokerage account maintained for the Participant. Such
designation may be revised in writing at any time by the Participant by filing
an amended Election Form, and his or her revised designation shall be effective
at such time as the Plan Administrator receives such amended Election Form. If a
deceased Participant fails to designate a Beneficiary or, if no person so
designated survives a Participant or, if after checking his or her last known
mailing address, the whereabouts of the person so designated survives a
Participant or, if after checking his or her last known mailing address, the
whereabouts of the person so designated are unknown, then the Participant's
estate shall be treated as his or her designated Beneficiary under this Section
8.
9. Transferability and Dispositions
9.1. Neither the balance credited to a Participant's Account nor any
rights to receive Shares under this Plan may be assigned, encumbered, alienated,
transferred, pledged or otherwise disposed of in any way by a Participant during
his or her lifetime or by his or her Beneficiary or by any other person during
his or her lifetime, and any attempt to do so shall be without effect.
9.2. Except as provided in the last sentence of this Section 9.2 or in
Section 7, no sale, transfer or other disposition may be made of any Shares
purchased under the Plan until the second anniversary of such purchase. If a
Participant violates the foregoing restriction, he or she shall remit to the
Company an amount of cash equal to the difference between the amount he or she
paid for such Shares and the Closing price of such Shares on the date they were
purchased. The amount to be remitted for purposes of the foregoing shall be
computed by the Plan Administrator, in its discretion, using a last-in-first-out
basis of accounting in the event that Shares for more than one Purchase Period
are involved. Notwithstanding the foregoing, if a Participant who owns Shares
subject to the foregoing restriction is determined by the Plan Administrator in
its discretion to have a serious financial need for the proceeds of the sale of
such Shares, then upon application made by the Participant, the Plan
Administrator shall consent to a sale of such Shares to the extent necessary to
satisfy the serious financial need, and the Participant will not be required to
make the remittance to the Company described in this Section 9.2.
10. Securities Registration
If the Company shall deem it necessary to register under the Securities Act
of 1933, as amended, or any other applicable statute any Shares purchased under
this Plan or to qualify any such Shares for an exemption from any such statutes,
the Company shall take such action at its own expense. If Shares are listed on
any national securities exchange at the time any Shares are purchased hereunder,
the Company shall make prompt application for the listing on such national
securities exchange of such Shares, at its own expense. Purchases of Shares
hereunder shall be postponed as necessary pending any such action.
11. Compliance with Rule 16b-3
All elections and transactions under this Plan by persons subject to Rule
16b-3 are intended to comply with at least one of the exemptive conditions under
Rule 16b-3. The Plan Administrator shall establish such administrative
guidelines to facilitate compliance with at least one such exemptive condition
under Rule 16b-3 as the Plan Administrator may deem necessary or appropriate.
If any provision of this Plan or such administrative guidelines or any act or
omission with respect to this Plan (including any act or omission by an Eligible
Employee or an Eligible Trust Manager) fails to satisfy such exemptive condition
under Rule 16b-3 or otherwise is inconsistent with such condition, such
provision, guidelines or act or omission shall be deemed null and void.
12. Amendment or Termination
This Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate, and any such amendment shall be
subject to the approval of the Company's shareholders to the extent such
approval is required under the laws of the State of Texas, federal tax laws or
to the extent such approval is required to meet the security holder approval
requirements under Rule 16b-3; provided, however, no amendment shall be
retroactive unless the Board in its discretion determines that such amendment is
in the best interest of the Company or such amendment is required by applicable
law to be retroactive. The Board also may terminate this Plan and any Purchase
Period at any time (together with any related contribution election) or may
terminate any Purchase Period (together with any related contribution elections)
at any time; provided, however, no such termination shall be retroactive unless
the Board determines that applicable law requires a retroactive termination.
13. Notices
All Election Forms and other communications from a Participant to the Plan
Administrator under, or in connection with, this Plan shall be deemed to have
been filed with the Plan Administrator when actually received in the form
specified by the Plan Administrator at the location, or by the person,
designated by the Plan Administrator for the receipt of any such Election Form
and communications.
14. Employment
The right to elect to participate in this Plan shall not constitute an
offer of employment or membership on the Board, and no election to participate
in this Plan shall constitute an employment agreement for an Eligible Employee
or an agreement with respect to Board membership for an Eligible Trust Manager.
Any such right or election shall have no bearing whatsoever on the employment
relationship between an Eligible Employee and any other person or on an Eligible
Trust Manager's status as a member of the Board. Finally, no Eligible Employee
shall be induced to participate in this Plan, or shall participate in this Plan,
with the expectation that such participation will lead to employment or
continued employment, and no Eligible Trust Manager shall be induced to
participate in this Plan, or shall participate in this Plan, with the
expectation that such participation will lead to continued membership on the
Board.
15. Changes in Capital Structure
15.1. In the event that the outstanding Shares of the Company are
hereafter increased or decreased or changed into or exchanged for a different
number or kind of Shares or other securities of the Company or of another
corporation, by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, Share split-up, combination of Shares or
dividend payable in Shares, appropriate adjustment shall be made by the Board in
the number or kind of Shares as to which a right granted under this Plan shall
be exercisable, to the end that the right holder's proportionate interest shall
be maintained as before the occurrence of such event. Any such adjustment made
by the Board shall be conclusive.
15.2. If the Company is not the surviving or resulting corporation in
any reorganization, merger, consolidation or recapitalization, this Plan, and
the Company's rights, duties and obligations hereunder, shall be assumed by the
surviving or resulting corporation and the rights of a Participant to purchase
Shares shall continue in full force and effect.
16. Headings, References and Construction
The headings to sections in this Plan have been included for convenience of
reference only. This Plan shall be interpreted and construed in accordance with
the laws of the State of Texas.
17. Shareholder Approval
17.1. This Plan is intended to be a "Qualified Plan" within the meaning
of Section 423 of the Internal Revenue Code of 1986, as amended. Accordingly,
the Company will seek shareholder approval of the Plan at the next annual
meeting of the Company's shareholders. If shareholder approval is not obtained,
the Board of Trust Managers may terminate the Plan in its sole discretion.
We consent to the incorporation by reference in Registration Statements
No. 33-20964, No. 33-24364, No. 33-41604, No. 33-52473, No. 33-54402, No.
33-54404 and No. 333-94945 of Weingarten Realty Investors on Form S-8, in
Post-Effective Amendment No. 1 to Registration Statement No. 33-25581 of
Weingarten Realty Investors on Form S-8 and in Registration Statement
No. 333-85967 of Weingarten Realty Investors on Form S-3 of our report dated
February 22, 2000, appearing in this Annual Report on Form 10-K of Weingarten
Realty Investors for the year ended December 31, 1999.
DELOITTE & TOUCHE LLP
Houston, Texas
March 17, 2000
ARTICLE 5
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM WEINGARTEN
REALTY INVESTORS' ANNUAL REPORT FOR THE PERIOD ENDED DECEMBER 31, 1999.
Next Section
Previous Section