FOURTH SUPPLEMENTAL TRUST INDENTURE
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This FOURTH SUPPLEMENTAL INDENTURE ("Fourth Supplemental Indenture") is
executed this 11th day of February, 1998 (the "Execution Date") but effective
as of December 28, 1997, 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.
WITNESSETH:
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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
renewed and extended the maturity date of the Original Bonds, to December 28,
1996 pursuant to the terms of that certain Bonds 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 Bonds Third Renewal
and Extension Agreement dated as of December 28, 1996 ("Third Renewal"); the
Original Bonds, as renewed and extended by the first renewal, Second Renewal,
and Third Renewal, being herein called the "Bonds"); and
and extension of the Bonds as provided in the First Renewal, Second Renewal,
and Third Renewal, such amendments being evidenced by (i) that certain
Supplemental Trust Indenture dated as of December 78, 1994 between the
Company, the Trustee and Weingarten, (ii) that certain Second Supplemental
Trust Indenture dated as of December 78, 1995, between the Company, the
Trustee, and Weingarten, and (iii) that certain Third Supplemental Trust
Indenture dated as of December 28, 1996 between the Company, the Trustee, and
Weingarten (the Original Trust Indenture, as amended and supplemented by the
Supplemental Trust Indenture, Second Supplemental Trust Indenture, and
Third Supplemental Trust Indenture, being herein called the "Trust
Indenture"); and
WHEREAS, the Bonds mature on December 28, 1997, 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 Fourth Bonds Renewal and Extension
Agreement ("Fourth Renewal") dated effective as of December 28, 1997, 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, 1998.
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 Fourth Supplemental
Indenture, all capitalized terms used in this Fourth Supplemental Indenture
shall have the meanings ascribed to those terms in the Trust Indenture.
1. 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, 1998, 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, 1998.
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 Fourth Supplemental Indenture without joinder and consent of any other
party; and (c) the execution, delivery and performance of this Fourth
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 Fourth Supplemental Indenture, the Trust Indenture is hereby
modified and amended to conform with this Fourth Supplemental Trust Indenture.
Except as modified, renewed and supplemented by this Fourth 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 Fourth 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 Fourth 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 Funds as of December 28, 1997 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 Fourth 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 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, 1997.
WRI HOLDINGS, INC., A TEXAS CORPORATION
By:______________________________________________
Martin Debrovner, Vice President
"Company"
CHASE BANK OF TEXAS, N.A.
By:______________________________________________
Assistant Vice President & Trust Officer
"Trustee"
WEINGARTEN REALTY INVESTORS
By:______________________________________________
Bill Robertson, Jr.
Executive Vice President
"Payee"