FIFTH SUPPLEMENTAL TRUST INDENTURE
This FIFTH SUPPLEMENTAL TRUST INDENTURE (this "Fifth Supplemental
Indenture") is executed this 7th day of January, 1999 (the "Execution Date"),
but effective as of December 28, 1998, 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:
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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
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") (the
Original Bonds, as renewed and extended by the First Renewal, Second Renewal,
Third Renewal, and the Fourth 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, and Fourth
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, and (iv) that certain Fourth
Supplemental Trust Indenture dated as of December 28, 1997, 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, and Fourth Supplemental Trust
Indenture being herein called the "Trust Indenture"); and
WHEREAS, the Bonds mature on December 28, 1998, 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 Fifth Bonds Renewal and Extension Agreement
("Fifth Renewal") dated effective as of December 28, 1998, 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, 1999.
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 Fifth Supplemental Indenture,
all capitalized terms used in this Fifth 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, 1999, 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, 1999.
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 Fifth Supplemental Indenture without joinder and consent of any other
party; and (c) the execution, delivery and performance of this Fifth
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 Fifth Supplemental Indenture, the Trust Indenture is hereby
modified and amended to conform with this Fifth Supplemental Trust Indenture.
Except as modified, renewed and supplemented by this Fifth 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 Fifth 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 Fifth 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, 1998 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 Fifth 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, 1998.
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 January,
1999, 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 January,
1999, by Rhonda L. Parma, 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 January,
1999, 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