AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT (this "Amendment") is entered
into as of July 27, 1994, between Weingarten Realty Investors, a Texas real
estate investment trust (the "Trust"), and The Variable Annuity Life Insurance
Company ("VALIC"), American General Life and Accident Insurance Company ("AGLA")
and American General Life Insurance Company ("AGL") (VALIC, AGLA and AGL are
collectively referred to herein as the "Holders").
WITNESSETH:
WHEREAS, Weingarten Realty, Inc., a Texas corporation (the "Company"), VALIC,
AGLA, American General Life Insurance Company of Delaware ("AGLICD"), Republic
National Life Insurance Company ("RNLIC") and American-Amicable Life Insurance
Company ("AALIC") entered into a Note Purchase Agreement dated as of August 6,
1987 (as amended by that certain Amendment to Note Purchase Agreement dated to
be effective as of March 31, 1991, among the Trust and the Holders, the
"Agreement"), which provides for, among other things, the issuance and sale of
up to $35,000,000 in aggregate principal of Notes (as defined in the Agreement);
WHEREAS, the Trust has assumed the obligations of the Company under the
Agreement pursuant to an Assumption Agreement dated as of April 5, 1988, among
the Company, the Trust and the holders of Notes whose signatures are affixed
thereto;
WHEREAS, AGL is the successor in interest to AALIC and RNLIC, and AGLA is the
successor in interest to AGLICD;
WHEREAS, the Holders together hold all of the Notes outstanding as of the date
hereof;
WHEREAS, the parties hereto desire to amend the Agreement as hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
(S)1. Terms used in this Amendment that are not otherwise defined herein shall
have the meanings given to such terms in the Agreement.
(S)2. Section 7 of the Agreement is hereby amended by inserting the following
sentence immediately after the heading of such section:
The Company may, at its option, prepay the Notes (i) prior to the August 6,
1998, pursuant to Section 7.2(a) and (ii) on or after August 6, 1998, pursuant
to Section 7.1. The Company may be required to prepay the Notes from time to
time pursuant to Sections 7.2(b)-(d).
1
(S)3. Section 7.2(a) of the Agreement is hereby amended and restated in its
entirety to read as follows:
(a) The Company may, at its option, subject to the restrictions contained in
the immediately succeeding sentence and after having timely given the notice
required by Section 7.3, prepay all or any portion of the aggregate unpaid
principal amount of the outstanding Notes, pro rata, at any time prior to August
6, 1998, at a price equal to the sum of (i) the aggregate unpaid principal
amount of such Notes to be prepaid together with accrued and unpaid interest on
each principal amount so prepaid to the date specified in the notice for such
prepayment plus (ii) the Optional Prepayment Premium for such prepayment. Each
prepayment pursuant to this Section 7.2(a) of less than the entire aggregate
unpaid principal amount of the outstanding Notes (i) shall be in an amount not
less than $1,000,000 and shall be in an integral multiple of $1,000,000 and (ii)
the aggregate unpaid principal amount of such Notes to be prepaid and the
Optional Prepayment Premium that is payable as a result of such prepayment shall
be allocated among the outstanding Notes in proportion, as nearly as
practicable, to the respective unpaid principal amounts of those Notes, with
adjustments, to the extent practicable, to compensate for any prior prepayments
not made exactly in that proportion.
(S)4. The penultimate sentence of Section 7.3 of the Agreement is hereby
amended to read as follows:
In the event that prepayment is to be made pursuant to Section 7.2(a), the
Company shall further specify the Optional Prepayment Premium applicable to any
Notes to be so prepaid together with all calculations relevant thereto.
(S)5. Section 9.1 of the Agreement is hereby amended and restated in its
entirety to read as follows:
The Company will not at any time create, incur or assume, or otherwise become
or remain directly liable with respect to, any Short Term Debt in excess of the
greater of (i) $200,000,000 or (ii) 33% of Total Debt; provided, however, that
for purposes of the following test, Short Term Debt shall be reduced by (i)
floating rate Investments of equivalent amount owned by the Company and its
Consolidated Subsidiaries provided such Investments are permitted by Section
9.3, and (ii) the Market Value as of the date of determination, as determined
in good faith by the Chief Financial Officer of the Company, of U.S.
Governmental Securities that are owned by the Company and its Consolidated
Subsidiaries provided such Investments are permitted by Section 9.3.
(S)6. The definition "Consolidated Distributable Cash Flow Available for
Restricted Payments" contained in Section 15.1 of the Agreement is hereby
amended and restated in its entirety to read as follows:
2
"Consolidated Distributable Cash Flow Available for Restricted Payments: An
amount equal to (i) the sum of (x) 100% of the aggregate Consolidated
Distributable Cash Flow for the Calculation Period plus (y) 100% of the
aggregate gains on the sale or disposition of properties of the Company and the
Consolidated Subsidiaries for the Calculation Period plus (z) 100% of the
aggregate extraordinary gains (as defined by GAAP) of the Company and the
Consolidated Subsidiaries for the Calculation Period (other than gains covered
by the immediately preceding clause (y)), minus (ii) the aggregate amount of all
Restricted Payments made or declared after December 31, 1985."
(S)7. Section 15.1 of the Agreement is hereby amended by adding thereto the
following defined terms:
"Market Value: The value of the interest of the Company in any U.S. Government
Securities at any date that is the most probable price, as of that date, in cash
or in terms equivalent to cash, for which that interest should sell after
reasonable exposure in a competitive market under the conditions required for a
fair sale, with the buyer and seller each acting prudently, knowledgeably and in
their respective self interests, and assuming that neither is under undue
duress."
"Optional Prepayment Premium: The Optional Prepayment Premium, for any
prepayment of all or any portion of the aggregate principal amount of the
outstanding Notes, means the positive remainder (if any) obtained by
subtracting:
(a) the outstanding principal amount of the Notes to be prepaid on such date,
from
(b) the lowest of
(i) the sum of the present values, determined at the date fixed for such
prepayment, of (A) an amount equal to the outstanding principal amount of the
Notes to be prepaid on such date multiplied by 102% (assuming that the product
so obtained would have been due and payable on August 6, 1998), plus (B) all
unaccrued unpaid interest on such principal amount from the date of
determination of such Optional Prepayment Premium through and including August
6, 1998, computed at a discount rate equal to the sum of (x) the yield that
would be imputed (by linear interpolation) from the yields of United States
Treasury Notes maturing as closely as practicable to August 6, 1998, plus (y) 50
basis points,
(ii) the sum of the present values, determined at the date fixed for such
prepayment, of (A) an amount equal
3
to the outstanding principal amount of the Notes to be prepaid on such date
multiplied by 101% (assuming that the product so obtained would have been due
and payable on August 6, 1999), plus (B) all unaccrued unpaid interest on such
principal amount from the date of determination of such Optional Prepayment
Premium through and including August 6, 1999, computed at a discount rate equal
to the sum of (x) the yield that would be imputed (by linear interpolation) from
the yields of United States Treasury Notes maturing as closely as practicable to
August 6, 1999, plus (y) 50 basis points, and
(iii) the sum of the present values, determined at the date fixed for such
prepayment, of (A) the outstanding principal amount of the Notes to be prepaid
on such date (assuming that such principal amount would have been due and
payable on August 6, 2000), plus (B) all unaccrued unpaid interest on such
principal amount from the date of determination of such Optional Prepayment
Premium through and including August 6, 2000, computed at a discount rate equal
to the sum of (x) the yield that would be imputed (by linear interpolation) from
the yields of United States Treasury Notes maturing as closely as practicable to
August 6, 2000, plus (y) 50 basis points;
provided that for purposes of this definition, such present values shall be
computed to any date fixed for prepayment in accordance with generally accepted
financial practice based upon monthly compounding and such yields shall be
determined by reference to (a) the display designated as "Page 678" on the
Telerate Access Service (or such other display as may replace Page 678 on the
Telerate Access Service) for actively traded United States Treasury securities
adjusted to constant maturities, (b) if the Telerate Access Service shall have
ceased to exist or if yields are otherwise not available or ascertainable by
reference to such service, the statistical release designated "H.15(519)" or
any successor publication that is published weekly by the Federal Reserve System
and that establishes yields on actively traded U.S. Government Securities
adjusted to constant maturities, or (c) if the Telerate Access Service shall
have ceased to exist and such statistical release shall have ceased to be
published, such other reasonably comparable index that shall be designated by
the holder or holders of a majority in aggregate principal amount of the then
outstanding Notes."
"U.S. Government Securities: Securities that are (i) direct obligations of the
United States of America for the payment of which its full faith and credit is
pledged; (ii) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America pursuant to
authority granted by the Congress of the
4
United States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case under clauses (i) or (ii) above, are not callable or redeemable at
the option of the issuer thereof; or (iii) depository receipts issued by a bank
or trust company as custodian with respect to any such United States of America
government obligations referred to in clause (i) or (ii) of this definition or a
specific payment of interest on or principal of any such United States of
America government obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the United States of America government obligation or the specific
payment of interest on or principal of the United States of America government
obligation evidenced by such depository receipt."
(S)8. By its execution and delivery of this Amendment, the Trust represents
and warrants that, as of the date hereof and after giving effect to the
amendments contemplated by the foregoing Sections 2 through 7, no event has
occurred and is continuing that constitutes an Event of Default or Potential
Event of Default.
(S)9. This Amendment shall become effective when, and only when, the Trust and
each of the Holders shall have executed a counterpart of this Amendment.
(S)10. Upon effectiveness of this Amendment, each reference in the Agreement,
to "this Agreement", "hereunder", "herein" or words of like import shall be a
reference to the Agreement, as amended by this Amendment.
(S)11. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
(S)12. Except as expressly set forth herein, the terms and provisions of the
Agreement shall continue in full force and effect.
(S)13. This Amendment shall be construed and enforced in accordance with and
governed by the laws of the State of Texas.
5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first above written.
WEINGARTEN REALTY INVESTORS
/s/ Joseph W. Robertson, Jr.
By:____________________________
Name: Joseph W. Robertson, Jr.
Title: Executive Vice President
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY
(As an Original Note-holder and as the Successor in
Interest to American General Life Insurance Company
of Delaware), and
AMERICAN GENERAL LIFE INSURANCE COMPANY (As the
Successor in Interest to each of Republic National
Life Insurance Company and American-Amicable Life
Insurance Company)
/s/ Julia S. Tucker
By______________________________
Name: Julia S. Tucker
Title: Investment Officer
6