EXHIBIT 1.1
WEINGARTEN REALTY INVESTORS
COMMON SHARES AND PREFERRED SHARES
UNDERWRITING AGREEMENT
October 20, 1998
Edward D. Jones & Co., L.P.
12555 Manchester Road
St Louis, MO 63131
Ladies and Gentlemen:
Section 1. From time to time Weingarten Realty Investors, a Texas real
estate investment trust (the "Company"), proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and sell
to the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its shares of beneficial interest (the
"Shares") specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Designated Shares"). The Shares may include the
Company's common shares of beneficial interest, par value $.03 per share (the
"Common Shares"), or preferred shares of beneficial interest, par value $.03 per
share (the "Preferred Shares").
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the resolutions of the board of trust managers of the Company identified in such
Pricing Agreement.
Particular sales of Designated Shares may be made from time to time to the
Underwriters of such Shares, for whom the firms designated as representatives of
the Underwriters of such Shares in the Pricing Agreement relating thereto will
act as representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and to
an Underwriter or Underwriters who act without any firm being designated as its
or their representatives. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase the Shares. The obligation of the Company to
issue and sell any of the Shares and the obligation of any of the Underwriters
to purchase any of the Shares shall be evidenced by the Pricing Agreement with
respect to the Designated Shares specified therein. Each Pricing Agreement shall
specify the aggregate number of such Designated Shares, the initial public
offering price of such Designated Shares, the purchase price to the Underwriters
of such Designated Shares, the names of the Underwriters of such Designated
Shares, the names of the Representatives of such Underwriters and the number of
such Designated Shares to be purchased by each Underwriter and shall set forth
the date, time and manner of delivery of such Designated Shares and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the registration statement and prospectus with respect thereto) the terms of
such Designated Shares. A Pricing Agreement shall be in the form
of an executed writing (which may be in counterparts), and may be evidenced by
an exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
Section 2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S3 (File No. 333-51843) in
respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any post-
effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and to the Representatives for each of the
other Underwriters (copies delivered for such other Underwriters may
exclude exhibits to such registration statement, but must include all
documents incorporated by reference in the prospectus contained therein),
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to such registration statement
or document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of such
registration statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of such registration
statement and Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part of
the registration statement became effective, each as amended at the time
such part of the registration statement became effective (each filing of an
annual report pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), shall be considered
an additional time at which the Registration Statement became effective) or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Shares, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Exchange Act, and incorporated by reference in such Preliminary Prospectus
or Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing and if the
Company elects to rely on Rule 434 under the Act, any reference to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriters by the Company in reliance on Rule 434 under the Act (the
"Rule 434 Prospectus");
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made; and
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date and Time of Delivery
(as defined in Section 4 hereof) as to the Registration Statement and any
amendment thereto and as of its date of issuance and Time of Delivery (as
defined in Section 4 hereof) as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(d) The Company is a real estate investment trust duly formed and
validly existing under the laws of the State of Texas, with full power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company is duly qualified
to transact business and is in good standing in each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction, and holds all authorizations, approvals, orders, licenses,
certificates and permits from all governmental authorities which are
material to the conduct of its business;
(e) Each subsidiary of the Company has been duly incorporated (or,
with respect to Weingarten Properties Trust, has been duly formed as a real
estate investment trust) and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation or
formation or validly exists as a real estate investment trust, has full
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation or trust to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material adverse
effect or a prospective material adverse effect, on the condition,
financial or otherwise, or the earnings or business affairs of the Company
and its subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries (except for Weingarten Properties
Trust, of which the Company owns approximately 77% of the outstanding
capital shares), free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity;
(f) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the consolidated capital stock
of the Company (except for issuances of Common Shares pursuant to the
Company's employee benefit and stock option plans and the Company's
Dividend Reinvestment and Share Purchase Plan) or any change in the
consolidated debt of the Company or any of its subsidiaries or any decrease
in consolidated net current assets or net assets or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, and there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Shares have been duly and validly authorized, and, when
Designated Shares are issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Shares, such
Designated Shares will be duly and validly issued and fully paid and non-
assessable; and the Shares conform to the description thereof contained in
the Registration Statement, and the Designated Shares will conform to the
description thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Shares; and the issuance of the Designated
Shares to be purchased from the Company pursuant to this Agreement and any
Pricing Agreement is not subject to preemptive rights;
(i) The issuance and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of
the Declaration of Trust or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the transactions contemplated
by this Agreement or any Pricing Agreement, except such as have been, or
will have been prior to the Time of Delivery (as defined in Section 4
hereof), obtained under the Act and except for the listing of the
Designated Shares on the New York Stock Exchange, Inc. or other stock
exchange and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(j) The statements set forth in the Prospectus under the captions
"Description of the Series B Preferred Shares," "Description of Common
Shares," "Description of Preferred Shares," "Description of Securities
Warrants," "Plan of Distribution" and "Underwriting," insofar as they
purport to constitute a summary of the terms of the Shares, or to describe
the provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(k) Neither the Company nor any of its subsidiaries is in violation
of its charter or Bylaws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or its
properties may be bound;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(m) The consolidated financial statements together with related notes
and schedules as set forth or incorporated by reference in the Registration
Statement, present fairly the financial position and the results of
operations of the Company and its subsidiaries at the indicated dates and
for the indicated periods. Except as otherwise stated in the Registration
Statement, such financial statements have been prepared in accordance with
generally accepted accounting principles, applied on a consistent basis;
and the supporting schedules included in the Registration Statement present
fairly the information required to be stated therein;
(n) The Company and its subsidiaries have good and indefeasible title
in fee simple to all real property and interests in real property owned by
them and good and indefeasible title to all personal property owned by
them, in each case free and clear of all pledges, liens, encumbrances,
claims, security interests and defects, except as are described in the
Prospectus, and except for property owned in the joint ventures set forth
in Annex III hereto or such as do not materially affect the value of such
property and interests in the aggregate and do not interfere with the use
made and proposed to be made of such property and interests by the Company
and its subsidiaries taken as a whole; in the case of real property and
interests in real property, the Company and its subsidiaries have obtained
satisfactory confirmation (consisting of policies of title insurance or
binders therefor or opinions of counsel based upon the examination of
abstracts) confirming, except as is otherwise described in the Prospectus,
(a) that the Company and its subsidiaries have the foregoing title to such
real property and interests in real property; provided, however, that in
those cases in which such information is not current, the Company and its
subsidiaries do not have notice of any material claim of any sort which has
been asserted by anyone adverse to the Company's or its subsidiaries
foregoing title to such real property and interests in real property, and
(b) that the instruments securing the indebtedness of third parties to the
Company or its subsidiaries create valid liens upon the real properties
described in such instruments enjoying the priorities intended, subject
only to exceptions to title which have no materially adverse effect on the
value of such real properties and interests; and any real property and
buildings held under lease by the Company or its subsidiaries or leased by
the Company or its subsidiaries to a third party are held or leased by them
under valid, binding and enforceable leases conforming to the description
thereof set forth in the Prospectus, with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company or its subsidiaries or such
third
party;
(o) The Company and its subsidiaries have filed all federal, state,
local and foreign income tax returns which have been required to be filed
on or before the due date (taking into account all extensions of time to
file) and have paid or provided for all taxes indicated by said returns and
all assessments received by it to the extent that taxes have become due;
(p) Since January 1, 1985, the Company's form of organization, share
ownership and method of operation have satisfied, and the Company intends
to continue to satisfy, for the calendar year 1998 and subsequent taxable
periods, the requirements of the Internal Revenue Code of 1986, as amended
(the "Code"), as applicable for qualification of the Company as a "real
estate investment trust"; the Company's management believes that the nature
and value of the Company's assets and the anticipated income of the Company
for the taxable year ending December 31, 1998 will enable the Company to
qualify as a real estate investment trust for that taxable year (subject to
the continuing qualification of the Company's share ownership and the
Company's filing of its federal income tax return for that taxable year and
electing to be treated as a real estate investment trust);
(q) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(r) Deloitte & Touche LLP, who have audited certain financial
statements of the Company and its subsidiaries filed with the Commission as
part of, or incorporated by reference in, the Registration Statement and
Prospectus are independent public accountants as required by the Act and
the rules and regulations of the Commission promulgated thereunder;
furthermore, all financial statements required by Rule 314 of Regulation SX
("Rule 314") have been included or incorporated by reference in the
Registration Statement and the Prospectus and any such financial statements
are in conformity with the requirements of Rule 314. No other financial
statements are required to be set forth or to be incorporated by reference
in the Registration Statement or the Prospectus under the Act or the Rules
and Regulations thereunder;
(s) Other than as disclosed in the Registration Statement, nothing
has come to the attention of the Company which would lead the Company to
believe that the presence of hazardous substances, hazardous materials,
toxic substances or waste materials ("Hazardous Materials"), when
considered in the aggregate, would materially adversely affect the
financial condition of the Company. In connection with the construction on
or operation and use of the properties owned or leased by the Company or
any of its subsidiaries, the Company represents that, as of the date of
this Agreement, it has no knowledge of any material failure by the Company
or any of its subsidiaries to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and
disposal of any Hazardous Materials; and
(t) Immediately after any sale of Shares by the Company hereunder or
under any Pricing Agreement, the aggregate amount of the Shares which shall
have been issued and sold by the Company hereunder or under any Pricing
Agreement and of any securities of the Company (other than the Shares) that
shall have been issued and sold pursuant to the Registration Statement will
not exceed the amount of securities registered under the Registration
Statement.
Section 3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of
such Designated Shares, the several Underwriters propose to offer such
Designated Shares for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
Section 4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form, and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Shares.
Section 5. The Company agrees with each of the Underwriters of any
Designated Shares:
(a) If the Company does not elect to rely on Rule 434 under the Act,
immediately following execution and delivery of the applicable Pricing
Agreement, to prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the business
day following the execution and delivery of the Pricing Agreement relating
to the applicable Designated Shares or, if applicable, such earlier time as
may be required by Rule 424(b), or if the Company elects to rely on Rule
434 under the Act, immediately following execution and delivery of the
applicable Pricing Agreement, to prepare an abbreviated term sheet relating
to the Designated Shares in a form approved by the Representatives that
complies with the requirements of Rule 434 under the Act and to file such
form of Rule 434 Prospectus complying with Rule 434(c)(2) of the Act
pursuant to Rule 424(b) under the Act not later than the Commission's close
of business on the business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Shares or, if
applicable, such earlier time as may be required by Rule 424(b); to make no
further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Shares and prior to the
Time of Delivery for such Shares which shall be disapproved by the
Representatives for such Shares promptly after reasonable notice thereof;
to advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Shares, and during such same period to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Shares
or suspending any such qualification, to promptly use every reasonable
effort to obtain the withdrawal of such orer;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Promptly to furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities and at such
location as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Shares and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange
Act, to notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but
in any event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Shares and continuing to and including the
later of (i) the termination of trading restrictions under the Exchange Act
for such Designated Shares, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated Shares,
not to offer, sell, contract to sell or otherwise issue any shares of
beneficial interest of the Company which are substantially similar to such
Designated Shares, without the prior written consent of the Representatives
or enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of shares of beneficial interest of the Company
which are substantially similar to such Designated Shares, whether any such
swap or transaction described above is to be settled by delivery of shares
of beneficial interest of the Company which are substantially similar to
such Designated Shares, in cash or otherwise;
(f) To use the net proceeds received by it from the sale of the
Shares in the manner specified in the Prospectus under the caption "Use of
Proceeds"; and
(g) To elect to qualify as a "real estate investment trust" under the
Code, and to use its best commercially reasonable efforts to continue to
meet the requirements to qualify as a "real estate investment trust".
Section 6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the reasonable
fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto (including each abbreviated term sheet
delivered by the Company pursuant to Rule 434 under the Act) and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any blue sky and legal investment surveys and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
blue sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Shares; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing certificates for the
Shares (vii) the fees and expenses of any transfer agent or registrar or
dividend disbursing agent; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this
Section and Sections 8 and 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
Section 7. The obligations of the Underwriters of any Designated Shares
under the Pricing Agreement relating to such Designated Shares shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Shares are, at and as of the Time of Delivery for such Designated Shares, true
and correct, to the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction.
(b) Chapman and Cutler, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the Time
of Delivery for such Designated Shares, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(c) Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P., counsel for the
Company, shall have furnished to the Representatives their written opinion,
dated the Time of Delivery for such Designated Shares, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company is a real estate investment trust duly formed
and validly existing under the laws of the State of Texas and is
entitled to the benefits of the Texas Real Estate Investment Trust
Act.
(ii) The Company has the power and authority to own its
properties and to conduct its business as described in the
Prospectus.
(iii) The Company is duly qualified to transact business and is
in good standing in each jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification or is subject to no material liability, or disability
by reason of the failure to be so qualified in any such jurisdiction.
(iv) Each subsidiary of the Company has been duly incorporated
(or, with
respect to Weingarten Properties Trust, has been formed as a real
estate investment trust) and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation
or formation or is validly existing as a real estate investment
trust, has power and authority (corporate and other) to own, lease
and operate its properties and to conduct its business as described
in the Prospectus and, to the best of their knowledge and
information, is duly qualified as a foreign corporation or trust to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect or a prospective material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise; all of the
issued and outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries (except
for Weingarten Properties Trust, of which the Company owns
approximately 77% of the outstanding capital shares), free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(v) The Company has an authorized capitalization as set
forth in the Prospectus and all of the issued shares of capital stock
of the Company (including the Designated Shares being delivered at
such Time of Delivery) have been duly and validly authorized and
issued and are fully paid and non-assessable.
(vi) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(vii) This Agreement and the Pricing Agreement with respect
to the Designated Shares have been duly authorized, executed and
delivered by the Company, and are legal, valid and binding agreements
of the Company, enforceable in accordance with their respective
terms, except as enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights and by the exercise of judicial
discretion in accordance with general principles applicable to
equitable and similar remedies and except as to those provisions
relating to indemnities for liabilities arising under the Act as to
which no opinion need be expressed.
(viii) The Designated Shares conform to the description thereof
in the Prospectus.
(ix) The issue and sale of the Shares and the compliance by
the Company with all of the provisions of this Agreement and any
Pricing Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Declaration
of Trust or Bylaws of the Company or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties.
(x) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Shares or
the consummation by the Company of the transactions contemplated by
this Agreement or the Pricing Agreement, except such as have been, or
will have been prior to the Time of Delivery, obtained under the Act
and such consents, approvals, authorizations, orders, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Shares by the Underwriters.
(xi) The information set forth in the Prospectus, under the
captions "Description of the Series B Preferred Shares," "Certain
Federal Income Tax Considerations," "Description of Common Shares,"
"Description of Preferred Shares" and "Plan of Distribution" to the
extent such information constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions, and
under the caption "Underwriting" to the extent such information
constitutes a summary of this Underwriting Agreement, has been
reviewed by them and is correct.
(xii) Based upon review of such documents, certificates and
records as counsel has deemed necessary to express its opinion, upon
its discussions with management of the Company, independent
accountants for the Company and with certain shareholders of the
Company and based upon the facts set forth in the Registration
Statement, certain assumptions and certain representations made to it
by the Company's management and by certain of its shareholders,
counsel is of the view that, as of the date of its opinion the
Company's form of organization and its share ownership is such as to
enable the Company to meet the requirements of the Code for
qualifications as a real estate investment trust thereunder and that
its income, assets and method of operations have allowed it to
qualify as a real estate investment trust for its taxable year ended
December 31, 1985 and all years thereafter, and its currently
contemplated future assets, income and method of operations should
put it in a position to qualify to be treated as a real estate
investment trust for the calendar year 1998.
(xiii) The Company is not and, after giving effect to the
offering and sale of the Designated Shares, will not be an
"investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act.
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and, in the case of other documents which were filed under the Act or
the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading.
(xv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Shares (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder; although they do
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (xi) of this Section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Time of
Delivery, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) On the date of the Pricing Agreement for such Designated Shares
and at the Time of Delivery for such Designated Shares, the independent
public accountants of the Company who have certified the financial
statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives:
(e)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Shares any
loss or interference with its business from fire, explosion, flood or other
calamity, or from any labor dispute or court or governmental action, order
or decree, or any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Shares, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Shares there shall not have been any change in the capital stock
of the Company or any change in the consolidated long-term debt of the
Company and its subsidiaries or any decrease in consolidated net current
assets or net assets or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated Shares
on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Designated Shares.
(f) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred shares by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) except as described in the Prospectus, no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities
or preferred shares;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities
in New York or Texas declared by either Federal, Texas or New York
authorities; or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this Clause
(iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Shares; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Shares a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
the Representatives may reasonably request.
Section 8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares, or any
amendment or supplement thereto (including the information deemed to be a part
of the Registration Statement pursuant to Rule 434 under the Act, if
applicable), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission provided that any such settlement is
effected with the written consent of the Company, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated Shares.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares, or any
amendment or supplement thereto (including the information deemed to be a part
of the Registration Statement pursuant to Rule 434 under the Act, if
applicable), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel (unless separate counsel is required due to conflict of interest)
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Shares on
the other from the offering of the Designated Shares to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault
of the Company on the one hand and the Underwriters of the Designated Shares on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Shares and not joint.
The obligations of the Company under this Section 8 shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and trust manager of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
Section 9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Shares which it has agreed to purchase under the Pricing
Agreement relating to such Designated Shares, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Designated Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Shares, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Designated
Shares on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Shares, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Shares, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Designated Shares for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Designated Shares which remains unpurchased does not
exceed one-tenth of the aggregate number of the Designated Shares, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Designated Shares which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Shares and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Designated Shares which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Shares of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of Designated Shares which remains unpurchased exceeds one-
tenth of the aggregate number of the Designated Shares, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Designated Shares of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Shares shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
Section 10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or trust manager or controlling person of the Company,
and shall survive delivery of and payment for the Shares.
Section 11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Designated Shares covered by such Pricing Agreement except as
provided in Section 6 and Section 8 hereof. If this Agreement shall be
terminated as a result of any of the conditions set forth in Section 7 (other
than Section 7(g)(i), (iii) or (iv)) hereof not being satisfied, the Company
will reimburse the Underwriters through the Representatives for all out-of-
pocket expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Shares, but
the Company shall then be under no further liability to any Underwriter with
respect to such Designated Shares except as provided in Sections 6 and 8 hereof.
Section 12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
Section 13. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement: Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
Section 14. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and trust managers
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
Section 15. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
Section 16. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of Texas.
Section 17. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof.
Very truly yours,
Weingarten Realty Investors
By
Name:
Title:
Accepted as of the date hereof:
Edward D. Jones & Co., L.P.
By:
Authorized Signatory
ANNEX I
PRICING AGREEMENT
---------------
Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, MO 63131
October 20, 1998
Dear Sirs:
Weingarten Realty Investors, a Texas real estate investment trust (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated October 20, 1998 (the "Underwriting
Agreement"), between the Company on the one hand and Edward D. Jones & Co., L.P.
(the "Underwriter") on the other hand, to issue and sell to the Underwriter
3,600,000 of the Shares specified in Schedule II hereto (the "Designated
Shares"). Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the Prospectus in
Section 2 of the Underwriting Agreement shall be deemed to be a representation
or warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Shares which are the subject of this
Pricing Agreement. Each reference to the Representative herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to you, and you agree to purchase from the Company, at the time
and place and at the purchase price to the Underwriter set forth in Schedule II
hereto, the number of Designated Shares set forth opposite your name in Schedule
I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between you and the Company.
Very truly yours,
Weingarten Realty Investors
By
Name:
Title:
Accepted as of the date hereof:
Edward D. Jones & Co., L.P.
By
-----------------------------
SCHEDULE I
Underwriter Number of Designated Shares
to Be Purchased
Edward D. Jones & Co., L.P. 3,600,000
Total 3,600,000
=========
SCHEDULE II
Title of Designated Shares:
7 1/8% Series B Cumulative Redeemable Preferred Shares
Date of Board Resolution Establishing Designated Shares:
October 20, 1998
Number of Designated Shares:
3,600,000 shares
Over-allotment Option:
Not Applicable
Initial Offering Price to Public:
$ 25 per share
Purchase Price by Underwriter:
$ 24.2125 per share
Commission Payable to Underwriter:
$ 0.7875 per share
Specified Funds for Payment of Purchase Price:
Immediately available funds
Dividend Rate:
7 1/8% per annum
Dividend Payment Dates:
15/th/ day of each March, June, September and December
Dividend Rights:
Cumulative
Voting Rights:
None, except as specified in the Declaration of Trust or required by Texas
law; provided that if dividends are not paid for six or more quarterly periods,
the holders of the Designated Shares (together with any other preferred
shareholders who have the same voting rights) may elect two additional trust
managers to serve on the board of trust managers until all dividends in arrears
have been paid, all as more fully set forth in the Prospectus Supplement and the
Board resolutions establishing the 7 1/8% Series B Cumulative Redeemable
Preferred Shares.
Liquidation Rights:
Liquidation preference of $25.00 per share.
Preemptive and Conversion Rights:
None
Redemption Provisions:
The Designated Shares may be redeemed, in whole or in part at the option of
the Company, at any time after October 20, 2003, solely from the proceeds of an
offering of the Company's capital shares, at a redemption price of $25.00 per
share, plus accrued and unpaid dividends thereon to the date fixed for
redemption, without interest.
The Company will redeem the Designated Shares upon the death of any
registered owner of the Designated Shares, subject to the limitations more fully
described in the Prospectus Supplement and the Board resolutions establishing
the 7 1/8% Series B Cumulative Redeemable Preferred Shares.
Sinking Fund Provisions:
None
Time of Delivery:
October 28, 1998
Closing Location for Delivery of Shares:
Chapman and Cutler
111 W. Monroe Street
Chicago, Illinois 60603
Name and Address of Representative:
Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, MO 63131
Other Terms:
None
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been [separately] furnished to the representative or representatives of the
Underwriters (the Representatives) such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives [and are attached hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10Q
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which [have been separately furnished to the
Representatives][are attached hereto]; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the [Act and the Exchange] Act
and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the [Act and the
Exchange] Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation SK and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d)
respectively, of Regulation SK;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
net assets or shareholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in total revenues or net income or net income per share or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
ANNEX III
ALABAMA-SHEPHERD SHOPPING CENTER
DEVARGAS CENTER JOINT VENTURE
EASTEX VENTURE
EAST TOWN, LAKE CHARLES CO.
JACINTO CITY, LTD.
MAINE J.V. (LISBON STREET SHOPPING TRUST)
MAIN/OST, LTD.
NORTHWEST HOLLISTER VENTURE
PHELAN BOULEVARD VENTURE
SHELDON CENTER, LTD.
SOUTH-LOOP-LONG-WAYSIDE COMPANY
WRI/INTERPAK VENTURE
LINCOLN PLACE LTD. PARTNERSHIP
WRI/CROSBY VENTURE
WRI/DICKINSON VENTURE
MARKHAM WEST SHOPPING CENTER
WEINGARTEN/FINGER VENTURE
GJR/WEINGARTEN LITTLE YORK VENTURE
GJR/WEINGARTEN RIVER POINTE VENTURE