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Exhibit 10.18.1
AGREEMENT AND AMENDMENT TO LOAN AGREEMENT
This Agreement and Amendment to Loan Agreement (this "Amendment")
dated as of March 31, 1993 between WEINGARTEN REALTY INVESTORS (the
"Borrower"), a Texas real estate investment trust, and BARCLAYS BANK PLC (the
"Lender"), an English banking organization acting through its New York branch,
which has been authorized to do business in the State of New York;'
W I T N E S S E T H :
WHEREAS, the Borrower and the Lender executed and delivered that
certain Loan Agreement (as amended and supplemented to the date hereof, the
"Loan Agreement") dated as of October 1, 1990; and
WHEREAS, the Borrower and the Lender desire to amend the Loan
Agreement to (a) extend the Termination Date to June 1, 1994; (b) provide that
the Borrower will pay a commitment fee of 1/8% per annum on the difference
between the Revolving Commitment and the outstanding principal balance of the
Revolving Note; (c) provide that the Loans will be secured by perfected first
priority Liens on real Property with a value (as determined by the Lender in
its sole discretion) such that the ratio of the outstanding Loans to such value
will not exceed 65%; (d) establish a mechanism for the periodic appraisal of
such real Property; (e) modify the mechanism for the extension of the
Termination Date, and (f) amend the Loan Agreement in certain other respects;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Borrower and the Lender do hereby agree as follows:
Section 1. The following definitions contained in Section 1 of the Loan
Agreement are hereby each amended to provide as follows:
Loan Documents shall mean this Agreement, the Notes, the Deeds
of Trust, the Guaranty, all instruments, certificates and agreements
now or hereafter executed or delivered to the Lender pursuant to any
of the foregoing, and all amendments, modifications, renewals,
extensions, increases and rearrangements of, and substitutions for,
any of the foregoing.
Termination Date shall mean the earlier of (a) the date
specified by the Lender in accordance with Section 7.1 hereof or (b)
June 1, 1994; provided that if (1) the Borrower executes, acknowledges
and delivers to the Lender multiple originals (at least one set for
each Deed of Trust then existing, with one of such set for the
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Lender and one of such set for the Borrower) of a Renewal and Extension
Agreement substantially in the form of Exhibit C during the March
immediately preceding the then-current Termination Date and (2) the
Lender executes, acknowledges and delivers to the Borrower one of such
Renewal and Extension Agreements on or before the April 30 immediately
before the then-current Termination Date, then the scheduled
Termination Date shall be extended by one year. Neither the Borrower
nor the Lender shall be obligated to execute, acknowledge or deliver
any Renewal and Extension Agreement, but each may do so at its sole
discretion and the failure of either the Borrower or the Lender to
execute, deliver and acknowledge any Renewal and Extension Agreement
shall mean that the Termination Date shall not be extended by
operation of this definition.
Section 2. section 1 of the Loan Agreement is hereby amended to add
thereto the following definitions:
Deed of Trust shall mean an instrument substantially
in the form of Exhibit D and completed such that it is in Proper Form;
provided that if the Property intended to be covered thereby is
located in a jurisdiction other than the State of Texas, then the Deed
of Trust covering such Property shall be an instrument in Proper Form.
Loan to Value Ratio shall mean, as of any date, the ratio
(expressed as a percentage) of (a) the outstanding principal balance
of the Loans outstanding on such date to (b) the aggregate Value of
the Mortgaged Properties on such date.
Mortgaged Property shall mean all Property, whether now
existing or hereafter acquired, which is or is to become subject to
the Liens of a Deed of Trust; provided that such Property shall not
be considered "Mortgaged Property" for purposes of this Agreement
(although it shall still be subject to the Liens of the Deed of Trust)
unless the Borrower shall have delivered to the Lender a legal opinion
of independent counsel to the Borrower (or other evidence reasonably
satisfactory to the Lender) in Proper Form stating that the Lien of
such Deed of Trust is a perfected first priority Lien.
Value shall mean the fair market value of any Mortgaged
Property, as determined by the Lender from time to time in its sole
and absolute discretion. Each determination by the Lender of the
Value of a Mortgaged Property shall be binding and conclusive.
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Section 3. There are hereby added to the Loan Agreement new Sections
2.5, 2.6, 2.7 and 2.8, which shall provide in their entirety as follows:
2.5. Commitment Fee. In consideration of the Revolving
Commitment, the Borrower agrees to pay a commitment fee (computed on
the basis of the actual number of days elapsed in a year composed of
360 days) of 1/8% per annum on the daily average difference between
the Revolving Commitment and the outstanding principal balance of the
Revolving Note, such fee to be due and payable in arrears on the last
Business Day of each calendar quarter and on the Termination Date.
All past due commitment fees shall bear interest at the Past Due Rate.
2.6. Mortgaged Properties. The obligations of the Borrower
under the Loan Documents shall be secured by Deeds of Trust on
Mortgaged Properties selected by the Borrower. The Borrower may add
Mortgaged Properties at any time and from time to time. The Borrower
may request that the Lender release any Mortgaged Property at any time
and from time to time, and the Lender shall promptly execute and
acknowledge a release in Proper Form and deliver it to the Borrower,
all at the Borrower's expense, if (a) the Loan to Value Ratio would
not exceed after giving effect to such release and (b) no Event of
Default has occurred and is continuing.
2.7. Appraisals. From time to time and at any time, the Lender
shall determine the Value of such Mortgaged Property and give notice
to the Borrower of such Value. The Borrower shall pay the Lender a fee
of $1,500 plus the Lender's out-of-pocket travel costs in connection
with each such determination, and such fee and expenses shall be due
and payable five Business Days after presentation to the Borrower of a
statement therefor; provided that the Lender shall present only one
such statement with respect to a particular Mortgaged Property in any
12-month period. Each determination of the Value of a Mortgaged
Property by the Lender shall be for the Lender's exclusive benefit,
and the Borrower shall not-and shall not allow any other Person to--
rely upon such determination in any manner, and the Borrower will
indemnify and hold the Lender harmless from all such reliance by the
Borrower or any other Person.
2.8. Loan to Value Ratio. Notwithstanding anything in any Loan
Document to the contrary, the Lender shall have no obligation to make
any Loan if the Loan to Value Ratio would exceed 65% after the making
of such Loan. Furthermore, if the Loan to Value Ratio ever exceeds
70%, then the Borrower shall prepay the Loans such that the Loan to
Value Ratio does not exceed 65%; such prepayment shall be due and
payable five Business Days after the
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Lender gives the Borrower notice that the Loan to Value Ratio exceeds
65% (which notice may be implied by the Borrower's receipt of a notice
setting forth the value of a Mortgaged Property) and shall be applied
as set forth in the Note. Each such prepayment shall be applied first
to that portion of the Note bearing interest at the Fed Funds Rate
plus 1%, and then, notwithstanding the order of payment specified in
Section 2.4 hereof, to those portions of the Note bearing interest at
Quoted Rates in such order as will minimize the aggregate prepayment
premiums (as determined in accordance with Section 2.4 hereof) due in
connection with such prepayment.
Section 4. Section 3.3 of the Loan Agreement is hereby amended to read
in its entirety as follows:
3.3. Term Loan. In addition to the matters described in
Sections 3.1 and 3.2 hereof, the obligation of the Lender to make the
Term Loan is subject to the receipt by the Lender of the following,
all duly executed and in Proper Form: (a) the Term Note; (b)
instruments supplementing all then-existing Deeds of Trust to provide
that the Deeds of Trust now secure the Term Note; (c) a Secretary's
Certificate from the Borrower; (d) a written statement from the
Guarantors confirming that the Term Note is guaranteed by the
Guaranty, and (e) a legal opinion from independent counsel for the
Borrower acceptable to the Lender and to the effects set forth on
Exhibit G.
Section 5. Section 6.7(c) of the Loan Agreement is hereby amended to
read in its entirety as follows:
(c) Investments in its Subsidiaries acquired after the date
hereof, provided that each such Subsidiary (1) is directly or
indirectly wholly owned by the Borrower and (2) executes a Guaranty
Joinder, substantially in the form of Exhibit I, within 30 days after
the date of such acquisition,
Section 6. Exhibits. Exhibits C and D and Appendix II to the Loan
Agreement are hereby deleted, and there are hereby substituted therefor new
Exhibits C and D and Appendix II, which shall be identical to Exhibits C and D
and Appendix II, attached hereto and hereby made a part hereof. There is
hereby added to the Loan Agreement a new Exhibit I, which shall be identical to
Exhibit I, attached hereto and hereby made a part hereof.
Section 7. Conditions. This Amendment shall not become effective
until the Borrower shall have delivered to the Lender each of the following:
(a) a Secretary's Certificate of the Borrower;
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(b) a writing from the Guarantors confirming that the
Guaranty continues to guarantee the obligations of the Borrower under
the Loan Documents; and
(c) such other documents and information as the Lender may
reasonably request.
Section 8. Representations True; No Default. The Borrower represents
and warrants that the representations and warranties contained in the Loan
Documents (after giving effect to any written disclosures delivered to the
Lender contemporaneously with the execution of this Amendment) are true and
correct in all material respects on and as of the date hereof as though made on
and as of such date. The Borrower hereby certifies that no event has occurred
and is continuing which constitutes a Default or an Event of Default.
Section 9. Ratification. Except as expressly amended hereby, the Loan
Documents shall remain in full force and effect. The Loan Agreement, as hereby
amended, and all rights and powers created thereby or thereunder and under the
other Loan Documents are in all respects ratified and confirmed and remain in
full force and effect.
Section 10. Definitions and References. Any term used herein which is
defined in the Loan Agreement or in the other Loan Documents shall have the
meaning therein ascribed to it. The terms "Agreement" and "Loan Agreement" as
used in the Loan Documents or any other instrument, document or writing
furnished to the Lender by the Borrower and referring to the Loan Agreement
shall mean the Loan Agreement as hereby amended.
Section 11. Expenses; Additional Information. The Borrower shall pay
to the Lender all reasonable expenses incurred in connection with the execution
of this Amendment. The Borrower shall furnish to the Lender all such other
documents, consents and information relating to the Borrower as the Lender may
reasonably require.
Section 12. REIT. The Borrower is an unincorporated trust organized
under the Texas Real Estate Investment Trust Act, as amended (the "Act"). The
obligations and liabilities of the Borrower created under the Loan Documents
shall be binding upon the Borrower only as a trust under the Act, and only upon
the Property of the Borrower. None of the shareholders, managers, officers,
employees or agents of the Borrower or holders of any beneficial interest in
the Borrower shall have any personal liability, in any manner whatsoever, for
the payment of any monies or the performance of the agreements made by the
Borrower under the Loan Documents.
Section 13. Miscellaneous. This Amendment (a) shall be binding upon
and inure to the benefit of the Borrower and the Lender and their respective
successors, assigns, receivers and trustees (provided that the Borrower shall
not assign its rights hereunder without the express prior written consent of
the Lender);
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(b) may be modified or amended only by a writing signed by each party;
(c) shall be governed by and construed in accordance with the laws of the State
of Texas and the United States of America; (d) may be executed in several
counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
agreement, and all such separate counterparts shall constitute but one and the
same agreement, and (e) together with the other Loan Documents, embodies the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements, consents and
understandings relating to such subject matter. The headings herein shall be
accorded no significance in interpreting this Amendment.
IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Amendment to be signed by their respective duly authorized officers, effective
as of the date first above written.
WEINGARTEN REALTY INVESTORS,
a Texas real estate investment trust
By: BILL ROBERTSON, JR.
--------------------------------
Name: Bill Roberton, Jr.
Title: Executive Vice President
BARCLAYS BANK PLC,
an English banking organization
acting through its New York
branch
By: DAVID J. PALANS
--------------------------------
Name: David J. Palans
Title: Vice President
Exhibit C - Renewal and Extension Agreement
Exhibit D - Deed of Trust and Security Agreement
Exhibit I - Guaranty Joinder
Appendix II - Subsidiaries
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RENEWAL AND EXTENSION AGREEMENT
This Renewal and Extension Agreement (this "Agreement") dated as
of March , 199 between WEINGARTEN REALTY INVESTORS (the "Borrower"), a Texas
real estate investment trust, and BARCLAYS BANK PLC (the "Lender"), an English
banking organization acting through its New York branch, which has been
authorized to do business in the State of New York;
W I T N E S S E T H :
WHEREAS, the Borrower and the Lender executed and delivered that
certain Loan Agreement (as amended, supplemented and restated, the "Loan
Agreement") dated as of October 1, 1990;
WHEREAS, pursuant to the Loan Agreement, the Borrower made that
certain promissory note (as renewed, extended and rearranged, the "Note") of
even date therewith and in the maximum principal amount of TWENTY MILLION
DOLLARS ($20,000,000.00);
WHEREAS, the obligations of the Borrower under the Loan Agreement
and the Note are secured, among other security, by those certain instruments
(collectively and as amended, supplemented and restated, the "Deeds of Trust")
described (including recordation data) on Annex I, attached hereto and hereby
made a part hereof; reference is here made to the Deeds of Trust for a
description of the collateral for such obligations and for all other purposes;
WHEREAS, all of the liens, security interests, assignments and
other encumbrances securing such obligations, including but not limited to
those created by the Deeds of Trust, are referred to herein as the "Liens;"
WHEREAS, the Borrower and the Lender desire to (a) extend the
stated maturity of the Note; (b) ratify the Liens, and (c) confirm that the
Liens continue to secure the Note, as modified hereby, all as set forth in the
succeeding provisions of this Agreement (which shall control over any
conflicting or inconsistent recitals above).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the Borrower and the Lender hereby agree as
follows:
1. Extension. The stated maturity of the Note is hereby extended
to June 1, 199__.
2. Lien Continuation; Miscellaneous. The Liens are hereby
ratified and confirmed as continuing to secure the payment of the obligations
of the Borrower under the Loan Agreement and the Note, as modified hereby.
Nothing herein shall in any manner diminish, impair or extinguish the Note, the
Loan Agreement or the Liens.
EXHIBIT C
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The Liens are not waived. The Liens are hereby renewed and
extended and carried forward. All rights, indebtedness, covenants, agreements,
warranties, powers, terms, provisions, and conditions of the Deeds of Trust or
created thereby shall remain in full force and effect to secure the obligations
under the Loan Agreement and the Note, without waiving any right, title,
interest or priority on the part of the Lender, all of which remain unabated,
in full force and effect; provided that nothing herein is intended to reimpose
a Lien or security interest on property theretofore released pursuant to any
recorded release executed by the Lender. To the extent of any conflict between
the Note or the Loan Agreement (or any earlier modification of any of them) and
this Agreement, this Agreement shall control. Except as hereby expressly
modified, all terms of the Note and the Loan Agreement (as any of them may have
been previously modified by any written agreement) remain in full force and
effect. This Agreement (a) shall bind and benefit the Borrower and, except as
herein expressly limited, the Lender and their respective receivers, trustees,
successors and assigns (provided that the Borrower shall not assign its rights
hereunder without the express prior written consent of the Lender); (b) may be
modified or amended only by a writing signed by each party; (c) shall be
governed by and construed in accordance with the applicable laws of the State
of Texas and the United States of America from time to time in effect; (d) may
be executed in several counterparts, and by the parties hereto in separate
counterparts, and each counterpart, when executed and delivered, shall
constitute an original agreement enforceable against all who signed it without
production of or accounting for any other counterpart, and all separate
counterparts shall constitute the same agreement, and (e) embodies the entire
agreement and understanding between the parties with respect to modifications
of instruments provided for herein and supersedes all prior conflicting or
inconsistent agreements, consents and understandings relating to such subject
matter. The Borrower is an unincorporated trust organized under the Texas Real
Estate Investment Trust Act, as amended (the "Act"). The obligations and
liabilities of the Borrower created under the Loan Documents shall be binding
upon the Borrower only as a trust under the Act, and only upon the Property of
the Borrower. None of the shareholders, managers, officers, employees or agents
of the Borrower or holders of any beneficial interest in the Borrower shall
have any personal liability, in any manner whatsoever, for the payment of any
monies or the performance of the agreements made by the Borrower under the
"Loan Documents" (as such term is defined in the Loan Agreement and including
this Agreement).
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EXHIBIT C
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NOTICE PURSUANT TO TEX. BUS. & COMM. CODE Section 26.02
THE "LOAN DOCUMENTS" (AS SUCH TERM IS DEFINED IN THE LOAN AGREEMENT), INCLUDING
THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
EXECUTED effective as of the date first set forth above.
WEINGARTEN REALTY INVESTORS,
a Texas real estate investment trust
By:
Name:
Title:
BARCLAYS BANK PLC,
an English banking organization
acting through its New York
branch
By:
Name:
Title:
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EXHIBIT C
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THE STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on _______________,
199__, by ___________________________________, _______________________ of
Weingarten Realty Investors, a Texas real estate investment trust on behalf
of said trust.
NOTARY STAMP BELOW:
________________________
Notary Public in and for
the State of T E X A S
STATE OF
COUNTY OF
This instrument was acknowledged before me on __________, 199__,
by ____________________________, _______________________ of Barclays Bank PLC,
an English banking organization acting through its New York branch, on behalf
of said organization.
NOTARY STAMP BELOW:
________________________
Notary Public in and for
Annex I - Deeds of Trust ________________________
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EXHIBIT C
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DEED OF TRUST AND SECURITY AGREEMENT
THE STATE OF TEXAS
KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF HARRIS
THAT WEINGARTEN REALTY INVESTORS ("Mortgagor"), a Texas real
estate investment trust, of 2600 Citadel Plaza Drive, Houston, Harris County,
Texas 77008, in consideration of the sum of Ten Dollars ($10.00) to it in hand
paid by David J. Palans of 2425 West Loop South, Suite 1000, Houston, Harris
County, Texas 77027, hereinafter called "Trustee," the receipt of which is
hereby acknowledged, and of the further consideration, uses, purposes and
trusts herein set forth and declared, have GRANTED, SOLD and CONVEYED, and by
these presents do GRANT, SELL and CONVEY unto the Trustee, and also to the
Successor and Substitute Trustee as hereinafter provided, all of the following
described property, to wit:
All those certain tracts or parcels of land which are more
particularly described in Exhibit A which is attached hereto and incorporated
by reference herein for all purposes, together with all improvements heretofore
or hereafter placed thereon by Mortgagor, including all heating, lighting,
cooling, ventilating, air conditioning, gas, electric and other fixtures and
equipment now or hereafter attached to or used in connection with any such
improvements, all of which shall be deemed and considered a part of the realty,
also all leases, rentals, royalties, bonuses and income therefrom and together
with any after-acquired title of Mortgagor to the above described lands and
premises, and all and singular the rights and appurtenances to the same
belonging or in anywise incident or appertaining. Mortgagor is the record
owner of the above-described real estate.
The above-described property is subject to leases, if any,
covering tenants-in-possession, easements, if any, liens, if any, and all other
matters, if any, which may be of record on the date hereof, and in effect and
enforceable against the above-described property on the date hereof.
TO HAVE AND TO HOLD the above described property and premises,
together with all and singular the rights, privileges, tenements, hereditaments
and appurtenances thereto in anywise incident or belonging unto the Trustee and
to his successors or substitutes in the Trust and unto his and their assigns
forever; hereby covenanting and agreeing to forever warrant and defend the
premises aforesaid and every part thereof unto the Trustee, his successors,
substitutes and assigns, against all persons whomsoever lawfully claiming or to
claim the same or any part thereof, for and upon thee following uses, trusts,
terms and conditions, to-wit:
EXHIBIT D
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WHEREAS, Mortgagor and BARCLAYS BANK PLC ("Mortgagee"), an English
banking organization operating through its New York Branch, 222 Broadway, 10th
Floor, New York, New York County, New York 10038, are parties to that certain
Loan Agreement (as the same has been and may hereafter be amended, supplemented
and restated, the "Loan Agreement") dated as of October 1, 1990;
WHEREAS, Mortgagor has executed in favor of Mortgagee that certain
promissory note dated October 1, 1990, in the maximum principal amount of
TWENTY MILLION DOLLARS ($20,000,000.00), bearing interest at the rates therein
stated, principal and interest payable to the order of Mortgagee on the dates
stated therein and with a final scheduled maturity of June 1, 199 , which note,
together with all renewals, extensions, amendments, modifications and
replacements thereof and any other note that may be executed pursuant to the
Loan Agreement, is herein collectively called the "Note"; and
WHEREAS, this conveyance is made for the security and enforcement
of the payment of the Note and indebtedness which may arise under this Deed of
Trust or under the Loan Agreement, all of the foregoing being hereinafter
collectively referred to as the "indebtedness";
Now, should the indebtedness, both principal and interest, be
promptly paid as the same shall become due and payable and should Mortgagor
strictly comply with all the conditions, requirements and agreements herein
provided, then this conveyance shall become null and of no further force and
effect, and shall be released at the cost and expense of Mortgagor. But if
default is made in the punctual payment of the indebtedness, or any part
thereof, principal or interest, as the same shall become due and payable, or
should Mortgagor in any respect fail to promptly keep and perform any one or
more of the conditions, requirements or agreements herein provided to be kept
and performed by it, then, and in any such case, the whole amount of any
indebtedness remaining unpaid, shall, at the option of any holder or holders
thereof (or any part thereof) immediately mature and become payable; and
thereupon, or any time thereafter while the indebtedness or any part thereof
remains unpaid, it shall be the duty of the Trustee, on the request of any
holder or holders of the indebtedness or any part thereof (which request is
hereby presumed), to enforce this Trust; and after advertising the time, place
and terms of the sale for at least 21 days before the date of sale, by (a)
posting or causing to be posted written or printed notices thereof at the
courthouse door of each county wherein said real estate or any part thereof is
situated, and (b) filing or causing to be filed written or printed notices
thereof with the County Clerk of each county wherein said real estate or any
part thereof is situated, to sell the property hereby mortgaged, either as an
entirety or in parcels as the Trustee may elect (all rights to a marshalling of
assets or sale in inverse order of alienation being hereby waived) at a public
sale at auction at the courthouse of any county wherein the mortgaged
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EXHIBIT D
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real property or some part or parcel thereof may be situated (whether the parts
or parcels thereof, if any, in different counties are contiguous or not) on the
first Tuesday in any month between the hours of 10:00 a.m. and 4:00 p.m., to
the highest bidder for cash, and make due conveyance to the purchaser or
purchasers with general warranty, and the title to such purchaser or
purchasers, when so made by the Trustee, Mortgagor binds itself and its
successors, assigns, trustees and receivers to warrant and forever defend. The
provisions hereof with respect to posting, filing and giving notices of sale
are intended to comply with the provisions of Section 51.002 of the Texas
Property Code as in force and effect on January 1, 1988, and in the event the
requirement for any notice under such Section 51.002 shall be eliminated or the
prescribed manner of giving same modified by future amendment to, or adoption
of any statute superseding such Section 51.002, the requirement for such
particular notice shall be deemed stricken from or modified in this Deed of
Trust in conformity with such amendment or superseding statute, effective as of
the effective date of same. The manner herein prescribed for serving or giving
any notice, other than that to be posted or caused to be posted by the Trustee,
shall not be deemed exclusive but such notice or notices may be given in any
other manner which may be permitted by applicable law. With the money arising
from such sale, the Trustee shall pay, first, all the expenses of advertising,
sale and conveyance, including a commission of five percent to himself, and
shall then pay to the holder or holders of the indebtedness the full amount of
principal and interest due and unpaid thereon, and the balance, if any, shall
be paid to Mortgagor, its successors, assigns, trustees and receivers; and said
sale shall forever be a perpetual bar against Mortgagor, its successors,
assigns, trustees and receivers and all other persons claiming by, through or
under any of them. It is expressly agreed that all recitals in the conveyance
to the purchaser shall be conclusive evidence of the truth of the matters
therein stated, and all prerequisites to the sale shall be presumed to have
been performed. No notice of such sale or sales other than herein provided need
be given to Mortgagor or any other person.
In case of the absence, death, inability, refusal or failure of
the Trustee herein named to act, or if Mortgagee shall desire, with or without
cause, to replace the Trustee herein named, a successor and substitute may be
named, constituted and appointed by Mortgagee, without other formality than an
appointment and designation in writing; and this conveyance shall vest in him,
as Trustee, the estate and title in all said premises, property and rights, and
he shall thereupon hold, possess and execute all the title, rights, powers and
duties herein conferred upon said Trustee named, and his conveyance to the
purchaser shall be equally valid and effective; and such right to appoint a
successor or substitute Trustee shall exist with respect to any successor and
substitute Trustee as well as the initial Trustee named herein. Mortgagee or
other holders of the indebtedness or any part thereof shall have equal right to
become purchaser at any Trustee's sale, being the
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EXHIBIT D
14
highest bidder. The right of sale hereunder shall be continuing and may be
exercised successively until all indebtedness secured hereby is paid or until
all the property included herein is sold.
If foreclosure should be commenced by the Trustee, Mortgagee may
at any time before the sale direct the Trustee to abandon the sale, and may at
any time or times thereafter direct the Trustee to again commence foreclosure,
or Mortgagee may institute suit for the collection of all or any part of the
indebtedness and foreclosure of the lien of this Deed of Trust. If Mortgagee
should institute suit for collection of said indebtedness and foreclosure of
the lien of this Deed of Trust, it may at any time before the entry of final
judgment dismiss the same, and require the Trustee to sell the property in
accordance with the provisions hereof.
Mortgagor hereby ASSIGNS and TRANSFERS to Mortgagee all rents,
revenues and income from the mortgaged property, including all rents now due or
which may hereafter become due under all leases thereof, whether written or
verbal, now existing or hereafter made, as additional security for the
indebtedness secured hereby, and Mortgagee is given a prior and continuing lien
thereon. Mortgagor hereby appoints Mortgagee as its attorney to collect said
rents, revenues and income with or without suit, and apply same, less expenses
of collection, to said indebtedness, in such manner as Mortgagee may elect;
provided that except for collection of rents more than one month in advance of
when they become due and for the modification or cancellation of any lease
(subject to the provisions of paragraph 6 of the Addendum) without the written
consent of Mortgagee, Mortgagor may exercise all acts of ownership and collect
all rents, revenues and income as if this instrument had not been executed
until a default occurs under the provisions of this instrument. Mortgagee does
not assume and shall not be liable in respect of any obligation of the lessor
under any of said leases, and no liability shall attach to Mortgagee for
failure or inability to collect any rents, revenues and incomes hereby
assigned. Mortgagor shall not collect any rents under any of said leases more
than one month in advance of the time when they become due and will not modify
or cancel any of said leases (subject to the provisions of paragraph 6 of the
Addendum) without the express prior written consent of Mortgagee.
Mortgagor covenants and agrees that so long as any of the
indebtedness remains unpaid they shall and will at their own cost and expense,
keep the property and premises herein described in good repair and condition,
and pay and discharge as they are or may become payable, and before they become
delinquent, any and all taxes and assessments that are or may become payable
thereon under any law, ordinance, or regulation, whether made by Federal,
State, Municipal or other lawful authority, and shall keep said property
insured against loss by fire, storm, gas explosion (if gas be used on said
premises) and other hazards and contingencies as may be required (both as to
amount and type of coverage) by Mortgagee, or other holder or holders of said
indebtedness, in a company or
-4-
EXHIBIT D
15
companies approved by Mortgagee, or other holder or holders of said
indebtedness, to whom the loss, if any, shall be payable and by whom the
policies shall be kept and shall promptly pay all bills for labor and materials
incurred in connection with the mortgaged property and shall never permit to be
fixed against the mortgaged property any lien even though inferior to the lien
hereof. Due proof of payment before delinquency of all such taxes, assessments
and insurance premiums shall be furnished by Mortgagor to Mortgagee promptly
upon the making of such payments. And in case of default by Mortgagor in the
performance of any of the foregoing stipulations, and without waiving the right
to accelerate the maturity of the indebtedness secured hereby because of such
default, the same may be performed by Mortgagee, or any other holder or holders
of said indebtedness or any part thereof for the account and at the expense of
the Mortgagor and any and all expenses incurred and paid in so doing shall be
payable by Mortgagor to Mortgagee, or other holder or holders of the
indebtedness or any part thereof incurring such expense, on demand with
interest at the rate of ten percent per annum from the date when the same was
so incurred or paid, and shall stand secured by and under this Deed of Trust in
like manner with the other indebtedness herein mentioned, and the amount and
nature of such expenses and time when paid shall be held fully established by
the affidavit of the Mortgagee, or other holder or holders of said indebtedness
or any part thereof or of his or their agent, or by certificate of any Trustee
acting hereunder.
Should Mortgagor become insolvent or bankrupt; or should a
receiver of its property be appointed; or should Mortgagor intentionally damage
or attempt to remove any improvements upon said mortgaged real estate; or
should it be discovered after the execution and delivery of this Deed of Trust
that there is a defect in the title of or a lien or encumbrance of any nature
on said property prior to the lien hereof in favor of or for the benefit of any
person other than Mortgagee, or in case of an error or defect in the Loan
Agreement, the Note or this Deed of Trust or in the execution or the
acknowledgement thereof, or if a homestead claim be set up to said property or
any part thereof adverse to this Trust, and if Mortgagor shall fail for thirty
days after demand by Mortgagee, or other holder or holders of said
indebtedness, to correct such defects in the title or remove any such lien or
encumbrance of homestead claim, or to correct any error in said notes or this
Deed of Trust or its execution; then, upon any such default, failure or
contingency Mortgagee, or other holder or holders of said indebtedness, or any
part thereof shall have the option or right, without notice or demand, to
declare all or said indebtedness then remaining unpaid, immediately due and
payable and may immediately or at any time thereafter foreclose this Deed of
Trust by the power of sale herein contained or by suit, as such Mortgagee, or
other holder or holders of said indebtedness may elect.
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EXHIBIT D
16
It is expressly agreed that any indebtedness at any time secured
hereby may be extended, rearranged or renewed, and that any part of the
security herein described may be waived or released without in anywise
altering, varying or diminishing the force, effect or lien of this Deed of
Trust; and this Deed of Trust shall continue as a first lien on all said lands
and premises and other property and rights covered hereby and not expressly
released, until all sums with interest and charges hereby secured are fully
paid; and no other security now existing or hereafter taken to secure the
payment of said indebtedness or any part thereof shall in any manner be
impaired or affected by the executing of this Deed of Trust; and no security
subsequently taken by Mortgagee or other holder or holders of said indebtedness
shall in any manner impair or affect the security given by this Deed of Trust;
and all security for the payment of said indebtedness of any part thereof shall
be taken, considered and held as cumulative.
If any of the terms or provisions hereof or of any notes or other
evidence of the indebtedness secured hereby is susceptible of being construed
as binding or obligating Mortgagor or any other persons or concerns obligated,
either primarily or conditionally, for the payment of indebtedness secured
hereby, under any circumstances or contingencies whatsoever, to pay interest
in excess of that authorized by law, it is agreed that such terms or provisions
are a mistake in calculation or wording and, notwithstanding the same, it is
expressly agreed that neither Mortgagor nor any other person or concern
obligated in any manner on any such indebtedness shall ever be required or
obligated under the terms hereof, or under the terms of any such notes or other
evidence of the indebtedness or otherwise, to pay interest in excess of that
authorized by law.
Mortgagor agrees for itself and any and all persons or concerns
claiming by, through or under it, that, if they or any one or more of them
shall hold possession of the above-described property or any part thereof
subsequent to foreclosure hereunder, they, or the parties so holding
possession, shall become and be considered as tenants at will of the purchaser
or purchasers at such foreclosure sale; and any such tenant failing or refusing
to surrender possession upon demand shall be guilty of forcible detainer and
shall be liable to such purchaser or purchasers for reasonable rental on said
premises, and shall be subject to eviction and removal, forcible or otherwise,
with or without process of law, and all damages which may be sustained by any
such tenant as a result thereof being hereby expressly waived.
Mortgagor covenants and represents that the property hereinabove
mentioned and conveyed to the Trustee herein forms no part of any property
owned, used or claimed by it as a residence or a business homestead, or as
otherwise exempt from forced sale under the laws of the State of Texas.
-6-
EXHIBIT D
17
Mortgagor will not at any time insist upon or plead or in any
manner whatever claim or take the benefit or advantage of any stay or extension
law now or at any time hereafter in force in any locality where the mortgaged
property or any part thereof may or shall be situated nor will it claim, take
or insist on any benefit or advantage from any law, now or hereafter in force,
providing for the valuation or appraisement of the mortgaged property or any
part thereof before any sale or sales thereof to be made pursuant to any
provision herein contained, or to the decree of any court of competent
jurisdiction, nor after any such sale or sales will they claim or exercise any
right conferred by any law now or at any time hereafter in force to redeem the
property so sold or any part thereof, and it hereby expressly waives all
benefit and advantage of any such law or laws, and waives the appraisement of
the mortgaged property or any part thereof, and it covenants that it will not
hinder, delay or impede the execution of any power herein granted and delegated
to the Trustee, but that it will suffer and permit the execution of every such
power as though no such law or laws had been made or enacted.
Without limiting any of the provisions of this Deed of Trust,
Mortgagor, as Debtor, and referred to in this paragraph as "Debtor", expressly
GRANTS unto Mortgagee as Secured Party (and in this paragraph called "Secured
Party"), a security interest in all the properties hereinabove described
(including both those now and those hereafter existing) to the full extent that
such properties may be subject to the Texas Uniform Commercial Code (the
"UCC"). The security interest granted hereby also covers and includes all
contract rights, general intangibles and accounts (excluding, of course, bank
deposits) with respect to said properties and all products and proceeds of said
properties (said properties, contract rights, products and proceeds being
hereinafter collectively referred to as the "Collateral" for the purposes of
this paragraph). Debtor covenants and agrees with Secured Party that:
(a) In addition to and cumulative of any other remedies granted
in this Deed of Trust to Secured Party or Trustee, Secured Party or Trustee
may, in event of default, proceed under the UCC as to all or any part of the
Collateral and shall have and may exercise with respect to the Collateral all
the rights, remedies and powers of a secured party under the UCC, including,
without limitation, the right and power to sell, at public or private sale or
sales, or otherwise dispose of, lease or use the Collateral and any part or
parts thereof in any manner authorized or permitted under the UCC after default
by a debtor, and to apply the proceeds thereof toward payment of any costs and
expenses and attorney's fees and legal expenses thereby incurred by Secured
Party, and toward payment of the indebtedness in such order or manner as
Secured Party may elect. Among the rights of Secured Party in the event of
default, and without limitation, Secured Party shall have the right to take
possession of the Collateral and to enter upon any premises where the same may
be situated for such purpose without being deemed guilty of trespass and
without liability for
-7-
EXHIBIT D
18
damages thereby occasioned, and to take any action deemed necessary or
appropriate or desirable by Secured Party, at its option and in its discretion,
to repair, refurbish or otherwise prepare the Collateral for sale, lease or
other use or disposition as herein authorized. To the extent not prohibited by
law, Debtor expressly waives any notice of sale or other disposition of the
Collateral and any other rights or remedies of a debtor or formalities
prescribed by law relative to sale or disposition of the Collateral or exercise
of any other right or remedy of Secured Party existing after default hereunder;
and to the extent any such notice is required and cannot be waived, Debtor
agrees that if such notice is mailed, postage prepaid, to Debtor at the address
designated at the beginning of this Deed of Trust at least five days before the
time of the sale or disposition, such notice shall be deemed reasonable and
shall fully satisfy any requirement for giving of said notice.
(b) Secured Party is expressly granted the right, at its option,
to transfer at any time to itself or its nominee the Collateral, or any part
thereof, and to receive the monies, income, proceeds or benefits attributable
or accruing thereto and to hold the same as security for the indebtedness or to
apply it on the principal and interest or other amounts owing on any of the
indebtedness, whether or not then due, in such order or manner as Secured Party
may elect. All rights to marshalling of assets of Debtor, including any such
rights with respect to the Collateral, are hereby waived.
(c) All recitals in any instrument of assignment or any other
instrument executed by Secured Party incident to sale, transfer, assignment,
lease or other disposition or use of the Collateral or any part thereof
hereunder shall be full proof or the matters stated therein, and no other proof
shall be required to establish full legal propriety of the sale or other action
or of any fact, condition or thing incident thereto, and all prerequisites of
such sale or other action and of the fact, condition or thing incident thereto
shall be presumed conclusively to have been performed or to have occurred.
(d) Secured Party may require Debtor to assemble the Collateral
and make it available to Secured Party at a place to be designated by Secured
Party that is reasonably convenient to both parties. All expenses of retaking,
holding, preparing for sale, lease or other use or disposition, selling,
leasing or otherwise using or disposing of the Collateral and the like which
are incurred or paid by Secured Party as authorized or permitted hereunder,
including also all attorneys' fees, legal expenses and costs, shall be added to
the indebtedness secured by this Deed of Trust and Debtor shall be liable
therefor.
(e) Should Secured Party elect to exercise its rights under the
UCC as to part of the personal property or fixtures described herein, this
election shall not preclude Secured Party or Trustee from exercising the rights
and remedies granted by the preceding
-8-
EXHIBIT D
19
paragraphs of this Deed of Trust as to the remaining property or fixtures.
(f) Secured Party may, at its election, at any time after
delivery of this Deed of Trust, sign one or more copies hereof in order that
such copies may be used as a financing statement under the UCC. Said signature
by Secured Party may be placed between the last sentence of this Deed of Trust
and Debtor's acknowledgment or may follow Debtor's acknowledgment. Secured
Party's signature need not be acknowledged and is not necessary to the
effectiveness hereof as a deed of trust, mortgage, assignment, pledge or
security agreement.
(g) So long as any amount remains unpaid on any indebtedness
described herein, Debtor will not execute and there will not be filed in any
public office any financing statement or statements affecting the Collateral
other than financing statements in favor of Secured Party hereunder, unless
express prior written specific consent and approval of Secured Party shall have
been first obtained.
(h) Secured Party is authorized to file in any jurisdiction where
Secured Party deems it necessary, a financing statement or statements, and at
the request of Secured Party, Debtor will join Secured Party in executing one
or more financing statements pursuant to the UCC in form satisfactory to
Secured Party, and will pay the cost of filing or recording this Deed of Trust
as a financing statement, in all public offices at any time and from time to
time whenever filing or recording of any financing statement or of this Deed of
Trust is deemed by Secured Party to be necessary or desirable.
Debtor further warrants and represents to Secured Party that,
except for the security interest granted hereby in the Collateral and other
security interests in the Collateral in favor of Secured Party, and except as
stated herein or in the Exhibit attached hereto, Debtor is the owner and holder
of the Collateral, free of any adverse claim, security interest or encumbrance,
and Debtor agrees to defend the Collateral against all claims and demands of
any person at any time claiming the same or any interest therein. Debtor
further warrants and represents that, except as stated herein or in the
Exhibits attached hereto, they have not heretofore signed any financing
statement, and no financing statement signed by Debtor is now on file in any
public office except those statements true and correct copies of which have
been delivered to Secured Party.
The lien of this Deed of Trust additionally secures any and all
indebtedness which may arise under the Loan Agreement, now existing or
hereafter arising, including, but not limited to, the Term Note which is
described in the Loan Agreement, in the event the Term Note is executed by
Mortgagor, and all of the foregoing shall also be deemed to constitute the
"indebtedness" referred to
-9-
EXHIBIT D
20
in this Deed of Trust. Certain of the indebtedness secured hereby is a
revolving credit loan under which, within the amount, limits and during the
time period which are set forth in the Loan Agreement, it is contemplated that
the Mortgagor may borrow, repay and reborrow from time to time.
The Addendum which is attached hereto constitutes a part of this
Deed of Trust.
EXECUTED this __________________, 199__.
WEINGARTEN REALTY INVESTORS,
a Texas real estate investment trust
By: _________________________________
Name: _______________________________
Title: ______________________________
THE STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on ____________, 199__
by _______________________________________, ______________________________ of
Weingarten Realty Investors, a Texas real estate investment trust, on behalf
of said trust.
NOTARY STAMP BELOW: _____________________________
Notary Public in and for
the State of T E X A S
-10-
EXHIBIT D
21
ADDENDUM TO DEED OF TRUST
The following provisions constitute an Addendum to a certain Deed
of Trust and Security Agreement, dated as of 199 (the "Deed of Trust"),
from Weingarten Realty Investors ("Mortgagor") to , as Trustee, for
the use and benefit of Barclays Bank PLC ("Mortgagee"):
(1) That notwithstanding other provisions of this Mortgage, all
insurance proceeds recovered by Mortgagee on account of damage or destruction
to the premises (and all proceeds of any condemnation award recovered by
Mortgagee for any building or equipment taken or damaged), less the reasonable
cost, if any, to Mortgagee of such recovery, shall, upon the written request of
Mortgagor, be applied by Mortgagee to the payment of the cost of repairing,
restoring or rebuilding the property so damaged or destroyed or taken
(hereinafter referred to as the "work") and shall be paid out from time to time
to Mortgagor as the work progresses, but subject to the following conditions:
(a) In the event the cost of the work, estimated by Mortgagor,
shall exceed $10,000, the work shall be in charge of an architect or engineer
(who may be an employee of Mortgagor) and before Mortgagor commences any work,
other than temporary work to protect property or prevent interference with
business, Mortgagee shall have approved the plans and specifications for the
work to be submitted by Mortgagor, which approval shall not be unreasonably
withheld or delayed, and shall be given or deemed given if such plans and
specifications satisfy the requirements of any lease which shall have been
assigned to Mortgagee as additional security for the Note.
(b) Each request for payment shall be made on seven days' prior
notice to Mortgagee and shall be accompanied by a certificate to be made by
such architect or engineer, if one be required under clause (a) of this
Article, otherwise by an executive or fiscal officer of Mortgagor, stating (i)
that all of the work completed has been done in compliance with the approved
plans and specifications, if any be required under said clause (a); (ii) that
the sum requested is justly required to reimburse Mortgagor for pavements by
Mortgagor to, or is justly due to, the contractor, subcontractor,
materialmen, laborers, engineers, architects or other persons rendering
services or materials for the work (giving a brief description of such services
and materials) and that when added to all sums previously paid out by Mortgagee
does not exceed the value of the work done to the date of such certificate, and
(iii) that the amount of such proceeds remaining in the hands of Mortgagee will
be sufficient on completion of the work to pay for the same in full (giving in
such reasonable detail as Mortgagee may require an estimate of the cost of such
completion).
EXHIBIT D
22
(c) Each request shall be accompanied by waivers of lien
satisfactory to Mortgagee, in the exercise of reasonable judgment, covering
that part of the work for which payment or reimbursement is being requested and
by a search prepared by a title company or licensed abstractor or by other
evidence satisfactory to Mortgagee, in the exercise of reasonable judgment,
that there has not been filed with respect to the premises any mechanics' or
other lien or instrument for the retention of title in respect of any part or
the work nor discharged or bonded of record.
(d) There shall be no default on the part of Mortgagor under this
Deed of Trust or the Loan Agreement.
(e) The request for any payment after the work has been completed
shall be accompanied by a copy of any certificate or certificates required by
law to render occupancy of the premises legal.
Upon the completion of the work and payment in full therefor, or
upon any failure on the part of Mortgagor promptly to commence to continue the
work (except in the case of brief discontinuances of ten days or less, or
in case such commencement or continuance is prevented by fire, strike, act of
God, shortage of labor or material, or other condition beyond Mortgagor's
control) or at any time upon request by Mortgagor, Mortgagee will apply the
amount of any such proceeds then or thereafter in the hands of Mortgagee to the
payment of any indebtedness secured by this Deed of Trust (to be applied first
to accrued interest, then to the last installments, without prepayment charge
or penalty); provided that nothing herein contained shall prevent Mortgagee
from applying at any time the whole or any part of such proceeds to the curing
of any default under this Deed of Trust or the Loan Agreement (if such default
shall have remained uncured within such time, if any, after notice as is
provided in such other instrument).
(2) Mortgagor and any tenant or lessee under any lease, the
interest of the landlord or lessor under which has been collaterally assigned
to Mortgagee as additional security for the Note ("Assigned Lease") who has
such rights under such lessee's Assigned Lease, shall have the right, at its
own expense, to make such alterations, additions or changes in the improvements
on the mortgaged premises, both the interior and exterior (including without
limitation alterations and plumbing and electrical wiring), as it finds
convenient for its purposes, except that (a) such alterations, additions or
changes shall not structurally weaken the mortgaged buildings; (b) any exterior
alterations shall conform with the architecture of the mortgaged buildings;
(c) such alterations, additions or changes shall not diminish the value of the
mortgaged building; (d) all work will be done in a good and workmanlike manner,
and (e) such construction shall comply with all applicable building codes,
rules, regulations and ordinances and any provisions of any Assigned Lease or
restrictive covenants applicable to the premises affecting construction of such
alterations, additions and changes.
EXHIBIT D
23
(3) This Deed of Trust is subordinate to those certain leases
(the "Assigned Leases") heretofore entered into between Mortgagor as landlord
or lessor, and certain parties as lessee or tenant, which leases cover portions
of the improvements situated on the land described herein and which leases are
assigned by this instrument to Mortgagee as additional security for the Note.
Notwithstanding any other provision herein, exercise by any lessee of any right
granted to such lessee under an Assigned Lease (including, without limiting the
generality of the foregoing, the right to make alterations or additions in such
lessee's premises) or performance by Mortgagor of any duty or obligation which
it may have as lessor under any Assigned Lease (including, without limiting the
generality of the foregoing, use of fire insurance proceeds or condemnation
proceeds for repair or restoration of any improvements leased under any
Assigned Lease, but not including the obligations, if any, to pay over to any
lessee any fire insurance proceeds or condemnation proceeds for the benefit of
the property or improvements of lessee) shall not be deemed to be a violation
of any provisions of this Mortgage, provided, of course, the provisions of
Paragraph 1 of this Addendum are complied with; and the provisions of this Deed
of Trust shall be deemed to permit exercise of any such right or performance of
any such obligation.
(4) In the event of a failure by Mortgagor in the due observance
or performance of any covenant contained in this Deed of Trust, other than a
failure in the payment of any installment of principal or interest on the Note,
the Note shall not be deemed to be due and payable by reason of such failure
and such failure shall not be deemed to constitute a default thereunder unless
such failure continue for a period of 15 days after the giving of written
notice of such failure by Mortgagee to Mortgagor.
(5) This Deed of Trust also specifically secures the performance
(other than by Mortgagee) of each and every covenant, agreement and undertaking
contained in the Loan Agreement and in those certain deeds of trust executed
pursuant to the Loan Agreement; and Mortgagor hereby expressly agrees that any
default (other than by Mortgagee) under the terms of the respective deeds of
trust securing the Note, including but not limited to any default in the
payment when due or any part of the indebtedness described therein, or any
default (other than by Mortgagee) in the performance or satisfaction of any
covenant, agreement, undertaking or obligation contained in the Loan Agreement
if same is not cured within such time, if any, after notice as is provided in
such other instrument shall, for all purposes, constitute a default under the
provisions of this Deed of Trust and shall authorize the Mortgagee or other
holder or holders of the indebtedness to proceed as is the case of default in
the payment when due of such indebtedness. The term "deed of trust" as used in
this Paragraph and in any other instrument securing the indebtedness hereby
secured shall be deemed to include a mortgage in any form.
(6) Notwithstanding anything contained herein to the contrary,
consent of Mortgagee shall not be required for Mortgagor to execute any new
leases, or amend any existing leases, or
EXHIBIT D
24
terminate any leases, provided same is done in the ordinary course of
Mortgagor's business.
(7) Reference is hereby made to the Loan Agreement for all
purposes, including Mortgagor's right to prepay the indebtedness and obtain
partial release of the collateral.
(8) Notwithstanding anything contained herein to the
contrary, before any foreclosure sale pursuant to the terms and provisions of
this Deed of Trust, Mortgagee or any person chosen by it, at least 21 days
preceding the date of said sale, shall serve written notice of such proposed
sale by certified mail on each debtor obligated to pay the indebtedness and
obligations herein secured in accordance with the records of Mortgagee. Service
of such notice to each debtor shall be completed upon deposit of the notice,
enclosed in a postpaid wrapper, properly addressed to each debtor at the most
recent address as shown by the records of Mortgagee, at a post office or
official depository under the care and custody of the United States Postal
Service. The affidavit of any person having knowledge of the facts to the
effect that such service was completed shall be prima facie evidence of the
fact of service.
Notice of the sale shall comply with all requirements of Section
51.002 of the Texas Property Code (as amended from time to time) and all other
applicable provisions of law. To the extent required by Section 51.002 of the
Texas Property Code (as amended from time to time), notice of the sale must
include a statement of the earliest time at which the sale will occur. The sale
must begin at the time stated in the notice of sale or not later than three
hours after that time.
(9) With respect to the incurrence of certain liabilities
hereunder and the making of certain agreements by Mortgagor as herein stated,
such incurrence of liabilities and such agreements shall be binding upon
Mortgagor only as a trust formed under the Texas Real Estate Investment Trust
Act pursuant to that certain Restated Declaration of Trust dated March 23,
1988, and only upon the assets of Mortgagor. No Trust Manager or officer or
other holder of any beneficial interest in the Trust shall have any personal
liability for the payment of any indebtedness or other liabilities incurred by
Mortgagor hereunder or for the performance of any agreements made by Mortgagor
hereunder, nor for any other act, omission or obligation incurred by Mortgagor
or by the Trust Managers except, in the case of a Trust Manager, any liability
arising from such Trust Manager's own willful misfeasance or malfeasance or
negligence.
EXHIBIT D
25
NOTICE PURSUANT TO SECTION 26.02
TEXAS BUSINESS AND COMMERCE CODE.
THE "LOAN DOCUMENTS" (AS SUCH TERM IS DEFINED IN THE LOAN AGREEMENT, INCLUDING
THIS DEED OF TRUST) REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
Signed for identification by the undersigned officer of Mortgagor:
WEINGARTEN REALTY INVESTORS
By: ________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT D
26
GUARANTY JOINDER
[Letterhead of new Subsidiary]
__________, 199__
Barclays Bank PLC
2425 West Loop South, Suite 1000
Houston, Texas 77027
Attention: Manager
Ladies and Gentlemen:
Weingarten Realty Investors (the "Borrower") and Barclays Bank PLC
executed and delivered that certain Loan Agreement (as amended, supplemented
and restated, the "Loan Agreement") dated as of October 1, 1990. Any term
defined in the Loan Agreement and used in this letter shall have the meaning
ascribed to it in the Loan Agreement.
The Borrower acquired an interest in the undersigned Corporation
(the "New Subsidiary") within the last 30 days. The New Subsidiary is directly
or indirectly wholly owned by the Borrower. For good and valuable
consideration, the receipt of which is hereby acknowledged, the New Subsidiary
hereby ratifies, adopts and joins in the Guaranty as if a signatory thereto and
agrees to be bound under the terms of the Guaranty. This letter is a Loan
Document.
Very truly yours,
_________________________,
a_____________________
By: _________________________
Name: _______________________
Title: ______________________
EXHIBIT I
27
SUBSIDIARIES OF WEINGARTEN REALTY INVESTORS
1. Weingarten/Lubbock, Inc., a Texas corporation
2. Weingarten/Southgate, Inc. (formerly WRI/DeVargas, Inc.), a Texas corporation
3. Weingarten/Lufkin, Inc. (formerly WRI/Central Park North, Inc.), a Texas corporation
4. Weingarten/Tennessee, Inc., a Texas corporation
5. Weingarten/Arkansas, Inc., a Texas corporation
6. Weingarten/Jones Road Company, Inc., a Texas corporation
7. Weingarten/Maine, Inc., a Texas corporation
8. Weingarten/Oklahoma, Inc., a Texas corporation
9. WRI/Bay City, Inc., a Texas corporation
10. Weingarten Railspur, Inc., a Texas corporation
11. Amarillo Centers, Inc., a Texas corporation
12. Cypress/Westfield, Inc., a Texas corporation
13. Weingarten/Lufkin Theatre, Inc., a Texas corporation
14. Weingarten/New York, Inc., a Texas corporation
15. Weingarten/Village Arcade, Inc., a Texas corporation
16. WRI/Lathrop, Inc., a Texas corporation
17. WRI/Nederland, Inc., a Texas corporation
18. WRI/Puckett, Inc., a Texas corporation
19. WRI/SW Park II, Inc., a Texas corporation
20. Mesquite/Town East, Inc., a Texas corporation
21. Weingarten Realty Management Corporation, a Texas corporation
APPENDIX II