FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (the
"Amendment"), effective as of January 1, 1997, is by and among Xxxxxxxxxx
Realty Investors, a Texas real estate investment trust (the "Borrower"),
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Texas Commerce Bank National Association, a national banking association (in
its individual capacity, "TCB"), NationsBank of Texas, N.A., a national
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banking association, ("NationsBank"), Signet Bank (formerly Signet
Bank/Virginia) ("Signet"), Commerzbank, A.G., a domestic branch of a bank
organized under the laws of Germany ("Commerzbank"), The Sumitomo Bank,
Limited, a Japanese banking corporation ("Sumitomo") and any bank that may
hereafter become a party to the Credit Agreement (as defined below) in
accordance with the provisions thereof (each individually, a "Bank" and
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collectively, the "Banks"), TCB as Agent hereunder (in such capacity, the
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"Agent") for the Banks hereunder, NationsBank, in its capacity as Documentary
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Agent hereunder, and Commerzbank, in its capacity as Co-Agent hereunder.
WHEREAS, the Agent, the Documentary Agent, the Co-Agent, the Banks and
the Borrower have entered into that certain Amended and Restated Credit
Agreement dated and effective as of November 21, 1996 (as it may be hereafter
amended or otherwise modified and in effect from time to time, the "Credit
Agreement");
WHEREAS, the Banks and the Borrower wish to amend the Credit Agreement to
permit the Borrower to request and maintain from time to time, three seven
(7) day Interest Periods in effect at any one time with respect to Borrowings
under the Notes, instead of limiting such Borrowings to two such seven (7) day
Interest Periods at any one time;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the Banks, the Agent, the
Documentary Agent, the Co-Agent and the Borrower hereby agree as follows:
1.01 AMENDMENT. Section 2.02(a) of the Credit Agreement is hereby
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amended by deleting the proviso in the third sentence thereof, and
substituting in lieu thereof the following:
;provided that, there shall not be more than three (3) Interest Periods for a
period of seven (7) days in effect at any one time with respect to any Note,
and no more than seven (7) Interest Periods in effect in the aggregate at any
one time with respect to any Note.
1.02. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall
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become effective upon execution of this Amendment by each of the Agent, the
Documentary Agent, the Co-Agent, each Bank and the Borrower on the signature
pages hereof, and receipt by the Agent of such executed signature pages.
1.03. REPRESENTATIONS OF BORROWER. The Borrower hereby represents
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and warrants to the Banks the following:
(a) All of the representations and warranties contained in Article V
of the Credit Agreement are true and correct on and as of the date hereof and
will be true and correct after giving effect to this Amendment.
(b) No event which constitutes a Default or an Event of Default under
the Credit Agreement, as amended hereby, has occurred and is continuing, or
would result from the execution and delivery of this Amendment.
1.04 CAPITALIZED TERMS. The capitalized terms used herein which are
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defined in the Credit Agreement and not otherwise defined herein shall have
the meaning specified therein.
1.05 RATIFICATION. The Credit Agreement, as hereby amended, is in
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all respects ratified and confirmed, and all other rights and powers created
thereby or thereunder shall be and remain in full force and effect.
1.06 COUNTERPARTS. This Amendment may be executed in several
------------
counterparts, and each counterpart, when so executed and delivered, shall
constitute an original instrument, and all such separate counterparts shall
constitute but one and the same instrument.
1.07. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
1.08. PRIOR AGREEMENTS. THE CREDIT AGREEMENT, THE NOTES AND THIS
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AMENDMENT CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(A) OF THE
TEXAS BUSINESS & COMMERCE CODE, AND REPRESENT THE FINAL AGREEMENT AMONG 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 AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
XXXXXXXXXX REALTY INVESTORS
By:_____________________________________
Title:____________________________________
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, AS AGENT, AND INDIVIDUALLY AS A BANK
By:_____________________________________
Title:____________________________________
NATIONSBANK OF TEXAS, N.A., AS
Documentary Agent, and INDIVIDUALLY AS A BANK
By:_____________________________________
Title:____________________________________
COMMERZBANK, A.G., AS CO-AGENT, AND
INDIVIDUALLY AS BANK
By:_____________________________________
Title:____________________________________
SIGNET BANK
By:_____________________________________
Title:____________________________________
THE SUMITOMO BANK, LIMITED
By:_____________________________________
Title:____________________________________
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APPROVED AND CONSENTED
TO BY EACH OF THE
FOLLOWING GUARANTORS:
WEINGARTEN/LUFKIN, INC.
By:_____________________________________
Title:____________________________________
WEINGARTEN/NOSTAT INC.
By:_____________________________________
Title:____________________________________
XXXXXXXXXX REALTY
MANAGEMENT COMPANY
By:_____________________________________
Title:____________________________________
WRI/POST OAK, INC.
By:_____________________________________
Title:____________________________________
Signature page of First Amendment
to Amended and Restated Credit
Agreement effective January 1, 1997
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated
and effective as of September 12, 1997, is by and among Xxxxxxxxxx Realty
Investors, a Texas real estate investment trust (the "Borrower") and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association (in its
individual capacity, "TCB"), NationsBank of Texas, N.A., as Syndication Agent
(in its individual capacity, "NationsBank"), Signet Bank ("Signet"),
Commerzbank, A.G., a domestic branch of a bank organized under the laws of
Germany ("Commerzbank"), The Sumitomo Bank, Limited, a Japanese banking
corporation ("Sumitomo"), and Bank of America National Trust and Savings
Association, a national banking association, a Documentation Agent (In its
individual capacity, "Bank of America") and each other bank which is a party
to the Credit Agreement (collectively, with TCB, NationsBank, Bank of America,
Signet, Commerzbank and Sumitomo, the "Banks") and TCB as Agent for the Banks
(in such capacity, the "Agent").
WHEREAS, the Agent, TCB, NationsBank, Signet, Commerzbank, Sumitomo,
and the Borrower have entered into that certain Credit Agreement dated and
effective as of November 21, 1996 (as it has been and may be hereafter amended
or otherwise modified and in effect from time to time, the "Credit
Agreement");
WHEREAS, the Agent, TCB, NationsBank, Signet, Commerzbank, Sumitomo
and the Borrower have entered into that certain First Amendment to Credit
Agreement dated and effective as of January 1, 1997; and;
WHEREAS, the Banks and the Borrower wish to amend the Credit
Agreement to revise the principal amount of the Commitments, and to add Bank
of America as a signatory and party thereto, and as Documentation Agent;
provided that, the Documentation Agent shall have no responsibilities in its
capacity as such;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the Banks, the Agent and the
Borrower agree as follows:
SECTION 1. AMENDMENTS
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(a) On and after the date of this Amendment Bank of America
shall be, and shall be deemed to be a party to the Credit Agreement, and the
term "Banks" shall include Bank of America for all purposes of the Credit
Agreement and each other Loan Document and, accordingly, Bank of America shall
have the rights and obligations of a Bank under the Loan Documents. Since
Bank of America is deemed to be a party to the Credit Agreement, the mechanism
set out in Section 10.08 shall not be applicable to the addition of Bank of
America hereunder; however, such mechanism shall be applicable as to any
future assignment (or participation) of any Bank's rights or obligations under
the Credit Agreement. After giving effect to the addition of Bank of America
as a Bank under the Loan Documents, each Bank (including the Issuing Bank)
shall be deemed, without further action by any party to this Amendment, to
have sold to each other Bank, and each other Bank shall be deemed, without
further action by any party to this Amendment, to have purchased from the
other Banks, an assignment of a portion of each Note and Advance, and a
participation in each Letter of Credit issued and outstanding as of the date
of this Amendment, if any, to the effect that each Bank shall hold an interest
in such Note and Advance, and in each Letter of Credit and in the
reimbursement obligations of Borrower due in respect of drawings made under
such Letter of Credit equal to such Bank's Pro Rata Percentage as provided in
subsection 1(b) below.
(b) On the date of this Amendment, each Bank's Commitment shall
equal the principal amount shown on Exhibit A, attached hereto, and the
Borrower shall issue to each Bank a Note in an original principal amount equal
to the principal amount set forth on Exhibit A; provided that Notes so issued
to each of TCB, NationsBank, Signet, Commerzbank and Sumitomo are issued in
substitution for existing Notes issued by the Borrower on November 21, 1996 to
such Banks (the "Original Notes"), and not in extinguishment of the
obligations of the Borrower under the Original Notes, and all amounts
outstanding or otherwise due and payable under such Original Notes, to the
extent of each Bank's Commitment on and as of the date hereof, including
without limitation, principal of, accrued and unpaid interest on, and fees and
expenses remaining unpaid, shall not be deemed to have been paid as a result
of substitution of such Original Notes.
(c) Section 2.02(c) of the Credit Agreement is hereby amended by
deleting the words "dated as of the Closing Date" from said Section 2.02(c)
and substituting in lieu thereof the words:
dated as of the date of the Second Amendment, dated as of September 12, 1997,
by and among the Agent, the Borrower and the Banks, parties to this Agreement,
SECTION 2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This
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Amendment shall become effective upon satisfaction of the following
conditions:
(a) Each Bank shall have received on or before the effective
date of this Amendment (the "Effective Date") the Notes described in Section
1(b) of this Amendment, executed by the Borrower, and the Amendment, duly
executed by the Borrower, the Agent and the Banks, and acknowledged by each
Guarantor;
(b) Each Bank shall have delivered to the Agent, for delivery by
the Agent to the Borrower, its Original Note; and
(c) Each Bank shall have received a legal opinion from counsel
for the Borrower, in form and substance satisfactory to the Banks.
SECTION 3. REPRESENTATIONS OF BORROWER. The Borrower hereby represents and
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warrants to the Banks the following:
(a) All of the representations and warranties contained in
Article V of the Credit Agreement are true and correct on and as of the date
hereof and will be true and correct after giving effect to this Amendment.
(b) No event which constitutes a Default or an Event of Default
under the Credit Agreement, as amended hereby, has occurred and is continuing,
or would result from the execution and delivery of this Amendment.
(c) The Borrower has the power and authority under the Act to
execute and deliver this Amendment and to perform its obligations under the
Credit Agreement, as amended hereby, and under the Notes; and all such action
has been duly authorized by all necessary proceeding on its part. Each of the
Credit Agreement, this Amendment and each Note has been duly and validly
executed and delivered by the Borrower and constitute a valid and legally
binding obligation of the Borrower enforceable in accordance with its terms,
except as limited by Debtor Laws.
(d) The Borrower has delivered to Bank of America true, correct
and complete copies of each of the Loan Documents (including copies of the
outstanding Letters of Credit), the Interest Rate Agreements, and such other
information as Bank of America has requested.
SECTION 4. NOTICES. Bank of America hereby designate its current
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address for notices pursuant to Section 10.02 of the Credit Agreement as
follows:
Bank of America National Trust and Savings Association
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx III
SECTION 5. CAPITALIZED TERMS. The capitalized terms used herein
-----------------
which are defined in the Credit Agreement and not otherwise defined herein
shall have the meanings specified therein.
SECTION 6. RATIFICATION. The Credit Agreement, as hereby
------------
amended, is in all respects ratified and confirmed, and all other rights and
powers created thereby or thereunder shall be and remain in full force and
effect.
SECTION 7. COUNTERPARTS. This Amendment may be executed in
------------
several counterparts, and each counterpart, when so executed and delivered,
shall constitute an original instrument, and all such separate counterparts
shall constitute but one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
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AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
SECTION 9. PRIOR AGREEMENTS. THE CREDIT AGREEMENT, THE NOTES,
----------------
THIS AMENDMENT AND THE OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH
CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(A) OF THE TEXAS
BUSINESS & COMMERCE CODE, AND REPRESENT THE FINAL AGREEMENT AMONG 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 AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BORROWER:
XXXXXXXXXX REALTY INVESTORS
By:_____________________________________
Title:____________________________________
AGENTS:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, AGENT
By:_____________________________________
Title:____________________________________
NATIONSBANK OF TEXAS, N.A.,
Syndication Agent
By:_____________________________________
Title:____________________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Documentation Agent
By:_____________________________________
Title:____________________________________
BANKS:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:_____________________________________
Title:____________________________________
SIGNET BANK
By:_____________________________________
Title:____________________________________
NATIONSBANK OF TEXAS, N.A.
By:_____________________________________
Title:____________________________________
COMMERZBANK, A.G.
By:_____________________________________
Title:____________________________________
THE SUMITOMO BANK, LIMITED
By:_____________________________________
Title:____________________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:_____________________________________
Title:____________________________________
CONSENT OF GUARANTORS:
------------------------
WEINGARTEN/LUFKIN, INC.
By:_____________________________________
Title:____________________________________
WEINGARTEN NOSTAT INC.
By:_____________________________________
Title:____________________________________
WRI/POST OAK, INC.
By:_____________________________________
Title:____________________________________
XXXXXXXXXX REALTY
MANAGEMENT COMPANY
By:_____________________________________
Title:____________________________________
ATDNL, INC.
By:_____________________________________
Title:____________________________________
Signature page of Second
Amendment to Credit Agreement
dated as of September 12, 1997
EXHIBIT A
BANK . . . . . . . . . PRO RATA PERCENTAGE COMMITMENT
1. Texas Commerce 21.25% $42,500,000
Bank National
Association
2. NationsBank of 21.25% $42,500,000
Texas, N.A.
3. Signet Bank 12.5% $25,000,000
4. Commerzbank, A.G. 16.25% $32,500.000
5. The Sumitomo Bank, 7.5% $15,000,000
Limited
6. Bank of America 21.25% $42,500.000
National Trust and
Savings Association
THIRD AMENDMENT AND RESTATEMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT AND RESTATEMENT TO CREDIT AGREEMENT (the
"Amendment and Restatement") dated as of October __, 1997, is by and among
Xxxxxxxxxx Realty Investors, a Texas real estate investment trust (the
"Borrower") and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association (in its individual capacity, "TCB"), NationsBank of Texas, N.A.,
as Syndication Agent (in its individual capacity, "NationsBank"), Signet Bank
("Signet"), Commerzbank, A.G., a domestic branch of a bank organized under the
laws of Germany ("Commerzbank"), The Sumitomo Bank, Limited, a Japanese
banking corporation ("Sumitomo"), and Bank of America National Trust and
Savings Association, a national banking association, as Documentation Agent
(in its individual capacity, "Bank of America") and each other bank which is a
party to the Credit Agreement (collectively, with TCB, NationsBank, Bank of
America, Signet, Commerzbank and Sumitomo, the "Banks") and TCB as Agent for
the Banks (in such capacity, the "Agent").
WHEREAS, the Agent, TCB, NationsBank, Signet, Commerzbank, Sumitomo,
and the Borrower have entered into that certain Credit Agreement dated and
effective as of November 21, 1996;
WHEREAS, the Agent, TCB, NationsBank, Signet, Commerzbank, Sumitomo
(together referred to as the "Prior Banks" and the Borrower have entered into
that certain First Amendment to Credit Agreement dated and effective as of
January 1, 1997, and the Agent, the Prior Banks and Bank of America and the
Borrower have entered into that certain Second Amendment to Credit Agreement
dated and effective as of September 12, 1997 (such Credit Agreement as it has
been and may be hereafter amended or otherwise modified and in effect from
time to time, the "Credit Agreement"); and;
WHEREAS, the Banks and the Borrower wish to extend the Revolving
Credit Termination Date from November 21, 1999 to November 21, 2000;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the Banks, the Agent and the
Borrower agree as follows:
SECTION 1. AMENDMENTS
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(a) The definition of "Revolving Credit Termination Date" in
Section 1.01 of the Credit Agreement is hereby amended by deleting the date
"November 21, 1999", from clause (i) thereof, and substituting in lieu thereof
the date "November 21, 2000".
(b) The definition of "Termination Date" under Section 1.01 of
the Credit Agreement is hereby amended by deleting the date "November 21,
1999" and substituting in lieu thereof the date "November 21, 2000."
(c) Section 2.11 of the Credit Agreement is hereby amended by
deleting the date "November 21, 1999", from the second line thereof, and
substituting in lieu thereof the date "November 21, 2000".
SECTION 2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT AND
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RESTATEMENT. This Amendment and Restatement shall become effective on and as
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of the date first written above (the "Effective Date") upon receipt by the
Agent, on behalf of each Bank, of an original counterpart of this Amendment
and Restatement for each Bank, duly executed by the Borrower, the Agent and
the Banks, and acknowledged by each Guarantor.
SECTION 3. REPRESENTATIONS OF BORROWER. The Borrower hereby
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represents and warrants to the Banks the following:
(a) All of the representations and warranties contained in
Article V of the Credit Agreement are true and correct on and as of the date
hereof and will be true and correct after giving effect to this Amendment and
Restatement.
(b) No event which constitutes a Default or an Event of Default
under the Credit Agreement, as amended hereby, has occurred and is continuing,
or would result from the execution and delivery of this Amendment and
Restatement.
(c) The Borrower has the power and authority under the Act to
execute and deliver this Amendment and Restatement and to perform its
obligations under the Credit Agreement, as amended hereby, and under the
Notes; and all such action has been duly authorized by all necessary
proceeding on its part. Each of the Credit Agreement, this Amendment and
Restatement and each Note has been duly and validly executed and delivered by
the Borrower and constitute a valid and legally binding obligation of the
Borrower enforceable in accordance with its terms, except as limited by Debtor
Laws.
SECTION 4. CAPITALIZED TERMS. The capitalized terms used herein
-----------------
which are defined in the Credit Agreement and not otherwise defined herein
shall have the meanings specified therein.
SECTION 5. RATIFICATION. The Credit Agreement, as hereby
------------
amended, is in all respects ratified and confirmed, and all other rights and
powers created thereby or thereunder shall be and remain in full force and
effect.
SECTION 6. COUNTERPARTS. This Amendment and Restatement may be
------------
executed in several counterparts, and each counterpart, when so executed and
delivered, shall constitute an original instrument, and all such separate
counterparts shall constitute but one and the same instrument.
SECTION 7. GOVERNING LAW. THIS AMENDMENT AND RESTATEMENT SHALL
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BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS.
SECTION 8. PRIOR AGREEMENTS. THE CREDIT AGREEMENT, THE NOTES,
----------------
THIS AMENDMENT AND RESTATEMENT AND THE OTHER DOCUMENTS EXECUTED IN CONNECTION
HEREWITH CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(A) OF THE
TEXAS BUSINESS & COMMERCE CODE, AND REPRESENT THE FINAL AGREEMENT AMONG 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 AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BORROWER:
XXXXXXXXXX REALTY INVESTORS
By:_____________________________________
Title:____________________________________
AGENTS:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, AGENT
By:_____________________________________
Title:____________________________________
NATIONSBANK OF TEXAS, N.A.,
Syndication Agent
By:_____________________________________
Title:____________________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Documentation Agent
By:_____________________________________
Title:____________________________________
BANKS:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:_____________________________________
Title:____________________________________
SIGNET BANK
By:_____________________________________
Title:____________________________________
NATIONSBANK OF TEXAS, N.A.
By:_____________________________________
Title:____________________________________
COMMERZBANK, A.G.
By:_____________________________________
Title:____________________________________
THE SUMITOMO BANK, LIMITED
By:_____________________________________
Title:____________________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:_____________________________________
Title:____________________________________
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CONSENT OF GUARANTORS:
------------------------
WEINGARTEN/LUFKIN, INC.
By:_____________________________________
Title:____________________________________
WEINGARTEN NOSTAT INC.
By:_____________________________________
Title:____________________________________
WRI/POST OAK, INC.
By:_____________________________________
Title:____________________________________
XXXXXXXXXX REALTY
MANAGEMENT COMPANY
By:_____________________________________
Title:____________________________________
ATDNL, INC.
By:_____________________________________
Title:____________________________________
