EXHIBIT 10.5
SECOND SUPPLEMENTAL TRUST INDENTURE
-----------------------------------
This SECOND SUPPLEMENTAL TRUST INDENTURE (this "Second Supplemental
Indenture") is executed this ______ day of March, 1996 (the "Execution Date"),
but effective as of December 28, 1995, by and between WRI HOLDINGS, INC. (the
"Company"), a Texas corporation, and TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(the "Trustee"), a national banking association.
W I T N E S S E T H:
-------------------
WHEREAS, the Company and the Trustee executed that certain Trust Indenture
(the "Original Trust Indenture") dated December 28, 1984 to secure the
performance of the Company under the terms of that certain 16% Mortgage Bonds
Due 1994 (the "Original Bonds") executed by the Company payable to the order of
Xxxxxxxxxx Realty, Inc. ("WRI") dated December 28, 1984 in the face principal
amount of THREE MILLION ONE HUNDRED FIFTY THOUSAND and NO/100 DOLLARS
($3,150,000.00), payable as therein provided; and
WHEREAS, WRI assigned and conveyed all of its property, both real and
personal, to Xxxxxxxxxx Realty Investors ("Weingarten"), a Texas real estate
investment trust, as evidenced by that certain Master Deed and General
Conveyance, by and between WRI and Weingarten dated April 5, 1988; and
WHEREAS, effective as of December 28, 1995, the Company and Xxxxxxxxxx
renewed and extended the maturity date of the Original Bonds to December 28,
1995 pursuant to the terms of that certain Bonds Renewal and Extension Agreement
("First Renewal") dated as of December 28, 1994 between the Company and
Xxxxxxxxxx (the Original Bonds, as renewed and extended by the First Renewal,
being called the "Bonds"); and
WHEREAS, the Company and Xxxxxxxxxx amended and supplemented the terms of
the Original Trust Indenture to reflect the renewal and extension of the Bonds
as provided in the First Renewal, such amendment being evidenced by that certain
Supplemental Trust Indenture dated as of December 28, 1994 between the Company,
the Trustee and Xxxxxxxxxx (the Original Trust Indenture, as amended and
supplemented by the Supplemental Trust Indenture, being called the "Trust
Indenture"); and
WHEREAS, the Bonds mature on December 28, 1995, and the Company and
Xxxxxxxxxx have agreed to renew and extend the maturity date of the Bonds and to
continue the liens, pledges, and security interests securing the payment of the
Bonds, as set forth in that certain Bonds Second Renewal and Extension Agreement
("Second Renewal") dated effective as of December 28, 1995, executed by the
Company and Xxxxxxxxxx, Xxxxxxxxxx being the sole legal owner and holder of the
Bonds; and
1
WHEREAS, the Company and Xxxxxxxxxx also amended the terms of the Bonds to
xxxxx Xxxxxxxxxx the right to call the Bonds due prior to their maturity subject
to the terms of the Second Renewal; and
WHEREAS, the Company and the Trustee desire to amend and supplement the
Trust Indenture to reflect the renewal and extension of the maturity date of the
Bonds to December 28, 1996 and to evidence the addition of a call provision to
the Bonds.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Trustee hereby
agree as follows:
1. Except as otherwise provided in this Second Supplemental Indenture, all
capitalized terms used in this Second Supplemental Indenture shall have the
meanings ascribed to those terms in the Trust Indenture.
2. The Company and the Trustee acknowledge that the Company has reaffirmed
its promise to pay to the order of the Payee, at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000, the principal balance due and owing on the Bonds,
with interest accrued thereon, as provided in the Bonds, except that the
maturity date of the Bonds has been renewed and extended to December 28, 1996,
at which time the unpaid principal balance of the Bonds plus all accrued and
unpaid interest thereon shall be due and payable.
All liens, pledges, and security interests securing the Bonds granted under
the terms of the Trust Indenture, are hereby renewed, extended and carried
forward to secure payment of the Bonds, as hereby amended, and the Trust
Indenture is hereby amended to reflect that the maturity date of the Bonds is
December 28, 1996.
3. In consideration for the extension of the maturity date of the Bonds as
provided in the Second Renewal, the Trust Indenture is further modified and
amended to insert the following provision as section 4.14 to the Trust
Indenture:
"SECTION 4.14. RIGHT TO CALL DEBT DUE. Notwithstanding any
provision to the contrary in this Indenture, the Securities, or any
other documents evidencing, securing, or relating to the indebtedness
evidenced by the Securities, and without regard to the occurrence of
any default or breach under the terms of this Indenture, the
Securities, or such other documents, the Trustee, or the Holder, at
any time during the term of this Indenture, upon thirty (30) days
prior written notice to the Company, may declare the entire
outstanding principal balance of the Securities together with all
accrued and unpaid interest thereon (whether such interest is
evidenced by the Securities or another instrument or promissory note)
immediately due and payable without any penalty or premium. Such
notice of intention to declare such indebtedness
2
due shall be sent in accordance with the notice provisions of this
Indenture. If the Securities are owned by more than one Holder, a
majority of the Holders (as determined by the principal amount owed to
such owners) may declare the indebtedness evidenced by the Securities
due pursuant to the terms of this Section. The failure of the Company
to pay such indebtedness when declared due pursuant to the terms of
this Section shall constitute an Event of Default under this
Indenture."
4. The Company hereby represents and warrants to the Trustee that (a) the
Company is the sole legal and beneficial owner of the Trust Estate; (b) the
Company has the full power and authority to make the agreements contained in
this Second Supplemental Indenture without joinder and consent of any other
party; and (c) the execution, delivery and performance of this Second
Supplemental Indenture will not contravene or constitute an event which itself
or which with the passing of time or giving of notice or both would constitute a
default under any trust deed, deed of trust, loan agreement, indenture or other
agreement to which the Company is a party or by which the Company or any of its
property is bound. The Company hereby agrees to indemnify and hold harmless the
Trustee against any loss, claim, damage, liability or expense (including,
without limitation, attorneys' fees) incurred as a result of any representation
or warranty made by the Company in this Section 4 proving to be untrue in any
material respect.
5. To the extent that the Trust Indenture is inconsistent with the terms of
this Second Supplemental Indenture, the Trust Indenture is hereby modified and
amended. Except as modified, renewed and supplemented by this Second
Supplemental Indenture, the Trust Indenture remains unchanged and continues
unabated and in full force and effect as the valid and binding obligation of the
Company.
6. The Company covenants and warrants that the Trustee is not in default
under the Trust Indenture, as supplemented by this Second Supplemental Indenture
(collectively referred to as the "Indenture"), that there are no defenses,
counterclaims or offsets to the Bonds or the Indenture, and that all of the
provisions of the Bonds and the Indenture are in full force and effect.
7. The Company agrees to pay all costs incurred in connection with the
execution and consummation of this Second Supplemental Indenture, including but
not limited to, all recording costs and the reasonable fees and expenses of
Trustee's counsel.
8. If any covenant, condition, or provision herein contained is held to be
invalid by final judgment of any court of competent jurisdiction, the invalidity
of such covenant, condition, or provision shall not in any way affect any other
covenant, condition, or provision herein contained.
9. The Company acknowledges and agrees that the outstanding principal
balance of the Bonds as of December 28, 1995 is $3,150,000.00.
3
10. Xxxxxxxxxx joins herein to consent to the amendment and supplement of
the terms of the Trust Indenture as set forth in this Second Supplemental
Indenture and to acknowledge and represent that Weingarten is the sole owner and
holder of the Bonds. Weingarten is an unincorporated trust organized under the
Texas Real Estate Investment Trust Act. Neither the shareholders of Weingarten,
nor its Trust Managers, officers, employees, or other agents shall be
personally, corporately, or individually liable, in any manner whatsoever, for
any debt, act, omission, or obligation of Xxxxxxxxxx, and all persons having
claims of any kind whatsoever against Xxxxxxxxxx shall look solely to the
property of Xxxxxxxxxx for the enforcement of their rights (whether monetary or
nonmonetary) against Xxxxxxxxxx
EXECUTED this day and year first above written, but effective for all
purposes as of December 28, 1995.
WRI HOLDINGS, INC.
By: [SIGNATURE APPEARS HERE]
____________________________
Xxxxxx Xxxxxxxxx
Vice President
"Company"
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
[SIGNATURE APPEARS HERE]
By: ___________________________
Xxxxx Xxxxx
Assistant Vice President
and Trust Officer
"Trustee"
XXXXXXXXXX REALTY INVESTORS
[SIGNATURE APPEARS HERE]
By: ___________________________
Xxxx Xxxxxxxxx, Jr.
Executive Vice President
"Xxxxxxxxxx"
4
THE STATE OF TEXAS )
)
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on this 6th day of March, 1996,
by Xxxxxx Xxxxxxxxx, Vice President of WRI HOLDINGS, INC., a Texas corporation,
on behalf of said corporation.
[SIGNATURE APPEARS HERE]
_____________________________
Notary Public, State of Texas
[SEAL APPEARS HERE]
THE STATE OF TEXAS )
)
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on this _______ day of March,
1996 by Xxxxx Xxxxx, Assistant Vice President of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association, on behalf of said national banking
association.
________________________________
Notary Public, State of Texas
THE STATE OF TEXAS )
)
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me on this 6th day of March, 1996
by Xxxx Xxxxxxxxx, Jr., Executive Vice President of XXXXXXXXXX REALTY INVESTORS,
a Texas real estate investment trust, on behalf of said real estate investment
trust.
[SIGNATURE APPEARS HERE]
--------------------------------
Notary Public, State of Texas
[SEAL APPEARS HERE]
5
