THIS DEPOSIT AGREEMENT, dated as of July 8, 2004, is entered into by and
among WEINGARTEN REALTY INVESTORS, a Texas real estate investment trust (the
"Company"), Mellon Investor Services LLC ("MIS"), as Depositary, and all holders
from time to time of Receipts (as hereinafter defined) issued hereunder.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement for the deposit of the Company's Preferred Shares (as hereinafter
defined) with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of the Receipts evidencing Depositary
Shares representing a fractional interest in the Preferred Shares deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
SECTION 1.01. "Amendment to theDeclaration" shall mean the Statement of
Designation to the Declaration of Trust of the Company, as amended from time to
time, establishing the 6.95% Series E Cumulative Redeemable Preferred Shares of
SECTION 1.02. "Declaration of Trust" shall mean the Restated Declaration of
Trust, as amended from time to time, of the Company.
SECTION 1.03. "Common Shares" shall mean the Company's Common Shares, $0.03
par value per share.
SECTION 1.04. "Company" shall mean Weingarten Realty Investors, a Texas
real estate investment trust, and its successors.
SECTION 1.05. "Office" shall mean the office of the Depositary at which at
any particular time its business in respect of matters governed by this Deposit
Agreement shall be administered, which at the date of this Deposit Agreement is
located at 65 Challenger Road, Ridgefield Park, NJ 07660.
SECTION 1.06. "Deposit Agreement" shall mean this agreement, as the same
may be amended, modified or supplemented from time to time.
SECTION 1.07. "Depositary" shall mean Mellon Investor Services LLC ("MIS")
having its principal office in the United States.
SECTION 1.08. "Depositary Share" shall mean a fractional interest of 1/100
of a Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such Preferred Share and held under this Deposit Agreement, all as
evidenced by the Receipts issued hereunder. Subject to the terms of this Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately, to all
the rights, preferences and privileges of the Preferred Share represented by
such Depositary Share, including the dividend, voting, redemption, conversion
and liquidation rights contained in the Statement of Designation to the
Declaration of Trust.
SECTION 1.09. "Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
SECTION 1.10. "Preferred Shares" shall mean the Company's 6.95% Series E
Cumulative Redeemable Preferred Shares, $0.03 par value per share, heretofore
validly issued, fully paid and nonassessable.
SECTION 1.11. "Receipt" shall mean a Depositary Receipt issued hereunder to
evidence one or more Depositary Shares, whether in definitive or temporary form,
substantially in the form set forth as Exhibit A hereto.
SECTION 1.12. "record date" shall mean the date fixed pursuant to Section
SECTION 1.13. "record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books maintained by
the Depositary for such purpose.
SECTION 1.14. "Registrar" shall mean MIS.
SECTION 1.15. "Securities Act" shall mean the Securities Act of 1933, as
SECTION 1.16. "Transfer Agent" shall mean MIS appointed to transfer the
Receipts, the deposited Preferred Shares, as the case may be, as herein
FORM OF RECEIPTS; DEPOSIT OF PREFERRED SHARES; EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company, delivered in
compliance with Section 2.02, shall execute and deliver temporary Receipts which
may be printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
will cause definitive Receipts to be prepared without unreasonable delay. After
the preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts at
the Office or such other offices, if any, as the Depositary may designate,
without charge to the holder. Upon surrender for cancellation of any one or
more temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Preferred
Shares deposited, as definitive Receipts.
(b) Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, provided
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual or facsimile signature of a
duly authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above and
delivered as hereinafter provided. The Company hereby appoints the Depositary
to act as the depositary for the Company in accordance with the terms and
conditions hereof, and the Depositary hereby accepts such appointment.
(c) Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
(d) Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Shares, the Depositary Shares or
the Receipts may be listed or to conform with any usage with respect thereto, or
to indicate any special limitations or restrictions to which any particular
Receipts are subject.
(e) Title to any Receipt (and the beneficial ownership of the Depositary
Shares evidenced by such Receipt) that is properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement shall be transferable by
delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until a Receipt shall be transferred on the books of the
Depositary as provided in Section 2.04, the Depositary may, notwithstanding any
notice to the contrary, treat the record holder thereof at such time as the
absolute owner thereof for all purposes, including without limitation, for the
purpose of determining the person entitled to (i) distribution of dividends or
other distributions, (ii) the exercise of any conversion rights or (iii) any
notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Shares; Execution and Delivery of
Receipts in Respect Thereof. Concurrently with the execution of this Deposit
Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing 29,000
Preferred Shares, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as may
be required by the Depositary in accordance with the provisions of this Deposit
Agreement and (ii) a written order of the Company directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Shares. The Depositary acknowledges
receipt of the deposited Preferred Shares and related documentation and agrees
to hold such deposited Preferred Shares in an account to be established by the
Depositary at the Office or at such other office as the Depositary shall
determine. The Company hereby appoints the Depositary as the Company's
Registrar and Transfer Agent for the Preferred Shares deposited hereunder, and
the Depositary hereby accepts such appointment and, as such, will reflect
changes in the number of deposited Preferred Shares (including any fractional
shares) held by it by notation, book-entry or other appropriate method.