Home / Preview ID: 260003

Deposit Agreement

Entities:
Date:
2004
Size:
74K
ID:
#260003

Start of Preview
DEPOSIT AGREEMENT 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. WITNESSETH: 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: ARTICLE I DEFINITIONS 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 Receipts: 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 the Company. 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 4.04. 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 amended. SECTION 1.16. "Transfer Agent" shall mean MIS appointed to transfer the Receipts, the deposited Preferred Shares, as the case may be, as herein provided. ARTICLE II 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.
End of Preview