SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported) June 14, 1999
Paine Webber Income Properties Five Limited Partnership
-------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-12087 04-2780287
- --------------------------------------------------------------------------------
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
Bell Plaza Shopping Center, Amarillo, Texas
Disposition Date - June 14, 1999
On June 14, 1999, Amarillo Bell Associates, a joint venture in which the
Partnership had an interest, sold the Bell Plaza Shopping Center to an unrelated
third party for a net price of $6,600,000. The Partnership received proceeds of
$2,140,000 after the assumption of the outstanding first mortgage loan of
$3,113,000, closing costs and proration adjustments of $171,000, and the
co-venture partner's share of the proceeds of $1,176,000. In addition, the
Partnership received $117,000 upon the liquidation of the joint venture, which
represented its share of the net cash flow from operations through the date of
the sale. The net proceeds received by the Partnership from the sale of Bell
Plaza will be distributed to the Limited Partners as part of a Special
Distribution of $3,143,520, or $90 per original $1,000 investment, to be paid on
June 28, 1999 to unitholders of record as of the June 14, 1999 sale date. Of the
$90 total, $61.27 represents net proceeds from the sale of the Bell Plaza
Shopping Center, $6.84 represents cash flow from Bell Plaza's fiscal year 1999
operations through the date of sale and $21.89 represents Partnership reserves
which exceed future requirements.
As previously reported, the Partnership and its Bell Plaza Shopping Center
co-venture partner held preliminary discussions concerning potential sale
opportunities for this Center during fiscal 1998. After extensive discussions,
it was agreed that marketing efforts would begin last quarter and would focus on
regional buyers of specialty retail centers like Bell Plaza. As a result of
these efforts, six offers were received. After evaluating the offers and the
relative strength of the prospective purchasers, the Partnership and its
co-venture partner selected an offer. A purchase and sale agreement was
subsequently negotiated with this prospective third-party buyer and the sale
closed on June 14, 1999.
As discussed further in the Partnership's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999, the Partnership has been focusing on
potential disposition strategies for the two remaining investments in its
portfolio, Bell Plaza Shopping Center and Seven Trails West Apartments. With the
Bell Plaza property sold, management is actively pursuing a sale of the Seven
Trails West Apartments property. As a result, although no assurances can be
given, it is currently contemplated that a sale of Seven Trails property and a
liquidation of the Partnership will be completed before the end of calendar year
1999.
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Closing Statement by and between Amarillo Bell Associates and WRI/Bell
Plaza, Inc. dated June 14, 1999.
(2) Purchase and Sale Agreement by and between Amarillo Bell Associates
and Weingarten Realty Investors dated April 9, 1999.
(3) Reinstatement and First Amendment to Purchase and Sale Agreement
between Amarillo Bell Associates and Weingarten Realty Investors,
dated May 24, 1999.
(4) Second Amendment to Purchase and Sale Agreement between Amarillo Bell
Associates and Weingarten Realty Investors, dated June 3, 1999.
(5) Third Amendment to Purchase and Sale Agreement between Amarillo Bell
Associates and Weingarten Realty Investors, dated June 9, 1999.
(6) Fourth Amendment to Purchase and Sale Agreement between Amarillo Bell
Associates and Weingarten Realty Investors, dated June 10, 1999.
(7) Fifth Amendment to Purchase and Sale Agreement between Amarillo Bell
Associates and Weingarten Realty Investors, dated June 11, 1999.
(8) Special Warranty Deed by and between Amarillo Bell Associates and
WRI/Bell Plaza, Inc. dated June 14, 1999.
(9) Bill of Sale by Amarillo Bell Associates in favor of WRI/Bell Plaza,
Inc., dated June 14, 1999.
(10) Assignment and Assumption of Leases and Security Deposits between
Amarillo Bell Associates and WRI/Bell Plaza, Inc., dated June 14,
1999.
(11) Assignment and Assumption of Contracts between Amarillo Bell
Associates in favor of WRI/Bell Plaza, Inc., dated June 14, 1999.
(12) Indemnification Agreement by WRI/Bell Plaza, Inc. and Weingarten
Realty Trust for the benefit of Amarillo Bell Associates, PaineWebber
Income Properties Five Limited Partnership and Amarillo G.C.
Associates, Ltd. dated June 14, 1999.
(13) Loan Assumption Agreement by and between Amarillo Bell Associates;
WRI/Bell Plaza, Inc.; and State Street Bank as trustee for JP Morgan
Commercial Mortgage Finance Corp. Mortgage Pass-Through Certificates,
Series 1996-C2.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAINE WEBBER INCOME PROPERTIES FIVE LIMITED PARTNERSHIP
(Registrant)
By: FIFTH INCOME PROPERTIES, INC.
-----------------------------
(General Partner)
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: June 28, 1999
<PAGE>
CLOSING STATEMENT
NAME OF BORROWER: WRI/BELL PLAZA, INC.
NAME OF SELLER: AMARILLO BELL ASSOCIATES
PROPERTY LOCATION: BELL PLAZA
AMARILLO, TEXAS
SETTLEMENT AGENT: STEWART TITLE COMPANY
SETTLEMENT DATE: 6/14/99
SUMMARY OF SELLER'S TRANSACTION
- -------------------------------------------------------------------------------
GROSS AMOUNT DUE TO SELLER:
Contract Sales Price $6,600,000.00
Escrow Account $59,717.23
Reserve Account $191,437.82
Gross Amount Due to Seller $6,851,155.05
- -------------------------- -------------
REDUCTIONS IN AMOUNT DUE TO SELLER:
Settlement Charges to Seller $147,414.65
Existing Loan taken subject to $3,112,584.57
Security Deposit $29,052.95
Roof Repairs $46,547.50
Drainage Repairs $91,000.00
Countrywide Funding 15.00
Adjustments for items unpaid by seller:
Interest $9,132.31
Taxes $54,716.10
Rent $44,242.45
Total Reduction in Amount $3,534,705.53
- -------------------------- -------------
CASH AT SETTLEMENT TO/FROM SELLER:
Gross amount due to seller $6,851,155.05
Less total reductions in amount due seller $3,534,705.53
CASH TO SELLER: $3,316,449.52
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
AMARILLO BELL ASSOCIATES ("SELLER")
AND
WEINGARTEN REALTY INVESTORS ("BUYER")
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 1
-----------
ARTICLE 2 PURCHASE AND SALE 2
-----------------
ARTICLE 3 PURCHASE PRICE; DEPOSIT; ADJUSTMENTS 2
------------------------------------
ARTICLE 4 PRECLOSING OPERATION 5
--------------------
ARTICLE 5 ACCESS, INSPECTION, DILIGENCE 6
-----------------------------
ARTICLE 6 TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS 11
---------------------------------------------
ARTICLE 7 CLOSING 15
-------
ARTICLE 8 CASUALTY AND CONDEMNATION 16
-------------------------
ARTICLE 9 BROKERAGE COMMISSIONS 17
---------------------
ARTICLE 10 DEFAULT, TERMINATION AND REMEDIES 18
---------------------------------
ARTICLE 11 MISCELLANEOUS 19
-------------
ARTICLE 12 IRS FORM 1099-S DESIGNATION 22
---------------------------
SCHEDULE A Legal Description of the Real Property
SCHEDULE B Description of Personal Property and Intangible Property
SCHEDULE C Rent Roll
SCHEDULE D 1099 Designation Agreement
SCHEDULE E Form of Tenant Estoppel Certificate
SCHEDULE F Prior Note
SCHEDULE G Prior Deed of Trust
SCHEDULE H List of Prior Loan Documents
SCHEDULE I List of Escrow Provisions
<PAGE>
Purchase and Sale Agreement
This Purchase and Sale Agreement (this "Agreement") is entered into as of
the 9th day of April, 1999 by and between Seller and Buyer, upon the following
terms and conditions:
ARTICLE 1
DEFINITIONS
References in this Agreement to the following terms shall have the
following meanings:
BUYER: Weingarten Realty Investors, a Texas real estate
------ investment trust, or its assignee or transferee pursuant
to Section 11.1, below.
SELLER: Amarillo Bell Associates, a Texas general partnership.
-------
PROPERTY: The Real Property, Personal Property and Leases
-------- constituting Bell Plaza, Amarillo, Texas.
REAL PROPERTY: The land, as described on Schedule A attached hereto,
------------- and the buildings, structures, improvements and fixtures
(collectively, the "Improvements") now located thereon
and the rights appurtenant thereto, including, to the
extent owned or held by Seller, mineral rights, utility
and waste-water capacity rights, rights under reciprocal
easements and restrictive covenants, rights under any
recorded or unrecorded instruments benefiting the Real
Property, strips, gores, and adjoining tracts owned by
Seller and reversionary rights.
PERSONAL PROPERTY: The personal and intangible property, if any, described
----------------- in Schedule B attached hereto.
LEASES: The interest of the lessor or landlord under all leases
------ or use and occupancy agreements covering space on the
Real Property or in the Improvements.
PURCHASE PRICE: $6,600,000.00
--------------
TITLE COMPANY: Stewart Title Company, Houston Division
-------------
ARTICLE 2
PURCHASE AND SALE
2.1 In consideration of the undertakings and mutual covenants of the
parties set forth in this Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Seller hereby agrees to sell and convey the Property to Buyer and
Buyer hereby agrees to buy and pay the Purchase Price for the Property on the
terms and conditions contained herein.
ARTICLE 3
PURCHASE PRICE; DEPOSIT; ADJUSTMENTS
3.1 The Purchase Price shall be as specified in Article 1 above and shall
be paid by (i) Buyer's assumption and Prior Lender's (as hereinafter defined)
release of all of Seller's obligations under the Prior Loan Documents (as
hereinafter defined) and (ii) an amount equal to the difference between the
Purchase Price and the outstanding principal balance of the Prior Note (as
hereinafter defined) plus all accrued, unpaid interest thereon, if any, as of
the Closing Date (the "Cash Payment"), which Cash Payment shall be payable on
the Closing Date by wire transfer of immediately available federal funds,
subject to adjustment to reflect application of the Escrowed Amount and such
other adjustments herein contained.
For purposes of this Agreement, the term "Prior Note" shall mean that
certain promissory note dated June 15, 1995, executed by Amarillo Bell
Associates payable to the order of Amresco Capital Corporation (together with
its successors and assigns, the "Prior Lender" in the original principal sum of
$3,300,000.00 . The Prior Note was subsequently assigned to Morgan Guaranty
Trust Company of New York and then to State Street Bank and Trust Company, as
Trustee. The Prior Note is secured by a Mortgage, Deed of Trust and Security
Agreement dated June 15, 1995, executed by Amarillo Bell Associates to Mark L.
Morganfield, as trustee, for the benefit of Prior Lender which is filed for
record under Volume 1036, Page 382 in the Deed of Trust Records of Randall
County, Texas (the "Prior Deed of Trust"). A copy of the Prior Note is attached
hereto as Schedule F. A copy of the Prior Deed of Trust is attached hereto as
Schedule G. The term "Prior Loan Documents" shall mean the Prior Note, Prior
Deed of Trust, and such other documents and agreements listed on Schedule H
attached hereto and made a part hereof.
3.2 Buyer shall within two (2) business days after Seller has delivered to
Buyer a fully executed copy of this Agreement, deposit with the Title Company
the sum of One Hundred Thousand Dollars ($100,000.00) (the "Escrowed Amount") to
secure Buyer's obligations under this Agreement. The Escrowed Amount shall be
held by the Title Company pursuant to the terms of this Agreement and pursuant
to the terms of the Escrow Provisions contained in Schedule I attached hereto
and made a part hereof. Additionally, concurrently with the execution of this
Agreement, Buyer shall deliver to Seller the sum of One Hundred Dollars
($100.00) (the "Inspection Fee") as consideration for Buyer's information review
and property inspection rights set forth herein. The Inspection Fee shall remain
the property of Seller in all instances.
3.3 All prepaid or escrowed amounts or interest under the Prior Loan
Documents which are assigned to Buyer at Closing shall be prorated and adjusted
as of the Closing Date.
3.4 All real estate taxes, assessments, special taxes, special assessments
and any other tax or assessment attributable to the Property through the Closing
Date shall be prorated and adjusted as of the Closing Date. If the tax
statements for the fiscal year during which the Closing Date occurs are not
finally determined, then the tax figures for the immediately prior fiscal year
shall be used for the purposes of prorating taxes on the Closing Date, with a
further adjustment to be made after the Closing Date as soon as the tax figures
are finalized. Any tax refunds or proceeds (including interest thereon) on
account of a favorable determination resulting from a challenge, protest, appeal
or similar proceeding relating to taxes and assessments relating to the Property
(i) for all tax periods occurring prior to the applicable tax period in which
the Closing occurs shall be retained by and paid exclusively to Seller and (ii)
for the applicable tax period in which the Closing occurs shall be prorated as
of the Closing Date after reimbursement to Seller and Buyer, as applicable, for
all fees, costs and expenses (including reasonable attorneys' and consultants'
fees) incurred by Seller or Buyer, as applicable, in connection with such
proceedings such that Seller shall retain and be paid that portion of such tax
refunds or proceeds as is applicable to the portion of the applicable tax period
prior to the Closing Date and Buyer shall retain and be paid that portion of
such tax refunds or proceeds as is applicable to the portion of the applicable
tax period from and after the Closing Date. Neither Seller nor Buyer shall
settle any tax protests or proceedings in which taxes for the tax period for
which the other party is responsible are being adjudicated without the consent
of such party, which consent should shall not be unreasonably withheld,
conditioned or delayed. Buyer and Seller shall cooperate in pursuit of any such
proceedings and in responding to reasonable requests of the other for
information concerning the status of and otherwise relating to such proceedings;
provided, however, that neither party shall be obligated to incur any
out-of-pocket fees, costs or expenses in responding to the requests of the
other. In no event shall any such proceeding be commenced by Seller following
the Closing Date without Buyer's prior written consent; provided, however, that
Seller shall be entitled to continue any existing proceeding.
3.5 Prepaid or past due amounts under any Contracts (as defined in Section
5.2, below) which are assigned to Buyer at Closing, if Buyer elects to take
assignment thereof, shall be prorated and adjusted as of the Closing Date.
3.6 Seller shall cause all meters for electricity, gas, water, sewer or
other utility usage at the Property to be read on the Closing Date, and Seller
shall pay all charges for such utilities which have accrued on or prior to the
Closing Date; provided, however, that if and to the extent such charges are paid
directly by tenants, no such reading or payment shall be required. If the
utility companies are unable or refuse to read meters for which payment by
Seller is required, all charges for such utilities to the extent unpaid shall be
prorated and adjusted as of the Closing Date based on the most recent bills
therefor. Seller shall provide notice to Buyer within five (5) days before the
Closing Date setting forth (i) whether utility meters will be read as of the
Closing Date and (ii) a copy of the most recent bill for any utility charges
which are to be prorated and adjusted as of the Closing Date. If the meters
cannot be read as of the Closing Date and, therefore, the most recent bill is
used to prorate and adjust as of the Closing Date, then to the extent that the
amount of such prior bill proves to be more or less than the actual charges for
the period in question, a further adjustment shall be made after the Closing
Date as soon as the actual charges for such utilities are available.
3.7 Collected rents for the then current period; security deposits which
have not been previously applied by Seller, subject to Section 4.2, below;
prepaid rentals; collected or prepaid common area maintenance charges; collected
or prepaid promotional charges; collected or prepaid service charges; collected
or prepaid tax charges, and all other collected or prepaid incidental expenses
and charges paid by tenants shall be apportioned and full value shall be
adjusted as of the Closing Date, and the net amount thereof, if in favor of
Seller, shall be added to the Purchase Price, or if in favor of Buyer, shall be
deducted from the Purchase Price. From and after Closing all security deposits
credited to Buyer shall thereafter be deemed transferred to Buyer and Buyer
shall assume and be solely responsible for the payments of security deposits
(for which Buyer was credited at Closing) to tenants in accordance with the
Leases (as hereinafter defined) and applicable law. Seller shall be entitled to
retain or receive a credit for any utility deposits and any deposits for third
parties under any of the Contracts (as hereinafter defined). In addition, Seller
shall be entitled to a credit for the full amount of all escrow held by Prior
Lender.
3.7.1 All rentals and other tenant charges payable in arrears and
uncollected and all other uncollected rents (including, but not limited
to, percentage rents, common area maintenance charges and real estate tax
charge annual adjustments thereto) for the rental period during which the
Closing occurs and prior rental periods, less the reasonable expenses of
collection thereof, shall be apportioned (if and when collected by either
party); provided, however, that Buyer shall proceed in a commercially
reasonable manner consistent with Buyer's customary practice for tenants
owing past due or uncollected rent as of the Closing Date to Seller to
collect such past due or uncollected rents from existing tenants listed on
the Rent Roll (as hereinafter defined) including but not limited to
delivery of delinquency notices and visits to such tenants from Buyer's
property manager; provided that Buyer shall not be obligated to (i)
commence suit against any tenant; (ii) terminate any tenancy; or (iii)
evict or lockout any tenant and Buyer shall first apply rents subsequently
received to rent due and owing for rental periods accruing after the
Closing Date. Buyer shall not settle or release (i) tenants from any
obligations for such uncollected rents or (ii) rights under any claims
listed in Section 3.7.2 below, in each case, without Seller's prior
written approval. Buyer shall provide Seller with written evidence of its
collection efforts, such evidence shall include, but not be limited to
providing copies of letters and invoices to tenants, copies of reports
regarding follow-up efforts and cash receipts and aged delinquency
reports. Buyer shall provide such written evidence of its collection
efforts within fifteen (15) days of demand therefor provided that Seller
may request such evidence no more than on a quarterly basis. Seller shall
have no collection rights against any of the tenants after the Closing
under the Leases assigned to Buyer.
3.7.2 Seller shall retain all rights to all refunds, receivables,
past due rent and claims, including, but not limited to, termination fees
or damages from all former tenants or occupants of the Property which are
not listed on the Rent Roll, causes of action and rights of reimbursement
from third parties, bonds, accounts receivable and any other claims for
payments Seller may have to the extent arising or relating to the period
prior to the Closing.
3.7.3 In the event, on the Closing Date, the precise figures
necessary for any of the foregoing adjustments are not capable of
determination, then, at Buyer's option, those adjustments shall be made
either (i) on the basis of good faith estimates of Seller and Buyer using
currently available information, and final adjustments shall be made
promptly after precise figures are determined or available or (ii) when
all information for all final adjustments are determined or available.
3.8 At the Closing, Seller shall pay for (a) recording charges for
documents to clear title, evidence Seller's authority or enable Seller to
convey; (b) Seller's attorneys' fees; (c) Buyer's Agent's Commission (as defined
in Article 9, below); (d) any transfer fees, processing fees, application fees,
and similar charges assessed by the Prior Lender and including Prior Lender's
reasonable attorney's fees, in connection with Buyer's assumption of Seller's
obligations under the Prior Loan Documents; and (e) the cost of the standard
owner's title insurance policy referred to in Article 6, below. In addition,
Seller will credit (a) the amount of $91,000.00 to Buyer on the Closing
Statement for drainage repairs associated with the Property and (b) an amount to
be reasonably determined by Seller and Buyer for roof repairs over World Gym.
3.9 At the Closing, Buyer shall pay for (a) state and county transfer tax
(or any tax substituted therefor) imposed in connection with the consummation of
the transaction contemplated hereby (the "Transfer Tax"); (b) any local tax or
mortgage tax other than the Transfer Tax; (c) charges to record the deed, and
evidence of Buyer's existence or authority; (d) Buyer's attorney's fees and all
costs related to Buyer's due diligence; (e) costs as to additional title
insurance coverages or endorsements (including but not limited to survey
endorsement(s); and (f) any costs incurred in obtaining the New Survey.
3.10 For purposes of this Article 3, all prorations and adjustments shall
be calculated as of 12:01 a.m. Central Daylight Time on the Closing Date,
subject to Section 7.3, below.
3.11 The provisions of this Article 3 shall survive the Closing.
ARTICLE 4
PRECLOSING OPERATION
4.1 A rent roll prepared by Seller's property manager (the "Rent Roll")
containing a list of all current occupants of the Property is attached hereto as
Schedule C. The leases listed on the Rent Roll, together with leases entered
into pursuant to this Article 4 are collectively referred to herein as the
"Leases."
4.2 Seller shall not, after the date hereof; (i) enter into any new Leases
or amend or terminate any existing Leases, (ii) enter into or modify any service
contracts, operating agreements, or reciprocal easement agreements, (iii) alter
the zoning classification of the Property (iv) alter any Improvements or (v)
apply any security deposits to amounts past due owed by tenants to Seller,
without the written consent of Buyer in any such instance, which consent shall
not be unreasonably withheld or delayed. If Buyer does not notify Seller in
writing of its denial of consent within five (5) days after written request
therefor from Seller, Buyer shall be deemed to have consented to such requested
action. In the event Buyer denies its consent, Buyer shall specify its reasons
for denial in its written notice thereof. In the event Seller's requested action
with respect to a Lease is consented to or deemed consented to by Buyer and if,
and only if, the transaction as contemplated by this Agreement is closed, except
as otherwise provided in Section 4.6 below, Buyer shall pay (or reimburse
Seller, as the case may be) for tenant improvements and leasing commissions as
disclosed on Seller's request for consent.
4.3 At all times prior to Closing, Seller shall continue (a) to conduct
business with respect to the Property in the same manner in which said business
has been heretofore conducted and (b) to insure the Property substantially as
currently insured.
4.4 Buyer shall, by written notice to Seller, on or before the Diligence
Date, identify any Contracts (as hereinafter defined) which it elects to have
assigned to it and therefore will assume. Buyer shall be deemed to have elected
not to assume any Contracts which are not identified as to be assigned and
assumed. Seller shall terminate any Contracts at Closing which are not
identified by Buyer as specified in this section as to be assigned and assumed
at Closing, provided that such Contracts may be terminated without cost or
liability to Seller.
4.5 Seller shall use commercially reasonable efforts to obtain tenant
estoppel certificates, from all tenants currently occupying their space under
the Lease in the form required under such Leases, or if no form is so required,
in the form attached hereto as Schedule E. Seller shall not be obligated to
expend more than nominal funds or commence litigation in pursuit of such
estoppel certificates and receipt of such estoppel certificates shall not be a
condition precedent to Closing, except as set forth in Section 6.5, below.
4.6 Seller shall use commercially reasonable efforts to complete, at its
cost, all tenant improvements required in the former Cox Video space as well as
required in the lease renewals with Tan Inn and Tae Kwan Do (collectively, the
"Tenant Improvement Work"). Seller's failure to complete the Tenant Improvement
Work shall not be an event of default hereunder but, in the event such Tenant
Improvement Work is not completed on or before the Closing Date, Buyer shall
receive a credit for the cost to complete the Tenant Improvement Work as
reasonably determined by the parties, provided that Buyer assumes, and Seller is
released from, the obligations to complete the Tenant Improvement Work.
ARTICLE 5
ACCESS, INSPECTION, DILIGENCE
5.1 Seller agrees that Buyer and its authorized agents or representatives
shall be entitled to enter upon the Real Property and the Improvements during
normal business hours after two (2) days advance written notice to Seller (in
each case subject to the rights of tenants under the Leases) to make such
investigations, studies, and tests as Buyer deems necessary or advisable;
provided, however, that Buyer shall not be permitted to conduct physical testing
or conduct interviews with tenants without Seller's prior written approval,
which approval shall not be unreasonably withheld, conditioned or delayed.
Seller shall use its commercially reasonable efforts to make its personnel
available for such inspections or interviews upon two (2) days prior written
notice. Seller's prior written approval for physical inspections may be
conditioned on receipt of a detailed description of the proposed physical
inspection, a list of the contractors who will be performing the physical
inspection and evidence of insurance reasonably satisfactory to Seller, and such
other information as Seller reasonably requires in connection with such proposed
inspection. Buyer may not interview tenants unless a duly authorized
representative of Seller accompanies Buyer. Seller agrees that for purposes of
the tenant interviews, Seller's duly authorized representative shall be Gary
Bullock. Seller also agrees to make available to Buyer during normal business
hours upon advance written notice to Seller all books, records, plans, building
specifications, contracts, agreements or other instruments or documents
contained in Seller's files relating to the construction, operation and
maintenance of the Property and the files of the current manager of the Property
that relate to the Property.
5.2 Seller shall provide Buyer, promptly after Seller's execution of this
Agreement, with copies of all (i) Leases and (ii) all maintenance, service,
supply, equipment rental, management and leasing contracts affecting the
Property (collectively, the "Contracts") which it has in its files and shall
instruct its property manager to make such Leases and Contracts available to
Buyer for inspection. To the extent Seller has any of the following in its
possession or control, Seller agrees to make the same available for inspection
by Buyer or its agents:
(a) Copies of property tax bills and assessment notices for the
preceding year and the current year.
(b) Copies of insurance policies and premiums.
(c) Copies of as-built plans and specifications, soil reports, plot
plans and site plans.
(d) Copies of guarantees associated with any Lease.
(e) Explanation of how tenants are billed for utility costs
including water and trash removal.
(f) Operating statements of the Property for the last three (3) full
years and the current year to date.
(g) Copies of Certificate(s) of Occupancy.
(h) Engineering and physical inspection reports on the Property.
(i) Financial statements and credit conditions of all tenants.
(j) Sales history on all tenants for preceding three years.
(k) Copies of all existing mortgage information, including, but not
limited to, true and correct copies of all Prior Loan Documents.
(l) Listing of all capital expenditures of $10,000 or more for the
last three (3) years.
(m) Copies of all environmental reports, correspondence or
information pertaining to the Property as well as any adjoining property
or properties in the area(s) that have or are suspected of having
environmental problems.
(n) Listing of tenants' security deposits.
(o) List of all tenant bad-debt write-offs for the last full year
and the current year-to-day.
(p) Information regarding any pending litigation.
(q) Copies of any prior or pending tax appeals.
(r) List of accounts receivable as of April 30, 1999.
(s) Historical tenant billing statements.
(t) List of premises address for each tenant.
Buyer acknowledges that as of April 15, 1999, Buyer has received and
accepted Items (a) through (t), above.
Leases, Contracts and the documents described in this Section 5.2 shall be
referred to collectively as the "Information Materials." Buyer shall notify
Seller within three (3) days of receipt of the Information Materials whether any
Information Materials are missing. Seller makes no representation or warranty
whatsoever regarding the existence or availability of the foregoing and Seller
shall not be obligated to create or obtain any of the foregoing which are not in
existence and available to Seller. To the extent that any of these items do not
exist or are not in Seller's possession or at its reasonable disposal, Seller
will send a side letter to Buyer so stating. Buyer acknowledges and agrees that
any and all information, documents, surveys, studies and reports provided to
Buyer are provided for informational purposes only and do not constitute
representations or warranties of Seller of any kind, except as otherwise
provided in this Agreement.
5.3 Buyer shall promptly commence and use commercially reasonable efforts
to pursue its due diligence on the Property, which due diligence may include,
but shall not be limited to, the following items:
(a) Review of title and survey matters;
(b) Review of Contracts and Information Materials;
(c) Obtain and review engineering reports on structural condition
of the mechanical systems;
(d) Obtain and review environmental reports on oil, hazardous
waste, and asbestos;
(e) Review of applicable zoning and other land use controls, and
other permits, licenses, permissions, approvals and consents;
(f) Conduct tenant interviews, subject to Section 5.1 above; and
(g) Review of all Leases affecting the Property;
provided, however, that Buyer's due diligence shall include applying for Prior
Lender's consent to Buyer's assumption of Seller's obligations under the Prior
Loan Documents, including Buyer's responding to requests for additional
information from Prior Lender within three (3) business days of such requests.
Buyer shall complete its due diligence including, but not limited to the
foregoing, no later than May 24, 1999 (the "Diligence Date"). In the event that
Buyer's due diligence shall reveal any matters which are not acceptable to Buyer
in Buyer's sole and absolute discretion for any reason or for no reason, Buyer
may elect, by written notice to Seller, received by Seller on or before the
Diligence Date, not to proceed with this purchase, in which event this Agreement
shall terminate, the Escrowed Amount shall be returned to Buyer and this
Agreement shall be null and void without recourse to either party hereto (except
to the extent such recourse arises in connection with a provision of this
Agreement which is intended to survive termination); provided, however, that the
Inspection Fee shall remain the property of Seller. In the event Buyer does not
terminate this Agreement on or before the Diligence Date, the Escrowed Amount
shall become nonrefundable, except in the event of Seller's default under this
Agreement or in the event Buyer's conditions precedent to close under Section
6.5, below, are not met.
Buyer acknowledges that as of the Closing it will have had an opportunity
to conduct diligence on the Property and is acquiring the Property in its
current condition based on its diligence. Buyer further acknowledges that
neither Seller nor its employees, agents or representatives have made any
representation or warranty as to the condition of the Property or the presence
or absence of any hazardous materials on, in, under or within the Property or a
portion thereof which survive the Closing hereunder except as expressly provided
in this Agreement or in separate documents executed and delivered at Closing.
THE BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS TO BE CONVEYED BY SELLER
TO BUYER "AS IS," "WITH ALL FAULTS," AND SUBSTANTIALLY IN ITS CURRENT CONDITION.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY CONTAINED IN
THIS AGREEMENT OR IN SEPARATE DOCUMENTS EXECUTED AND DELIVERED AT CLOSING,
NEITHER SELLER NOR ANY AGENT, EMPLOYEE OR OTHER REPRESENTATIVE OF SELLER (OR
PURPORTED AGENT, EMPLOYEE OR OTHER REPRESENTATIVE OF SELLER) HAS MADE, AND THEY
SPECIFICALLY DISCLAIM, ANY GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE (AND
SELLER SHALL NOT HAVE ANY LIABILITY WHATSOEVER) AS TO THE VALUE, USES,
HABITABILITY, CONDITION, DESIGN, OPERATION, FINANCIAL CONDITION OR PROSPECTS, OR
FITNESS FOR PURPOSE OR USE OF THE PROPERTY (OR ANY PART THEREOF) OR THE
INFORMATION MATERIALS NOT PREPARED BY SELLER, OR ANY OTHER GUARANTEE,
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE WITH RESPECT TO ANY PORTION OF THE PROPERTY (OR ANY PART
THEREOF) OR THE INFORMATION MATERIALS NOT PREPARED BY SELLER. FURTHER, SELLER
SHALL HAVE NO LIABILITY FOR ANY LATENT, HIDDEN, OR PATENT DEFECT AS TO THE
PROPERTY OR THE FAILURE OF THE PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY
APPLICABLE LAWS AND REGULATIONS. IN PARTICULAR, BUYER ACKNOWLEDGES AND AGREES
THAT THE INFORMATION MATERIALS PROVIDED UNDER THIS AGREEMENT WHICH WERE NOT
PREPARED BY SELLER (AND ANY OTHER INFORMATION BUYER MAY HAVE OBTAINED REGARDING
IN ANY WAY ANY OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, ITS OPERATIONS OR
ITS FINANCIAL HISTORY OR PROSPECTS FROM SELLER OR ITS AGENTS, EMPLOYEES OR OTHER
REPRESENTATIVES BUT NOT INCLUDING INFORMATION PREPARED BY SELLER) IS DELIVERED
TO BUYER AS A COURTESY, WITHOUT REPRESENTATION OR WARRANTY AS TO ITS ACCURACY OR
COMPLETENESS (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN SEPARATE
DOCUMENTS EXECUTED AND DELIVERED AT CLOSING), AND NOT AS AN INDUCEMENT TO
ACQUIRE THE PROPERTY; THAT NOTHING CONTAINED IN SUCH DELIVERIES SHALL CONSTITUTE
OR BE DEEMED TO BE A GUARANTEE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
IN ANY REGARD AS TO ANY OF THE PROPERTY (EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT OR IN SEPARATE DOCUMENTS EXECUTED AND DELIVERED AT CLOSING); AND THAT
BUYER IS RELYING ONLY UPON THE PROVISIONS OF THIS AGREEMENT AND ITS OWN
INDEPENDENT ASSESSMENT OF THE PROPERTY AND ITS PROSPECTS IN DETERMINING WHETHER
TO ACQUIRE THE PROPERTY. BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON,
EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER, ITS
PROPERTY MANAGER OR ANY OF THEIR RESPECTIVE AGENTS, EXCEPT AS EXPRESSLY SET
FORTH HEREIN OR IN SEPARATE DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, AND
ACKNOWLEDGES THAT NO OTHER SUCH REPRESENTATIONS HAVE BEEN MADE. BUYER REPRESENTS
THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF REAL ESTATE
AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S
CONSULTANTS IN PURCHASING THE PROPERTY. BUYER WILL CONDUCT SUCH INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY, INCLUDING, BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY
UPON SAME. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS,
MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER
ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER OR ANY AGENT
OF SELLER OR ANY THIRD PARTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.3 SHALL
EXPRESSLY SURVIVE THE CLOSING, NOT MERGE WITH THE PROVISIONS OF ANY CLOSING
DOCUMENTS AND SHALL BE INCORPORATED INTO THE DEED. SELLER IS NOT LIABLE OR BOUND
IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION
PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED
TO HEREIN OR IN SEPARATE DOCUMENTS EXECUTED AND DELIVERED AT CLOSING. BUYER
ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE "AS IS" NATURE OF THIS SALE
AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE
ASSOCIATED WITH THE PROPERTY. BUYER HAS FULLY REVIEWED THE DISCLAIMERS AND
WAIVERS SET FORTH IN THIS AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS THE
SIGNIFICANCE AND EFFECT THEREOF.
5.4 Return of Documents. If this Agreement is terminated for any reason
whatsoever, Buyer shall promptly deliver to Seller all documents, plans,
surveys, contracts, Leases and the like delivered to Buyer or Buyer's agents,
representatives or designees by Seller or Seller's agents, representatives or
employees pursuant to this Agreement. In addition, Buyer shall promptly deliver
to Seller, at Seller's sole costs and expense, copies of all materials prepared
by third-parties obtained in connection with Buyer's diligence.
5.5 Confidentiality. Each party hereto agrees to maintain in confidence,
and not to discuss with or to disclose to any person or entity who is not a
party to this Agreement, any material term of this Agreement or any aspect of
the transactions contemplated hereby, except as provided in this Section. Seller
may publicly disclose the existence of this Agreement provided that the identity
of Buyer is not disclosed. Each party hereto may discuss with and disclose to
its directors, officers, employees, accountants, attorneys, existing or
prospective lenders, investment bankers, underwriters, rating agencies,
partners, consultants and other advisors to the extent such parties reasonably
need to know such information and are bound by a confidentiality obligation
identical in all material respects to the one created by this Section.
Additionally, each party may discuss and disclose such matters to the extent
necessary to comply with any requirements of the Securities and Exchange
Commission or in order to comply with any securities law or interpretation
thereof. This provision shall survive termination of this Agreement for a period
of two (2) years after termination but shall terminate upon Closing. Buyer and
Seller do not contemplate issuing a press release until after the Diligence
Date. Any press release to be made prior to Closing regarding any matter which
is the subject of the confidentiality obligation created in this Section shall
be subject to the reasonable approval of Buyer and Seller, respectively both as
to timing and content.
5.6 Indemnity. If any inspection or test disturbs any of the Property,
Buyer will restore the Property to substantially the same condition as existed
prior to any such inspection or test. Buyer shall keep the Property free and
clear of any liens and will indemnify, defend, and hold Seller harmless from all
losses, costs and damages including reasonable attorneys' fees incurred by
Seller as a result of such entry or investigation by or on behalf of Buyer other
than loss, cost or damage which is discovered (and not caused) by such
investigation as a result of pre-existing conditions. Notwithstanding anything
to the contrary contained in this Section 5.6, Buyer's indemnity of Seller
excludes any loss as a result of any latent defects, loss due to gross
negligence or willful misconduct of Seller, its agents, employees or
representatives or loss due to discovery of environmental contamination;
provided however, that neither Buyer, its employees, nor agents shall notify any
third party (including, without limitation, any governmental agency) of the
results of any such reports except as otherwise expressly required by applicable
law and then only after written notice to and consultation with Seller. The
obligations of Buyer contained in this Section 5.6 shall survive the termination
of this Agreement for any reason for (a) a period of time equal to the statute
of limitations applicable to the claim for the harm alleged with respect to
third-party claims and (b) for a period of two (2) years with respect to claims
of Seller.
ARTICLE 6
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS
6.1 Promptly following the execution of this Agreement Seller shall
provide Buyer with
(a) a copy of the most recent survey or plat of the Real Property in
Seller's possession, if any (the "Survey"); and
(b) a commitment for a standard ALTA Owner's Policy of Title
Insurance showing Purchaser as insured, fee simple title to the Real
Property as the insured estate and the Purchase Price as the
insurance coverage amount (the "Title Commitment").
Buyer shall obtain, at its own cost and expense, an up-date of the
existing ALTA as-built survey (the "New Survey") of the Real Property.
If (i) any matter disclosed on the New Survey or (ii) matters listed as
exceptions in the Title Commitment are not each satisfactory to Buyer, in its
sole and absolute discretion, it shall, within fourteen (14) days following
receipt of the later of (a) the Title Commitment, (b) copies of all title
exception documents and (c) the New Survey provide Seller with written notice of
such objections and if Seller is unable or unwilling to cure such objections,
prior to the Diligence Date, Buyer may terminate this Agreement as provided in
Section 5.3 above or waive such objection and proceed to Closing. Seller shall
in all events be obligated to cure all objections constituting mortgages or
other voluntary encumbrances securing the repayment of money, including, but not
limited to, mechanics', materialmen's, laborers' or artisans' liens, on or
before the Closing Date, other than the title exceptions related to the Prior
Note, Prior Deed of Trust and Prior Loan Documents or liens incurred by or on
behalf of tenants. To enable Seller to convey, Seller may, at the Closing use
the Purchase Price or any portion thereof to clear title. Those exceptions or
title deficiencies that appear on the Title Commitment and/or are disclosed on
the New Survey and (i) are not objected to by Buyer or (ii) are waived in
writing by Buyer shall be the "Permitted Encumbrances".
6.2 On the Closing Date, Seller shall convey by Special Warranty Deed to
Buyer, title to all of the Real Property and the Improvements free and clear of
all liens, encumbrances, conditions, easements, assessments, restrictions and
other conditions, except for the following:
(a) The lien, if any, for real estate taxes not yet due and
payable;
(b) The Permitted Encumbrances;
(c) The Leases disclosed to Buyer;
(d) All zoning, building and other laws applicable to the
Property; and
(e) All matters which arise after the effective date of the Title
Commitment which are agreed upon or consented to by Buyer in writing.
6.3 At the Closing, Seller shall assign the Leases and Contracts which are
not to be terminated and intangible property, if any, to Buyer and Buyer shall
assume Seller's obligations thereunder from and after the Closing Date and
Seller shall convey the Personal Property to Buyer by quitclaim bill of sale.
6.4 Representations and Warranties
6.4.1 Seller hereby represents and warrants to Buyer as of the date
of this Agreement as follows:
(a) Organization and Power. Seller is a general partnership validly
existing under the laws of the State of Texas with all necessary legal
power to enter into and perform its obligations hereunder and under any
document or instrument required hereunder to be executed and delivered on
behalf of Seller.
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Seller are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Seller and (assuming valid execution and delivery by Buyer)
is a legal, valid and binding obligation of Seller enforceable against it
in accordance with its terms.
(c) Rent Roll. The rent roll attached hereto as Schedule C has been
prepared by Seller's property manager based on the Leases and is true,
accurate and complete in all material respects.
(d) Governmental Notices. Seller has not received any written notice
from a government agency that the location, construction, occupancy,
operation, and use of the Property (including any improvements and
equipment forming any part thereof) violate any applicable law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority or any board of fire underwriters (or similar body), or any
restrictive covenant or deed restriction or zoning ordinance or
classification affecting the Property, including, without limitation, all
applicable building codes, flood disaster laws, and health and
environmental laws and regulations (hereinafter sometime collectively
called "Applicable Laws"). Seller has not received any written notice from
a governmental agency that the Property and Seller are currently subject
to any existing pending or threatened investigation or inquiry by any
governmental authority or to any remedial obligations under any Applicable
Laws pertaining to health or the environment.
(e) No Oral Agreements. There are no oral agreements affecting the
Property that will be enforceable after Closing against Buyer or the
Property.
6.4.2 The representations and warranties contained in Section
6.4.1(c), (d) and (e) are hereby qualified to Seller's actual knowledge without
further inquiry, except as provided below. Each representation or warranty
contained in Section 6.4.1 is subject to being updated by Seller in writing on
or before the Diligence Date and shall be deemed to have been amended and
updated by any information delivered to or made available to Buyer and any other
information obtained by Buyer in connection with its diligence (including but
not limited to tenant estoppel certificates). For purposes of Section 6.4.1
actual knowledge of Seller without further inquiry shall mean the actual
awareness of Rock M. D'Errico, H. Lewis Swain and Devon Glenn provided that such
individuals have no obligation to make further inquiry of any persons other than
reasonable inquiry of the property manager, Gary Bullock and the local property
manager, Pat Davis of Davis and Company.
6.4.3 Buyer hereby represents and warrants to Seller as of the date
of this Agreement as follows:
(a) Organization and Power. Buyer is a real estate investment trust
organized, existing and in good standing under the laws of the State of
Texas and has the requisite power and authority to enter into and perform
the terms of this Agreement.
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Buyer are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Buyer and (assuming valid execution and delivery by Seller)
is a legal, valid and binding obligation of Buyer enforceable against it
in accordance with its terms.
6.4.4 The representations and warranties of Seller contained in
Section 6.4.1 shall not survive Closing.
6.4.5 The representations and warranties of Buyer contained in
Section 6.4.3 shall not survive Closing.
6.5 The obligations of Buyer to consummate the transaction contemplated by
this Agreement are subject to:
(a) The representations and warranties made by Seller in this
Agreement being true and correct in all material respects on and as of the
Closing Date with the same force and effect as though such representations
and warranties had been made as of the Closing Date;
(b) Buyer and Prior Lender agreeing upon the form and substance of
the assumption documents to be executed by Buyer of Seller's obligations
under the Prior Loan Documents, and the Prior Lender's consent thereto;
and
(c) Buyer receiving estoppel certificates from United Supermarkets,
World Gym, Cinemark and Showtime Video.
6.6 The obligations of Seller to consummate the transaction contemplated
by this Agreement are subject to:
(a) The representations and warranties made by Buyer in this
Agreement being true and correct in all material respects on and as of the
Closing Date with the same force and effect as though such representations
and warranties had been made as of the Closing Date; and
(b) Seller and Prior Lender agreeing upon the form and substance of
the assumption documents to be executed by Buyer of Seller's obligations
under the Prior Loan Documents, and the Prior Lender's consent thereto.
ARTICLE 7
CLOSING
7.1 The consummation of the purchase and sale contemplated in this
Agreement (the "Closing") shall occur at the offices of the Title Company,
Attention: James Putnam, 1980 Post Oak Boulevard, Houston Texas 77056 at a time
and on a date mutually acceptable to both Buyer and Seller on or before the
Diligence Date (the "Closing Date"). It is agreed that time is of the essence in
this Agreement.
7.2 On the Closing Date Seller shall deliver or cause to be delivered each
of the following items to Buyer:
(a) A duly executed and acknowledged Special Warranty Deed conveying
the Real Property and the Improvements to Buyer;
(b) Duly executed quitclaim bill of sale conveying the Personal
Property to Buyer;
(c) Duly executed assignment and assumption of Leases (the
"Assignment of Leases");
(d) Duly executed assignment and assumption of Contracts and
intangible property (the "Assignment of Contracts");
(e) Duly executed assignment and assumption of Seller's obligations
under the Prior Loan Documents together with Prior Lender's written
consent thereto;
(f) Transfer tax statements (or similar affidavits or forms), if
required of the Seller by local law to effect transfer or recordation of
the Deed;
(g) Certificate of non-foreign status from Seller reasonably
acceptable to Buyer in form and substance;
(h) Customary affidavits and indemnities sufficient for the Title
Company to delete any exceptions for mechanic's or materialmen's liens
from Buyer's title policy and such other affidavits relating to such title
policy as the Title Company may reasonably request;
(i) Counterpart original of the closing statement setting forth the
Purchase Price, the closing adjustments and the application of the
Purchase Price as adjusted (the "Closing Statement");
(j) Original tenant estoppel certificates, to the extent received;
(k) All business and accounting records pertaining to the operation
of the Property in Seller's possession;
(l) All original Leases and tenant correspondence in each case, if
in Seller's possession or in the possession of Seller's leasing agent or
property manager;
(m) Keys to all locks which manager has in its possession; and
(n) Notice letters from Seller and Buyer to tenants of the sale of
the Property and assignment of the Leases.
(o) At Seller's expense (except for the cost of any endorsements
which are to be paid by Buyer), an Owner's Title Policy based on the Title
Commitment.
(p) All documents customarily and reasonably required by Title
Company confirming Seller's authority to sell the Property.
7.3 On the Closing Date Buyer shall deliver or cause to be delivered at
its expense each of the following to Seller:
(a) Purchase Price for the Property in immediately available federal
funds by 3:00 p.m. Eastern Time, as such Purchase Price may have been
further adjusted pursuant to the provisions of this Agreement and credited
for any portion of the Escrowed Amount, in the manner provided for in
Article 3;
(b) Assignment of Leases;
(c) Assignment of Contracts;
(d) Counterpart original of the Closing Statement;
(e) Such other instruments as Seller may reasonably request to
effectuate the transaction contemplated by this Agreement; and
(f) Duly executed assignment and assumption of Seller's obligations
under the Prior Loan Documents together with Prior Lender's written
consent thereto.
ARTICLE 8
CASUALTY AND CONDEMNATION
8.1 If the Improvements are materially damaged by fire or any other
casualty and are not substantially restored to the condition immediately prior
to such casualty before the Closing Date, Buyer shall have the following
elections:
(a) to purchase the Property in its then condition and pay the
Purchase Price, in which event Seller shall pay over or assign to Buyer as
the case may be, on the Closing Date, all amounts recovered or recoverable
by Seller on account of any insurance as a result of such casualty plus
the amount of any applicable deductible, less any amounts reasonably
expended by Seller for partial restoration; or
(b) if any portion of the Improvements shall have been substantially
destroyed (in Buyer's sole and absolute discretion), to terminate this
Agreement by giving notice of termination to Seller on or before that date
which is thirty (30) days after the occurrence of the fire or other
casualty or on the Closing Date, whichever occurs first, in which event
the Title Company shall return the Escrowed Amount to Buyer, this
Agreement shall terminate and neither Seller nor Buyer shall have any
recourse against the other (except to the extent such recourse arises in
connection with a provision of this Agreement which is intended to survive
termination). For purposes of this subparagraph (b), "substantially
destroyed" shall mean damage, in Seller's reasonable judgment, greater
than $500,000.00.
8.2 If any portion of or interest in the Property shall be taken or is in
the process of being taken by exercise of the power of eminent domain or if any
governmental authority notifies Seller prior to the Closing Date of its intent
to take or acquire any portion of or interest in the Property (each an "Eminent
Domain Taking"), Seller shall give notice promptly to Buyer of such event and
Buyer shall have the option to terminate this Agreement by providing notice to
Seller to such effect on or before the date which is ten (10) days from Seller's
notice to Buyer of such Eminent Domain Taking or on the Closing Date, whichever
occurs first, in which event the Title Company shall return the Escrowed Amount
to Buyer, this Agreement shall terminate, and neither Seller nor Buyer shall
have any recourse against the other. If Buyer does not timely notify Seller of
its election to terminate this Agreement, Buyer shall purchase the Property and
pay the Purchase Price, and Seller shall pay over or assign to Buyer on delivery
of the deed all awards recovered or recoverable by Seller on account of such
Eminent Domain Taking, less any amounts reasonably expended by Seller in
obtaining such award.
ARTICLE 9
BROKERAGE COMMISSIONS
Seller represents and warrants to Buyer that Seller has not used or
employed any broker or brokers in connection with the negotiation, execution or
consummation of the transaction contemplated by this Agreement (a "Seller's
Agent"). Seller will indemnify, defend and hold Buyer harmless from and against
any claims of a Seller's Agent for any commission, finder's fee, or other
compensation in connection with the transactions contemplated by this Agreement.
Buyer represents and warrants to Seller that (a) Buyer has not used or
employed any broker or brokers in connection with the negotiation, execution or
consummation of the transaction contemplated by this Agreement other than Dale
Lewis of Graco Real Estate Development, Inc. ("Buyer's Agent"); and (b) Buyer's
Agent is entitled to a commission in the amount of $100,000 ("Buyer's Agent's
Commission") pursuant to a separate agreement between Buyer and Buyer's Agent.
Buyer will indemnify, defend and hold Seller harmless from and against any
claims of Buyer's Agent for Buyer's Agent's Commission, any other commission,
finder's fee, or other compensation in connection with the transactions
contemplated by this Agreement; provided, however, if the Closing contemplated
by this Agreement occurs, Seller agrees to pay Buyer's Agent's Commission.
Buyer and Seller each hereby agree to indemnify, defend and hold the other
harmless from and against any claims, losses, damages, costs, or expenses
(including, but not limited to, reasonable attorney's fees) of any kind or
character which arise as a result of breach of the foregoing representation and
warranty. This Section 9 shall survive the Closing or earlier termination of the
Agreement.
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES
10.1 In the event that Seller shall have failed in any material respect
adverse to Buyer on the Closing Date to have performed any of the covenants and
agreements contained in this Agreement which are to be performed by Seller on or
before the Closing Date, Buyer shall have the following remedies, (i) the right
to take any and all legal actions necessary to compel Seller's specific
performance hereunder (it being acknowledged that damages at law would be an
inadequate remedy), and to consummate the transaction contemplated by this
Agreement in accordance with the provisions of this Agreement (such conveyance
shall be deemed to satisfy and waive any other remedy) or (ii) the right to
terminate this Agreement and receive the Escrowed Amount. Notwithstanding
anything to the contrary contained herein, nothing in this Section 10.1 shall
limit Buyer's rights against Seller for damages due to breach of
confidentiality, breach of representations and warranties, or claims under
indemnities.
10.2 If Buyer defaults in its obligation to close hereunder, Seller shall
be entitled, as its sole and exclusive remedy, to receive the Escrowed Amount as
liquidated damages, in lieu of all other remedies available to Seller at law or
in equity for such default, and Buyer shall direct the Title Company to release
the Escrowed Amount to Seller. Seller and Buyer agree that the damages resulting
to Seller as a result of such default by Buyer as of the date of this Agreement
are difficult or impossible to ascertain and the liquidated damages set forth in
the preceding sentence constitute Buyer's and Seller's reasonable estimate of
such damages. In the event that Buyer breaches the provisions of Section 5.5,
above, in any material respect adverse to Seller on or before the Closing Date,
Seller shall have the right to immediately terminate this Agreement by providing
written notice to Buyer, which termination shall be effective as of the date of
said notice, whereupon the Escrowed Amount shall be promptly returned to Buyer.
If Buyer shall have failed in any material respect adverse to Seller on or
before the Closing Date to have performed any of the other covenants and
agreements contained in this Agreement which are to be performed by Buyer on or
before the Closing Date, Seller shall provide written notice to Buyer of such
failure and Buyer shall have three (3) business days from the date of such
notice to cure such failure; if Buyer shall fail to cure such failure with the
said cure period, Seller shall have the right to immediately terminate this
Agreement by providing written notice to Buyer, which termination shall be
effective as of the date of said notice, whereupon the Escrowed Amount shall be
promptly returned to Buyer; provided, however, that Seller's obligation to
provide Buyer with a notice and cure period shall not apply if Buyer defaults in
its obligations to close hereunder or if Buyer breaches the provisions of
Section 5.5 as described above. Notwithstanding anything to the contrary
contained herein, nothing in this Section 10.2 shall limit Seller's rights
against Buyer for damages due to breach of confidentiality, breach of
representations and warranties, or claims under indemnities.
ARTICLE 11
MISCELLANEOUS
11.1 Buyer may only assign or transfer its rights under this Agreement to
an entity owned, or controlled by Buyer or which owns or controls Buyer. The
covenants and agreements contained in this Agreement shall extend to and be
obligatory upon the permitted successors and assigns of the respective parties
to this Agreement.
11.2 Except as otherwise specifically provided herein, any notice required
or permitted to be delivered under this Agreement shall be in writing and shall
be deemed given if (i) delivered by hand during regular business hours, (ii)
sent by United States Postal Service, registered or certified mail, postage
prepaid, return receipt requested, (iii) sent by a reputable overnight express
mail service that provides tracing and proof of receipt or refusal of items
mailed or (iv) sent by telecopier or facsimile transmission with confirmation
copy by notice methods (i), (ii) or (iii), above, addressed to Seller or Buyer,
as the case may be, at the address or addresses set forth below or such other
addresses as the parties may designate in a notice similarly sent. Any notice
given by a party to Title Company shall be simultaneously given to the other
party. Any notice given by a party to the other party relating to its
entitlement to the Escrowed Amount shall be simultaneously given to the Title
Company.
(1) If to Buyer:
Weingarten Realty Investors
2600 Citadel Plaza Drive, Suite 300
Houston, Texas 77008
Attention: President
Telecopy: (713) 866-6049
with a copy to:
Weingarten Realty Management Company
2600 Citadel Plaza Drive, Suite 300
Houston, Texas 77008
Attention: Mark D. Stout
Associate Counsel
Telecopy: (713) 866-6049
(2) If to Seller:
Amarillo Bell Associates
c/o The Boyer Company
Attn: Mr. H. Lewis Swain
127 South 500 East, Suite 100
Salt Lake City, Utah 84102
Telecopy: (801) 521-4793
with a copy to:
Amarillo Bell Associates
c/o PaineWebber Properties, Incorporated
Attn: Mr. Rock M. D'Errico
265 Franklin Street, 15th Floor
Boston, Massachusetts 02110
Telecopy: (617) 345-8725
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Andrew C. Sucoff, Esq.
Telecopy: (617) 277-8591
with a copy to:
Parr, Waddoups, Brown, Gee & Loveless
185 South State Street, Suite 1300
Salt Lake City, Utah 84147
Attention: Victor A. Taylor, Esq.
Telecopy: (801) 532-7750
(3) If to the Title Company:
Stewart Title Company, Houston Division
1980 Post Oak Boulevard
Houston, Texas 77056
Attention: James Putnam
Telecopy: (713) 629-2255
11.3 Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words of a singular number shall be
held to include the plural and vice versa, unless the context requires
otherwise.
11.4 The captions used in connection with the Articles of this Agreement
are for convenience only and shall not be deemed to extend, limit or otherwise
define or construe the meaning of the language of this Agreement.
11.5 Nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties hereto and their respective successors
and assigns, any rights or remedies under or by reason of this Agreement.
11.6 This Agreement may be amended only by a written instrument executed
by Seller and Buyer (or Buyer's assignee or transferee).
11.7 This Agreement embodies the entire agreement between Seller and Buyer
with respect to the transaction contemplated in this Agreement, and there have
been and are no covenants, agreements, representations, warranties or
restrictions between Seller and Buyer with regard thereto other than those set
forth or provided for in this Agreement.
11.8 This Agreement shall be construed under and in accordance with the
laws of the State of Texas.
11.9 This Agreement may be executed in two (2) or more counterparts, each
of which shall be an original but such counterparts together shall constitute
one and the same instrument notwithstanding that both Buyer and Seller are not
signatory to the same counterpart.
11.10 The Title Company has executed this Agreement only for the purpose
of agreeing to perform the duties assigned to it under this Agreement. On or
before the Diligence Date, Title Company is hereby authorized and directed to
release the Escrowed Amount to Buyer promptly upon Buyer's written request,
without joinder by Seller and not withstanding any objection interposed by
Seller. This Agreement shall terminate upon any such request from Buyer pursuant
to Section 5.3 above. After the Diligence Date the Title Company shall, upon
receiving a copy of a notice given by a party in accordance with this Agreement
claiming entitlement to all or a portion of the Escrowed Amount, give a notice
to the other party that such claim of entitlement has been made. If the Escrowed
Amount is in the form of a letter of credit and the expiry thereof has not been
extended, Title Company shall cause the letter of credit to be drawn upon and
hold the proceeds as the Escrowed Amount. The Title Company shall not cause or
permit any portion of the Escrowed Amount to be disbursed until the expiration
of five (5) days of giving such notice whereupon, if the party to whom such
notice was given has not given the Title Company notice of its objection to a
disbursement in accordance with the claim of entitlement, the Title Company
shall cause a disbursement of the Escrowed Amount as requested. If such party
timely objects, however, the Title Company shall retain the Escrowed Amount and
not disburse any portion of the same unless directed by the mutual written
direction of the parties. The Title Company shall at all times disburse the
Escrowed Amount as required in a mutual written direction of the parties.
11.11 In the event of any disagreement between the parties, the Title
Company shall retain all deposits pending instructions mutually agreed to by
Seller and Buyer. In the event there is no mutual agreement by Seller and Buyer
for disbursements, the Title Company shall hold said deposits pending a court
order to disburse. The Title Company may conclusively rely on the authenticity,
validity and effectiveness of any writing delivered to it, and Title Company
shall not be obligated to make any investigation or determination, except as
provided in the case of disputes as to the truth and accuracy of any information
contained therein. Buyer and Seller agree to defend, indemnify and hold Title
Company harmless from any liabilities, suits, claims, or expenses arising from
or out of or in connection with Title Company's acts or failure to act
hereunder, unless caused or created as a result of Title Company's gross
negligence, and Title Company shall be entitled to reimbursement by Buyer and/or
Seller for all reasonable costs and expenses incurred in the performance of its
duties hereunder including, without limitation, all out-of-pocket expenses and
reasonable attorneys' fees of counsel retained by Title Company. Any such costs
and expenses not paid by the parties after billing and supporting documentation
by Title Company may be paid by Title Company out of the Escrowed Amount. If
there is a settlement by Buyer and Seller prior to a court order, Buyer and
Seller will share equally in the expenses incurred by the Title Company.
Otherwise, the non-prevailing party shall assume full responsibility for the
Title Company's expenses. Title Company is not required to advance or expend or
risk its own funds or otherwise incur personal liability in performance of its
duties hereunder and it may require advancement of funds by the parties.
11.12 Time is expressly declared to be of the essence of this Agreement.
11.13 The obligations of Seller hereunder shall be binding only on the
Property and neither Buyer nor anyone claiming by, through or under Buyer shall
be entitled to obtain any judgment extending liability beyond the Property or
creating personal liability on the part of the officers, directors,
shareholders, or agents of Seller or any of their successors; provided, however,
that if the Closing as contemplated by this Agreement occurs, the provisions of
this Section 11.13 shall not apply to those obligations of Seller which are
specifically provided to survive the Closing. The obligations of Buyer hereunder
shall be binding only on the assets of Buyer and neither Seller nor anyone
claiming by, through or under Seller shall be entitled to obtain any judgment
creating personal liability on the part of the partners, officers, shareholders,
or agents of Buyer or any of their successors or any affiliated entities.
11.14 As used herein, the term "business day" shall mean any day other
than a Saturday, Sunday or federal holiday.
ARTICLE 12
IRS FORM 1099-S DESIGNATION
12.1 In order to comply with information reporting requirements of Section
6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations thereunder, the parties agree (1) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Schedule D at or prior to
the Closing to designate the Title Company (the "Designee") as the party who
shall be responsible for reporting the contemplated sale of the Property to the
Internal Revenue Service (the "IRS") on IRS Form 1099-S; (2) to provide the
Designee with the information necessary to complete Form 1099-S; (3) that the
Designee shall not be liable for the actions taken under this Agreement, or for
the consequences of those actions, except as they may be the result of gross
negligence or willful misconduct on the part of the Designee; and (4) that the
Designee shall be indemnified by the parties for any costs or expenses incurred
as a result of the actions taken hereunder, except as they may be the result of
gross negligence or willful misconduct on the part of the Designee. The Designee
shall provide all parties to this transaction with copies of the IRS Forms
1099-S filed with the IRS and with any other documents used to complete IRS Form
1099-S.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first set forth above.
SELLER:
Amarillo Bell Associates, a Texas general
partnership
By: Amarillo G.C. Associates, Ltd., a Utah
limited partnership, its General Partner
By: The Boyer Company, L.C., a Utah
limited liability company, its
General Partner
By:/s/H. Lewis Swain
-----------------
Name: H. Lewis Swain
Title: Vice President
By: PaineWebber Income Properties Five
Limited Partnership, a Delaware limited
partnership, its General Partner
By: Fifth Income Properties Fund, Inc.,
a Delaware corporation, its
General Partner
By:/s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
Weingarten Realty Investors, a Texas
real estate investment trust
By: /s/ M. Candace DuFour
----------------------
Name: M. Candace DuFour
Title: Vice President
TITLE COMPANY:
STEWART TITLE COMPANY
By: /s/ James Putnam
------------------
Name: James Putnam
Title: Vice President
<PAGE>
REINSTATEMENT AND FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS REINSTATEMENT AND FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
(this Amendment) is entered into between AMARILLO BELL ASSOCIATES, a Texas
general partnership (hereinafter called Seller), and WEINGARTEN REALTY
INVESTORS, a Texas real estate investment trust (hereinafter called Buyer),
effective as of the date hereinafter provided.
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Agreement executed by Buyer and Seller effective as of April 9, 1999, although
not necessarily executed by the parties on that date (the Agreement);
WHEREAS, the Agreement was terminated by Buyer on May 24, 1999;
WHEREAS, Seller and Buyer desire to reinstate the Agreement and make
certain amendments and modifications to the Agreement.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Seller and Buyer hereby agree as follows:
I. Seller and Buyer each confirms the truth and accuracy of the recitals, each
of which are made a part of this Amendment.
II. All initial capitalized terms not defined herein shall have the meaning
ascribed to such terms in the Agreement.
III. Seller and Buyer hereby reinstate the Agreement, subject to the amendments
and modifications contained herein, and hereby agree to all terms, covenants,
agreements, and conditions set forth in the Agreement, as modified by this
Amendment.
IV. Section 5.3 of the Agreement is hereby modified as follows: The first
sentence of the first paragraph on page 9 of the Agreement is hereby deleted in
its entirety, and the following sentence is added to Section 5.3 in replacement
of that deleted sentence:
Buyer shall complete its due diligence including, but not limited to
the foregoing, no later than June 3, 1999 (the Diligence Date).
It is the intention of Seller and Buyer that by changing the Diligence
Date as provided in this paragraph 3, Seller and Buyer are also changing
all other deadlines contained in the Agreement which are based on or
otherwise tied to the Diligence Date including, but not limited to, the
Closing Date which shall occur on or before the Diligence Date, as hereby
amended. The term Diligence Date as that term is used in the Agreement
shall mean the Diligence Date as extended and redefined in this Amendment.
V. Buyer hereby reaffirms and confirms each of its representations and
warranties contained in the Agreement. Buyer hereby certifies to Seller that
each of Buyers representations and warranties contained in the Agreement are
true and correct as of the date of this Amendment.
VI. Seller hereby reaffirms and confirms each of its representations and
warranties contained in the Agreement. Seller hereby certifies to Buyer that
each of Sellers representations and warranties contained in the Agreement are
true and correct as of the date of this Agreement.
VII. Notwithstanding anything to the contrary contained herein, Buyer and Seller
acknowledged and agree that the obligations of Seller to consummate the
transaction contemplated in the Agreement remain as set forth in Section 6.6 of
the Agreement, including, but not limited, to Section 6.6(b).
<PAGE>
VIII. Except as modified hereby, the terms and conditions of the Agreement shall
continue in full force and effect. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one agreement. In order to expedite the execution of this Amendment,
a facsimile signature shall be binding and have the same effect as an original
signature.
[END OF PAGE 2]
<PAGE>
EXECUTED by Buyer this 24 day of May, 1999 to be effective as of May 24,
1999.
WEINGARTEN REALTY INVESTORS
a Texas real estate investment trust
By: /s/ M. Candace DuFour
---------------------
M. Candace DuFour
Vice President
BUYER
EXECUTED by Seller this 24 day of May, 1999 to be effective as of May 24,
1999.
AMARILLO BELL ASSOCIATES,
a Texas general partnership
By: Amarillo G.C. Associates, Ltd., a
Utah limited partnership, its
General Partner
By: The Boyer Company, L.C., a Utah
limited liability company, its
General Partner
By: /s/ H. Lewis Swain
-------------------
Name: H. Lewis Swain
Title: Vice President
By: PaineWebber Income Properties Five
Limited Partnership, a Delaware
limited partnership, its General
Partner
By:Fifth Income Properties Fund, Inc.,
a Delaware corporation, its General
Partner
By: /s/ Rock M. D'Errico
---------------------
Name: Rock M. D'Errico
Title: Vice President
SELLER
<PAGE>
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this Amendment) is
entered into between AMARILLO BELL ASSOCIATES, a Texas general partnership
(hereinafter called Seller), and WEINGARTEN REALTY INVESTORS, a Texas real
estate investment trust (hereinafter called Buyer), effective as of the date
hereinafter provided.
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Agreement executed by Buyer and Seller effective as of April 9, 1999, although
not necessarily executed by the parties on that date (the Agreement);
WHEREAS, the Agreement was terminated by Buyer on May 24, 1999;
WHEREAS, Seller and Buyer entered into that certain Reinstatement and
First Amendment to Purchase and Sale Agreement dated effective as of May 24,
1999 (the Reinstatement) wherein, among other things, Seller and Buyer
reinstated the terms of the Agreement and extended the Diligence Date and the
date of the Closing to June 3, 1999;
WHEREAS, Seller and Buyer desire to amend the Agreement to extend further
the Diligence Date and the date of the Closing.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Seller and Buyer hereby agree as follows:
I. Seller and Buyer each confirms the truth and accuracy of the recitals, each
of which are made a part of this Amendment.
II. All initial capitalized terms not defined herein shall have the meaning
ascribed to such terms in the Agreement.
III. Section 5.3 of the Agreement is hereby modified as follows: The first
sentence of the first paragraph on page 9 of the Agreement is hereby deleted in
its entirety, and the following sentence is added to Section 5.3 in replacement
of that deleted sentence:
Buyer shall complete its due diligence including, but not limited to
the foregoing, no later than June 9, 1999 (the Diligence Date).
It is the intention of Seller and Buyer that by changing the Diligence
Date as provided in this paragraph 3, Seller and Buyer are also changing
all other deadlines contained in the Agreement which are based on or
otherwise tied to the Diligence Date including, but not limited to, the
Closing Date which shall occur on or before the Diligence Date, as hereby
amended. The term Diligence Date as that term is used in the Agreement
shall mean the Diligence Date as extended and redefined in this Amendment.
IV. Notwithstanding anything to the contrary contained herein, Buyer and Seller
acknowledged and agree that the obligations of Seller to consummate the
transaction contemplated in the Agreement remain as set forth in Section 6.6 of
the Agreement, including, but not limited, to Section 6.6(b).
V. Except as modified hereby, the terms and conditions of the Agreement shall
continue in full force and effect. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one agreement. In order to expedite the execution of this Amendment,
a facsimile signature shall be binding and have the same effect as an original
signature.
[END OF PAGE 2]
<PAGE>
EXECUTED by Buyer this 3rd day of June, 1999 to be effective as of June 3,
1999.
WEINGARTEN REALTY INVESTORS
a Texas real estate investment trust
By: /s/ M. Candace DuFour
---------------------
M. Candace DuFour
Vice President
BUYER
EXECUTED by Seller this 3rd day of June, 1999 to be effective as of June
3, 1999.
AMARILLO BELL ASSOCIATES,
a Texas general partnership
By: Amarillo G.C. Associates, Ltd., a
Utah limited partnership, its
General Partner
By: The Boyer Company, L.C., a Utah
limited liability company, its
General Partner
By: /s/ H. Lewis Swain
-------------------
Name: H. Lewis Swain
Title: Vice President
By: PaineWebber Income Properties Five
Limited Partnership, a Delaware
limited partnership, its General
Partner
By:Fifth Income Properties Fund, Inc.,
a Delaware corporation, its General
Partner
By: /s/ Rock M. D'Errico
---------------------
Name: Rock M. D'Errico
Title: Vice President
SELLER
<PAGE>
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this Amendment) is
entered into between AMARILLO BELL ASSOCIATES, a Texas general partnership
(hereinafter called Seller), and WEINGARTEN REALTY INVESTORS, a Texas real
estate investment trust (hereinafter called Buyer), effective as of the date
hereinafter provided.
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Agreement executed by Buyer and Seller effective as of April 9, 1999, although
not necessarily executed by the parties on that date (the Agreement);
WHEREAS, the Agreement was terminated by Buyer on May 24, 1999;
WHEREAS, Seller and Buyer entered into that certain Reinstatement and
First Amendment to Purchase and Sale Agreement dated effective as of May 24,
1999 (the Reinstatement) wherein, among other things, Seller and Buyer
reinstated the terms of the Agreement and extended the Diligence Date and the
date of the Closing to June 3, 1999;
WHEREAS, Seller and Buyer entered into that certain Second Amendment to
Purchase and Sale Agreement dated effective June 3, 1999 wherein Seller and
Buyer extended the Diligence Date and the date of the Closing to June 9, 1999.
WHEREAS, Seller and Buyer desire to amend the Agreement to extend further
the Diligence Date and the date of the Closing.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Seller and Buyer hereby agree as follows:
I. Seller and Buyer each confirms the truth and accuracy of the recitals, each
of which are made a part of this Amendment.
II. All initial capitalized terms not defined herein shall have the meaning
ascribed to such terms in the Agreement.
III. Section 5.3 of the Agreement is hereby modified as follows: The first
sentence of the first paragraph on page 9 of the Agreement is hereby deleted in
its entirety, and the following sentence is added to Section 5.3 in replacement
of that deleted sentence:
Buyer shall complete its due diligence including, but not limited to
the foregoing, no later than June 10, 1999 (the Diligence Date).
It is the intention of Seller and Buyer that by changing the Diligence
Date as provided in this paragraph 3, Seller and Buyer are also changing
all other deadlines contained in the Agreement which are based on or
otherwise tied to the Diligence Date including, but not limited to, the
Closing Date which shall occur on or before the Diligence Date, as hereby
amended. The term Diligence Date as that term is used in the Agreement
shall mean the Diligence Date as extended and redefined in this Amendment.
IV. Notwithstanding anything to the contrary contained herein, Buyer and Seller
acknowledged and agree that the obligations of Seller to consummate the
transaction contemplated in the Agreement remain as set forth in Section 6.6 of
the Agreement, including, but not limited, to Section 6.6(b).
<PAGE>
V. Except as modified hereby, the terms and conditions of the Agreement shall
continue in full force and effect. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one agreement. In order to expedite the execution of this Amendment,
a facsimile signature shall be binding and have the same effect as an original
signature.
[END OF PAGE 2]
<PAGE>
EXECUTED by Buyer this 9th day of June, 1999 to be effective as of June 9,
1999.
WEINGARTEN REALTY INVESTORS
a Texas real estate investment trust
By: /s/ M. Candace DuFour
---------------------
M. Candace DuFour
Vice President
BUYER
EXECUTED by Seller this 9th day of June, 1999 to be effective as of June
9, 1999.
AMARILLO BELL ASSOCIATES,
a Texas general partnership
By: Amarillo G.C. Associates, Ltd., a
Utah limited partnership, its
General Partner
By: The Boyer Company, L.C., a Utah
limited liability company, its
General Partner
By: /s/ H. Lewis Swain
-------------------
Name: H. Lewis Swain
Title: Vice President
By: PaineWebber Income Properties Five
Limited Partnership, a Delaware
limited partnership, its General
Partner
By:Fifth Income Properties Fund, Inc.,
a Delaware corporation, its General
Partner
By: /s/ Rock M. D'Errico
---------------------
Name: Rock M. D'Errico
Title: Vice President
SELLER
<PAGE>
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this Amendment) is
entered into between AMARILLO BELL ASSOCIATES, a Texas general partnership
(hereinafter called Seller), and WEINGARTEN REALTY INVESTORS, a Texas real
estate investment trust (hereinafter called Buyer), effective as of the date
hereinafter provided.
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Agreement executed by Buyer and Seller effective as of April 9, 1999, although
not necessarily executed by the parties on that date (the Agreement);
WHEREAS, the Agreement was terminated by Buyer on May 24, 1999;
WHEREAS, Seller and Buyer entered into that certain Reinstatement and
First Amendment to Purchase and Sale Agreement dated effective as of May 24,
1999 (the Reinstatement) wherein, among other things, Seller and Buyer
reinstated the terms of the Agreement and extended the Diligence Date and the
date of the Closing to June 3, 1999;
WHEREAS, Seller and Buyer entered into that certain Second Amendment to
Purchase and Sale Agreement dated effective June 3, 1999 wherein Seller and
Buyer extended the Diligence Date and the date of the Closing to June 9, 1999.
WHEREAS, Seller and Buyer entered into that certain Third Amendment to
Purchase and Sale Agreement dated effective June 9, 1999 wherein Seller and
Buyer extended the Diligence Date and the date of the Closing to June 10, 1999.
WHEREAS, Seller and Buyer desire to amend the Agreement to extend further
the Diligence Date and the date of the Closing.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Seller and Buyer hereby agree as follows:
I. Seller and Buyer each confirms the truth and accuracy of the recitals, each
of which are made a part of this Amendment.
II. All initial capitalized terms not defined herein shall have the meaning
ascribed to such terms in the Agreement.
III. Section 5.3 of the Agreement is hereby modified as follows: The first
sentence of the first paragraph on page 9 of the Agreement is hereby deleted in
its entirety, and the following sentence is added to Section 5.3 in replacement
of that deleted sentence:
Buyer shall complete its due diligence including, but not limited to
the foregoing, no later than June 11, 1999 (the Diligence Date).
It is the intention of Seller and Buyer that by changing the Diligence
Date as provided in this paragraph 3, Seller and Buyer are also changing
all other deadlines contained in the Agreement which are based on or
otherwise tied to the Diligence Date including, but not limited to, the
Closing Date which shall occur on or before the Diligence Date, as hereby
amended. The term Diligence Date as that term is used in the Agreement
shall mean the Diligence Date as extended and redefined in this Amendment.
IV. Notwithstanding anything to the contrary contained herein, Buyer and Seller
acknowledged and agree that the obligations of Seller to consummate the
transaction contemplated in the Agreement remain as set forth in Section 6.6 of
the Agreement, including, but not limited, to Section 6.6(b).
<PAGE>
V. Except as modified hereby, the terms and conditions of the Agreement shall
continue in full force and effect. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one agreement. In order to expedite the execution of this Amendment,
a facsimile signature shall be binding and have the same effect as an original
signature.
[END OF PAGE 2]
<PAGE>
EXECUTED by Buyer this 10th day of June, 1999 to be effective as of June
10, 1999.
WEINGARTEN REALTY INVESTORS
a Texas real estate investment trust
By: /s/ M. Candace DuFour
---------------------
M. Candace DuFour
Vice President
BUYER
EXECUTED by Seller this 10th day of June, 1999 to be effective as of June
10, 1999.
AMARILLO BELL ASSOCIATES,
a Texas general partnership
By: Amarillo G.C. Associates, Ltd., a
Utah limited partnership, its
General Partner
By: The Boyer Company, L.C., a Utah
limited liability company, its
General Partner
By: /s/ H. Lewis Swain
-------------------
Name: H. Lewis Swain
Title: Vice President
By: PaineWebber Income Properties Five
Limited Partnership, a Delaware
limited partnership, its General
Partner
By:Fifth Income Properties Fund, Inc.,
a Delaware corporation, its General
Partner
By: /s/ Rock M. D'Errico
---------------------
Name: Rock M. D'Errico
Title: Vice President
SELLER
<PAGE>
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this Amendment) is
entered into between AMARILLO BELL ASSOCIATES, a Texas general partnership
(hereinafter called Seller), and WEINGARTEN REALTY INVESTORS, a Texas real
estate investment trust (hereinafter called Buyer), effective as of the date
hereinafter provided.
WHEREAS, Seller and Buyer entered into that certain Purchase and Sale
Agreement executed by Buyer and Seller effective as of April 9, 1999, although
not necessarily executed by the parties on that date (the Agreement);
WHEREAS, the Agreement was terminated by Buyer on May 24, 1999;
WHEREAS, Seller and Buyer entered into that certain Reinstatement and
First Amendment to Purchase and Sale Agreement dated effective as of May 24,
1999 (the Reinstatement) wherein, among other things, Seller and Buyer
reinstated the terms of the Agreement and extended the Diligence Date and the
date of the Closing to June 3, 1999;
WHEREAS, Seller and Buyer entered into that certain Second Amendment to
Purchase and Sale Agreement dated effective June 3, 1999 wherein Seller and
Buyer extended the Diligence Date and the date of the Closing to June 9, 1999.
WHEREAS, Seller and Buyer entered into that certain Third Amendment to
Purchase and Sale Agreement dated effective June 9, 1999 wherein Seller and
Buyer extended the Diligence Date and the date of the Closing to June 10, 1999.
WHEREAS, Seller and Buyer entered into that certain Fourth Amendment to
Purchase and Sale Agreement dated effective June 10, 1999 wherein Seller and
Buyer extended the Diligence Date and the date of the Closing to June 11, 1999.
WHEREAS, Seller and Buyer desire to amend the Agreement to extend further
the Diligence Date and the date of the Closing.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, Seller and Buyer hereby agree as follows:
I. Seller and Buyer each confirms the truth and accuracy of the recitals, each
of which are made a part of this Amendment.
II. All initial capitalized terms not defined herein shall have the meaning
ascribed to such terms in the Agreement.
III. Section 5.3 of the Agreement is hereby modified as follows: The first
sentence of the first paragraph on page 9 of the Agreement is hereby deleted in
its entirety, and the following sentence is added to Section 5.3 in replacement
of that deleted sentence:
Buyer shall complete its due diligence including, but not limited to
the foregoing, no later than June 14, 1999 (the Diligence Date).
It is the intention of Seller and Buyer that by changing the Diligence
Date as provided in this paragraph 3, Seller and Buyer are also changing
all other deadlines contained in the Agreement which are based on or
otherwise tied to the Diligence Date including, but not limited to, the
Closing Date which shall occur on or before the Diligence Date, as hereby
amended. The term Diligence Date as that term is used in the Agreement
shall mean the Diligence Date as extended and redefined in this Amendment.
IV. Notwithstanding anything to the contrary contained herein, Buyer and Seller
acknowledged and agree that the obligations of Seller to consummate the
transaction contemplated in the Agreement remain as set forth in Section 6.6 of
the Agreement, including, but not limited, to Section 6.6(b).
V. Except as modified hereby, the terms and conditions of the Agreement shall
continue in full force and effect. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one agreement. In order to expedite the execution of this Amendment,
a facsimile signature shall be binding and have the same effect as an original
signature.
[END OF PAGE 2]
<PAGE>
EXECUTED by Buyer this 11th day of June, 1999 to be effective as of June
11, 1999.
WEINGARTEN REALTY INVESTORS
a Texas real estate investment trust
By: /s/ M. Candace DuFour
---------------------
M. Candace DuFour
Vice President
BUYER
EXECUTED by Seller this 11th day of June, 1999 to be effective as of June
11, 1999.
AMARILLO BELL ASSOCIATES,
a Texas general partnership
By: /s/ Melissa Fang
-----------------
Melissa Fang, Esq.
Goodwin, Procter & Hoar, LLP, Attorney
for Seller in this matter
SELLER
<PAGE>
SPECIAL WARRANTY DEED
STATE OF TEXAS
County of Randall
KNOW ALL PERSONS BY THESE PRESENTS:
THAT AMARILLO BELL ASSOCIATES, a Texas general partnership
(Grantor), for and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration to it in hand paid by WRI/Bell Plaza, Inc., a
Texas corporation (Grantee), having a mailing address of 2600 Citadel Plaza
Drive, Houston, Texas 77008, the receipt and sufficiency of which consideration
are hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and by these presents
does hereby GRANT, SELL AND CONVEY, unto Grantee all of the real property
described in Exhibit A attached hereto and made a part hereof for all purposes,
together with the buildings, structures, improvements and fixtures (collectively
the Improvements) now located thereon and the rights appurtenant thereto,
including, to the extent owned or held by Seller, mineral rights, utility and
waste-water capacity rights, rights under reciprocal easements and restrictive
covenants, rights under any recorded or unrecorded instruments benefiting the
real property, strips, gores, and adjoining tracts owned by Grantor and
reversionary rights (collectively with the real property and the Improvements,
the Property).
This conveyance is made subject to (i) those matters shown in the public
records, including those exceptions and encumbrances (collectively, the
Permitted Exceptions) set forth in Exhibit B attached hereto and made a part
hereof for all purposes, but only to the extent that the same are valid and
existing and affect the Property and (ii) unrecorded written leases.
TO HAVE AND TO HOLD the Property, as aforesaid, unto Grantee, its
successors and assigns, forever; and Grantor does hereby bind itself and its
successors and assigns, to WARRANT AND FOREVER DEFEND, all singular, the
Property unto Grantee, its successors and assigns, against every person
whomsoever lawfully claiming, or to claim the same, or any part thereof, by,
through or under Grantor, but not otherwise; subject to the matters set forth in
subparagraphs (i) and (ii) above.
<PAGE>
GRANTEE, BY GRANTEES ACCEPTANCE OF THIS SPECIAL WARRANTY DEED ACKNOWLEDGES
THAT GRANTEE HAS INSPECTED THE PROPERTY AND IS SATISFIED AS TO THE CONDITION OF
SAME AND THAT GRANTEE ACCEPTS THE PROPERTY AS IS AND WHERE IS AND WITH ALL
FAULTS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, SPECIFICALLY, WITHOUT LIMITATION, ANY
WARRANTY AS TO HABITABILITY, SUITABILITY, MERCHANTABILITY, CONDITION OR FITNESS
FOR A PARTICULAR PURPOSE, SAVE AND EXCEPT THE SPECIAL WARRANTY OF TITLE
CONTAINED HEREIN.
WITNESS Grantors hand this 14th day of June, 1999.
GRANTOR:
AMARILLO BELL ASSOCIATES,
a Texas general partnership
By: AMARILLO G.C. ASSOCIATES, LTD.,
a Utah limited partnership, general partner
By: THE BOYER COMPANY, L.C.,
a Utah limited liability company,
Its General Partner
By: /s/ H. Lewis Swain
------------------
Name: H. Lewis Swain
Title: Vice President
By: PAINEWEBBER INCOME PROPERTIES FIVE LIMITED
PARTNERSHIP,
a Delaware limited partnership, its General
Partner
By: FIFTH INCOME PROPERTIES FUND, INC., a
Delaware corporation, its General Partner
By: /s/ Rock M. D'Errico
----------------------
Name: Rock M. D'Errico
Title: Vice President
GRANTEE:
WRI/BELL PLAZA, INC., a Texas corporation
By: /s/ M. Candace DuFour
----------------------
Name: M. Candace DuFour
Title: Vice President
<PAGE>
EXHIBIT A
Lot No. 4, Block No. 1, FOUNTAIN PARK UNIT NO. 13, an Addition to the City of
Amarillo, Randall County, Texas according to the recorded map or plat thereof,
of record in volume 637, Page 625, of the Deed Records of Randall County, Texas,
reference to which is here made for all purposes.
<PAGE>
EXHIBIT B
Permitted Encumbrances
1. Right of Way easement to Pioneer Natural Gas as recorded in Volume 641,
page 579, of the Deed Records of Randall County, Texas.
2. Underground utility easement to Southwestern Public Service Company as
recorded in Volume 660, page 426 of the Deed Records of Randall County,
Texas.
3. Underground utility easement to Southwestern Public Service Company as
recorded in Volume 682, page 639 of the Deed Records of Randall County,
Texas.
4. Underground utility easement to Southwestern Public Service Company as
recorded in Volume 711, page 207 of the Deed Records of Randall County,
Texas.
5. Underground utility easement to Southwestern Public Service Company as
recorded in Volume 840, page 104 of the Deed Records of Randall County,
Texas.
6. Right of Way easement to City of Amarillo as recorded in Volume 650, page
159, of the Deed Records of Randall County, Texas.
7. Right of Way easement to City of Amarillo as recorded in Volume 1114, page
1, of the Deed Records of Randall County, Texas.
8. Water Service Line Easement as recorded in Volume 791, Page 86, of the
Deed Records of Randall County, Texas.
9. Utility Easement of various widths around perimeter as shown on plat
recorded in Volume 637, Page 625, of the Deed Records of Randall County,
Texas.
10. Subject to the terms, conditions and stipulations of an Assignment,
Assumption and Consent Agreement and Amendment to Lease dated July 23,
1992, by and between Cinamerica Theatres, L.P., a Delaware limited
partnership (Assignor) and Cinemark USA, Inc., a Texas corporation
(Assignee), and Amarillo Bell Associates, a Texas general partnership, as
successor in interest to Amarillo G.C. Associates, a Utah Limited
partnership (Landlord) as recorded in Volume 1407, Page 333 of the Deed
Records of Randall County, Texas.
11. Subject to the terms, conditions and stipulations of a Memorandum of Lease
dated July 23, 1992, by and between Amarillo Bell Associates, a Texas
general partnership (successor in interest to Amarillo G.C. Associates)
and Cinemark USA, Inc., a Texas corporation, as recorded in Volume 1407,
Page 351 of the Deed Records of Randall County, Texas.
12. Subject to the terms, conditions and stipulations of a Subordination,
Non-Disturbance and Attornment Agreement dated May 23, 1995 and effective
on June 19, 1995, by and between Amresco Capital Corporation (lender) and
Amarillo Bell Associates (Landlord) and Cinemark USA, Inc. (Tenant), as
recorded in Volume 1692, Page 127 of the Deed Records of Randall County,
Texas.
13. Mortgage, Deed of Trust and Security Agreement dated June 15, 1995,
executed by Amarillo Bell Associates, a Texas general partnership, to Mark
L. Morganfield, Trustee, securing the payment of one note of even date
therewith payable to Amresco Capital Corporation, a Texas corporation, in
the original principal amount of $3,300,000.00, together with all
indebtedness of whatsoever nature, secured or to be secured by said Deed of
Trust, and being subject to the terms, conditions and stipulations
contained in said Deed of Trust recorded in Volume 1036, page 382 of the
Deed of Trust Records of Randall County, Texas. And being additionally
secured by Assignment of Leases and Rents dated June 15, 1995, by and
between Amarillo Bell Associates and Amresco Capital Corporation, as
recorded in Volume 1630, Page 403 of the Deed Records of Randall County,
Texas.
Said Deed of Trust transferred to MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as recorded in Volume 1631, Page 135, of the Deed Records of Randall
County, Texas, and transferred to STATE STREET BANK AND TRUST COMPANY, as
Trustee for J.P. Morgan Commercial Mortgage Finance Corp. Pass-Through
Certificates Series 1996-C2, as recorded in Volume 1759, Page 163, of the
Deed Records of Randall County, Texas.
14. Covenants, conditions and restrictions (provisions, if any, based on race,
color, religion, sex, handicap, familial status or national origin are
omitted) as recorded in Volume 778, page 377 of the Deed Records of
Randall County, Texas.
<PAGE>
BELL PLAZA SHOPPING CENTER
AMARILLO, TEXAS
BILL OF SALE
THIS BILL OF SALE (this Bill of Sale) is executed as of the 14th day of
June, 1999, by Amarillo Bell Associates (Seller), a Texas general partnership
having an address c/o Amarillo G.C. Associates, Ltd., 127 South 500 East, Suite
100, Salt Lake City, Utah 84102, in favor of WRI/Bell Plaza, Inc. (Purchaser), a
Texas corporation, having an office at 2600 Citadel Plaza Drive, Houston, Texas
77008.
1. Real Property. The Real Property shall mean the land located in the
County of Randall, State of Texas, commonly known as Bell Plaza Shopping Center
and located in Amarillo, Texas, being more particularly described on Exhibit A
attached hereto and made a part hereof, and the buildings, structures,
improvements and fixtures now located thereon (collectively, the Improvements)
and the rights appurtenant thereto.
2. Personal Property. The Personal Property shall mean those certain
articles of personal property and tangible property which are described in
Exhibit B attached to this Bill of Sale, and, to the extent owned by Seller, all
personal property of every kind or description now located in, on or affixed to
the Real Property or Improvements.
3. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser.
4. As Is. The Personal Property is sold, transferred and delivered by
Seller and hereby accepted by Purchaser in its current as is condition, without
any warranties, covenants or representations by Seller. Without limiting the
generality of the foregoing, the Personal Property is transferred, sold and
delivered without any express or implied warranty of merchantability or fitness.
5. Counterparts. This Bill of Sale may be executed in multiple
counterparts, any or all of which may contain the signatures of fewer than all
of the parties, but all of which shall constitute a single instrument.
<PAGE>
IN WITNESS WHEREOF, Seller has executed this Bill of Sale the day and year
first above written.
AMARILLO BELL ASSOCIATES, a Texas general
partnership
By: Amarillo G.C. Associates, Ltd., a Utah
limited Partnership, its general partner
By: THE BOYER COMPANY, L.C.,
a Utah limited liability company,
Its General Partner
By: /s/ H. Lewis Swain
------------------
Name: H. Lewis Swain
Title: Vice President
By: PAINEWEBBER INCOME PROPERTIES FIVE
LIMITED PARTNERSHIP,
a Delaware limited partnership, its
General Partner
By: FIFTH INCOME PROPERTIES FUND, INC.,
a Delaware corporation, its General
Partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
PURCHASER:
WRI/BELL PLAZA, INC., a Texas corporation
By: /s/ M. Candace DuFour
---------------------
Name: M. Candace DuFour
Title: Vice President
<PAGE>
BELL PLAZA SHOPPING CENTER
AMARILLO, TEXAS
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
Assignment) is entered into as of the 14th of June, 1999, between Amarillo Bell
Associates (Assignor), a Texas general partnership with an address c/o Amarillo
G.C. Associates, Ltd., 127 South 500 East, Suite 100, Salt Lake City, Utah
84102, and WRI/Bell Plaza, Inc. (Assignee), a Texas corporation, with an address
of 2600 Citadel Plaza Drive, Houston, Texas 77008.
1. Property. The Property means the real property located in the County of
Randall, State of Texas, commonly known as Bell Plaza Shopping Center and
located in Amarillo, Texas as more particularly described on Exhibit A attached
hereto and made a part hereof, together with the building, structures, fixtures
and other improvements (Improvements) located thereon.
2. Leases. The Leases means those leases, tenancies, rental agreements and
occupancy agreements affecting the Property which are described in Exhibit B
attached to this Assignment.
3. Security Deposits. Security Deposits means those security deposits held
by or for Assignor on account of tenants under the Leases as such deposits and
with respect to which Assignee received a credit at the closing of the
transaction with respect to which this Assignment has been executed and
delivered. The Security Deposits are set forth on attached Exhibit C.
4. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
grants, transfers and assigns to Assignee the entire interest of lessor or
landlord in and to the Leases and the Security Deposits.
5. Assumption. Assignee hereby assumes the covenants, agreements and
obligations of Assignor as landlord or lessor under the Leases (a) for any
matters addressed in the Tenant Estoppels or (b) which are applicable to the
period and required to be performed from and after the date hereof. Assignee
further assumes all liability of Assignor for the proper refund or return of the
Security Deposits, to the extent Assignee received a credit at the closing of
the transaction, if, when and as required by the Leases.
6. Attorneys Fees. If either Assignee or Assignor, or their respective
successors or assigns, file suit to enforce the obligations of the other party
under this Assignment, the prevailing party shall be entitled to recover the
reasonable fees and expenses of its attorneys.
7. Successors and Assigns. This Assignment shall be binding upon and inure
to the benefit of Assignor and Assignee and their respective successors and
assigns.
8. Counterparts. This Assignment may be executed in multiple counterparts,
any or all of which may contain the signatures of fewer than all of the parties,
but all of which shall constitute a single instrument.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment the day and year first above written.
ASSIGNOR:
AMARILLO BELL ASSOCIATES, a Texas general
partnership
By: Amarillo G.C. Associates, Ltd., a
Utah limited Partnership, its general
partner
By: /s/ H. Lewis Swain
------------------
Name: H. Lewis Swain
Title: Vice President
By: PAINEWEBBER INCOME PROPERTIES FIVE
LIMITED PARTNERSHIP, a Delaware
limited partnership, its General
Partner
By: FIFTH INCOME PROPERTIES FUND,
INC., a Delaware corporation,
its General Partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
ASSIGNEE:
WRI/BELL PLAZA, INC., a Texas corporation
By: /s/ M. Candace DuFour
---------------------
Name: M. Candace DuFour
Title: Vice President
<PAGE>
BELL PLAZA SHOPPING
AMARILLO, TEXAS
ASSIGNMENT AND ASSUMPTION
OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this Assignment) is entered into as
of the 14th day of June, 1999, between Amarillo Bell Associates, a Texas general
partnership, (Assignor), with an address c/o Amarillo G.C. Associates, Ltd., 127
South 500 East, Suite 100, Salt Lake City, Utah 84102, in favor of WRI/Bell
Plaza, Inc. (Assignee), a Texas corporation, having an office at 2600 Citadel
Plaza Drive, Houston, Texas 77008.
1. Property. The Property means the real property located in the County of
Randall, State of Texas, commonly known as Bell Plaza Shopping Center and
located in Amarillo, Texas, as more particularly described on Exhibit A attached
hereto and made a part hereof, together with the building, structures, fixtures,
maintenance, service, supply, equipment rental, management, operating and
leasing and other improvements (Improvements) located thereon.
2. Contracts. Contracts shall mean only the contracts relating to the
Property which are listed on Exhibit B attached to this Assignment.
3. Lender Escrows. Lender Escrows shall mean any escrows or reserves held
by or on behalf of State Street Bank and Trust Company as Trustee for JP Morgan
Commercial Mortgage Finance Corp. Mortgage Pass-Through Certificates Series
1996-C2 (successor in interest to AMERSCO Capital Corporation) (Lender) related
to (i) a certain Note in the original principal amount of $3,300,000.00 dated
June 15, 1995 from Assignor to Lender and (ii) all other documents executed in
connection with said Note. The Lender Escrows and the current balances held in
such Lender Escrows are set forth in attached Exhibit C.
4. Assignment. For good and valuable consideration received by Assignor
the receipt and sufficiency of which is hereby acknowledged, Assignor hereby
grants, transfers and assigns to Assignee the entire right, title and interest
of Assignor in and to the Contracts and the Lender Escrows.
5. Assumption. Assignee hereby assumes the covenants, agreements and
obligations of Assignor under the Contracts which are applicable to the period
and required to be performed from and after the date of this Assignment.
6. Attorneys Fees. If either Assignee or Assignor or their respective
successors or assigns, file suit to enforce the obligations of the other party
under this Assignment, the prevailing party shall be entitled to recover the
reasonable fees and expenses of its attorneys.
7. Successors and Assigns. This Assignment shall be binding upon and inure
to the benefit of Assignor and Assignee and their respective successors and
assigns.
8. Counterparts. This Assignment may be executed in multiple counterparts,
any or all of which may contain the signatures of fewer than all of the parties,
but all of which shall constitute a single instrument.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment the day and year first above written.
ASSIGNOR:
AMARILLO BELL ASSOCIATES, a Texas general
partnership
By: Amarillo G.C. Associates, Ltd., a Utah
limited Partnership, its general
partner
By: /s/ H. Lewis Swain
------------------
Name: H. Lewis Swain
Title: Vice President
By: PAINEWEBBER INCOME PROPERTIES FIVE
LIMITED PARTNERSHIP, a Delaware
limited partnership, its General
Partner
By: FIFTH INCOME PROPERTIES FUND,
INC., a Delaware corporation,
its General Partner
By: /s/ Rock M. D'Errico
---------------------
Name: Rock M. D'Errico
Title: Vice President
ASSIGNEE:
WRI/BELL PLAZA, INC., a Texas corporation
By: /s/ M. Candace DuFour
---------------------
Name: M. Candace DuFour
Title: Vice President
<PAGE>
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this Agreement) is given as of this 14th
day of June, 1999, by WRI/Bell Plaza, Inc., a Texas corporation (the Indemnitor)
and Weingarten Realty Investors, a Texas real estate investment trust
(Weingarten) for the benefit of Amarillo Bell Associates (Amarillo Bell),
PaineWebber Income Properties Five Limited Partnership (PWIP5) and Amarillo G.C.
Associates, Ltd. (Amarillo G.C.) (Amarillo Bell, PWIP5 and Amarillo G.C. are
known hereafter collectively as the Indemnified Party).
WHEREAS, Amarillo Bell, as Seller, and Weingarten, as Buyer, entered into
that certain Purchase and Sale Agreement (the Purchase Agreement), dated as of
April 9, 1999, concerning the sale and acquisition of certain property commonly
referred to as Bell Plaza Shopping Center, located in Amarillo, Randall County,
Texas and more particularly described on Exhibit A attached hereto and
incorporated herein by reference (the Property); and
WHEREAS, by Letter Notice dated as of June 2, 1999, Weingarten notified
Amarillo Bell that Weingartens nominee under the Purchase Agreement would be
Indemnitor; and
WHEREAS, Weingarten owns one hundred percent (100%) of the stock of
Indemnitor (the Indemnitors Stock); and
WHEREAS, the Property is being sold to Indemnitor subject to that certain
loan in the original principal amount of $3,300,000.00 from AMRESCO Capital
Corporation (succeeded in interest by State Street Bank and Trust Company as
Trustee for JP Morgan Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates, Series 1996-C2) (Lender) to Amarillo Bell, as Borrower (the
Existing Loan);
WHEREAS, on the Closing Date (as defined in the Purchase Agreement) the
Existing Loan is being assigned to and assumed by Indemnitor on the terms and
provisions set forth in that certain Loan Assumption Agreement (the Assumption
Agreement), dated of even date herewith, among Indemnitor, Amarillo Bell and
Lender;
WHEREAS, the Assumption Agreement provides that Lender releases the
Indemnified Party from all obligations and liabilities under the Note, the Loan
Documents and the Prior Guaranty (as such terms are defined in the Assumption
Agreement) which accrue from and after the Effective Date (as such term is
defined in the Assumption Agreement);
WHEREAS, pursuant to Section 6.6 of the Purchase Agreement, the obligation
of Amarillo Bell to close on the Closing Date is conditioned and contingent upon
Amarillo Bell and Lender agreeing upon the form and substance of the assumption
documents, and further, pursuant to Section 3.1, a portion of the Purchase Price
is required to be paid by Buyers assumption and Lenders release of all of
Sellers obligations under the Loan Documents (as such term in this instance is
defined under the Purchase Agreement); and
WHEREAS, in order to effect the full release of Seller with respect to
obligations and liabilities arising and accruing under the Note, the Loan
Documents and the Prior Guaranty prior to or simultaneously with the Effective
Date, Indemnitor has agreed to deliver this Indemnity to the Indemnified Party.
NOW THEREFORE, as a material inducement to Indemnified Party to consummate
the sale of the Property to the Indemnitor, the undersigned agree as follows:
I. Indemnification. From and after the date hereof, Indemnitor agrees to
indemnify, defend, and hold harmless Indemnified Party from and against all
liabilities, claims, actions, losses, damages, costs and expenses, including,
without limitation, reasonable attorneys fees, and expenses (including
reasonable costs and fees associated with any appeals) (collectively, Losses)
which Losses are threatened, incurred or suffered by Indemnified Party, or any
Indemnified Party, based upon, arising out of, in connection with or by reason
of any liability or obligation relating to the Note, the Loan Documents or the
Prior Guaranty, arising or accruing with respect to any period prior to,
simultaneously with or after the Effective Date; provided, however, that
Indemnitor shall not indemnify, defend or hold harmless Indemnified Party,
collectively or individually, for Losses threatened, incurred or suffered by
Indemnified Party, collectively or individually, which arise as a direct result
of (i) any material misstatement of fact made by Indemnified Party, collectively
or individually, in the Note, the Loan Documents or the Prior Guaranty; (ii) any
fraud committed by Indemnified Party, collectively or individually occurring on
or before Effective Date; (iii) any misapplication or conversion of funds under
the Note, the Loan Documents or the Prior Guaranty occurring on or before the
Effective Date; or (iv) any gross negligence or willful misconduct of
Indemnified Party, collectively or individually occurring on or before the
Effective Date.
II. Covenant of Indemnitor. Indemnitor agrees not to incur any debt secured by
the Property or Indemnitors Stock other than the Existing Loan, and further
agrees not to incur any other debt except for trade payables or capitalized
expenditures up to $1,200,000.00 in the ordinary course of business.
III. Subordination and Covenant of Weingarten. Weingarten agrees to subordinate
(a) any loans made by Weingarten or any of its affiliates to the Indemnitor or
(b) other funds or securities of any kind contributed to the Indemnitor or the
Property to any obligations to Indemnified Party arising under this Agreement.
Weingarten further agrees not to sell transfer, pledge, assign, convey,
encumber, hypothecate Indemnitors Stock.
IV. Weingarten Obligation. In the event, but only in the event, (i) Indemnitor
breaches the covenant in Paragraph 2, above or (ii) Weingarten breaches the
covenant in Paragraph 3, above (herein such breaches as described in Paragraphs
4(i) and 4(ii) shall be collectively called Triggering Events or individually
called a Triggering Event), Weingarten agrees to assume at the time such
Triggering Event occurs, without any further acts, Indemnitors obligations under
this Agreement. Except for the covenants and agreements contained in Paragraph 3
above, Weingarten shall have no responsibility or liability under this
Agreement, of any nature or to any extent, to Indemnified Party, collectively or
individually, unless and until the occurrence of a Triggering Event.
V. Binding. This Agreement shall be binding and inures to the benefit of the
parties hereto and their respective successors and assigns.
VI. Counterparts. This Agreement may be executed in more than one counterpart,
all of which shall constitute one document.
DOCUMENT CONTINUES ON NEXT PAGE
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the day and year first above written.
INDEMNITOR: WRI/BELL PLAZA, INC.
By: /s/ M. Candace DuFour
---------------------
Name: M. Candace DuFour
Title: Vice President
WEINGARTEN REALTY INVESTORS
By: /s/ M. Candace DuFour
---------------------
Name: M. Candace DuFour
Title: Vice President
<PAGE>
Cross Reference: Volume 1036,
page 382
Randall County, Texas Records
LOAN ASSUMPTION AGREEMENT
THIS LOAN ASSUMPTION AGREEMENT (this Agreement ) is made and entered into
as of June 14, 1999 (the Effective Date ) by and between Amarillo Bell
Associates, a Texas general partnership ( Prior Owner ); WRI/Bell Plaza, Inc., a
Texas corporation ( Borrower ); and State Street Bank and Trust Company as
Trustee for JP Morgan Commercial Mortgage Finance Corp. Mortgage Pass-Through
Certificates, Series 1996-C2 ( Lender ).
RECITALS
A. Prior Owner was the owner of certain property located at 5807 West 45th
Avenue, Amarillo, Randall County, Texas, described on Exhibit A attached hereto
and all other property, real and personal, encumbered by the Mortgage (as
defined below) (all such property being, the Property ).
B. Prior Owner was the maker of that certain Note dated June 15, 1995 in
the original principal amount of Three Million Three Hundred Thousand Dollars
($3,300,000.00) and payable to the order of AMRESCO Capital Corporation ( Former
Lender ) (the Note ) (the loan evidenced by the Note is herein referred to as
the Loan ).
C. The Note is secured by:
(1) that certain Mortgage, Deed of Trust and Security Agreement (the
Mortgage ) dated June 15, 1995 executed by Prior Owner in favor of Former
Lender conveying and encumbering the Property and recorded at Volume 1036,
page 382 of the Official Records of Randall County, Texas (the Public
Records );
(2) that Assignment of Leases and Rents (the Assignment of Leases )
dated June 15, 1995, executed by Prior Owner to Former Lender, which is
recorded under Clerk File No. 504947 at Volume 1630, page 403, of the
Public Records;
(3) that Tenant Improvement and Leasing Commissions Agreement (the
TI Agreement ) dated June 15, 1995, executed by Prior Owner to Former
Lender;
(4) that Environmental Liabilities Agreement (the Environmental
Agreement ) dated June 15, 1995 and delivered by Prior Owner for the
benefit of Lender; and
(5) that letter agreement (the Letter Agreement ) dated as of June
15, 1995 from Prior Owner to Former Lender, consented to by Prior
Guarantor (as defined below), and agreed to by Former Lender (which Letter
Agreement addresses circumstances in which Former Lender agreed to give
written consent to a partial release of specified portions of the
Property).
(The Note, the Mortgage, the Assignment of Leases, the TI Agreement, the
Environmental Agreement, and the Letter Agreement are hereinafter referred to
collectively as the Loan Documents or singularly as a Loan Document. )
<PAGE>
D. In addition to the Loan Documents, Prior Owner delivered, or caused to
be delivered, to Former Lender that certain Guaranty (the Prior Guaranty ) dated
June 15, 1995, executed by The Boyer Company, L.C. and Paine Webber Income
Properties Five Limited Partnership (together, Prior Guarantor ), for the
benefit of Former Lender.
E. Borrower is as of the Effective Date executing and delivering, or is
causing to be delivered, to Lender that certain Guaranty (the Guaranty )
executed and delivered by Weingarten Realty Investors, a real estate investment
trust formed under the laws of the State of Texas ( New Guarantor ), for the
benefit of Lender.
F. Lender is the successor in interest to Former Lender in and to the Loan
Documents.
G. The Property is being conveyed by Prior Owner to Borrower as of the
date of this Agreement, and as part of the consideration for such conveyance,
Borrower will assume all the obligations under the Loan Documents and comply
with all covenants and obligations contained in the Loan Documents.
H. Lender will consent to the conveyance of the Property by Prior Owner to
Borrower without declaring the indebtedness evidenced by the Note to be
immediately due and payable provided Borrower assumes payment of the Note and
performance of all other duties and obligations of Prior Owner as described in
the Loan Documents and as hereinafter provided.
I. In order to comply with the provisions of the Mortgage, Borrower and
Prior Owner have requested Lender s consent to the transaction described in
these recitations.
J. Lender desires to give such consent in accordance with the terms of
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the sum of Ten and No/100 Dollars
($10.00) cash in hand paid by the parties hereto each to the other and in
consideration of the premises herein contained and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Loan Information. Lender represents and warrants that the principal
balance outstanding under the Note as of the Effective Date is $3,112,584.57,
interest has been paid through May 31, 1999, and that to Lender s actual
knowledge, there is no Event of Default, or event which with the passage of time
or the giving of notice, or both, would constitute an Event of Default, under
the Loan Documents. Lender reserves the right to declare any existing default
which subsequently comes to the attention of Lender. All escrow deposits held by
Lender in connection with the Loan Documents shall from and after the Effective
Date be for the account of Borrower. Lender hereby confirms to and for the
benefit of Borrower that to its actual knowledge, as of the Effective Date, the
reserves being held by or on behalf of Lender pursuant to the Loan Documents are
as follows:
(i) Tax reserve: $44,952.75
(ii) Insurance reserve: $14,764.48
(iii) Replacement Escrow Fund: $191,437.82
(including deposit for tenant improvements and leasing commissions)
2. Organization and Authority of Borrower. Borrower represents and
warrants to Lender that Borrower is a Texas corporation, duly formed and validly
existing under the laws of the state of its organization, and no proceeding is
pending for the dissolution or annulment of Borrower, and all license and
franchise taxes due and payable by Borrower have been paid in full. Borrower has
the full power and authority to enter into and perform this Agreement and the
execution, delivery and performance of this Agreement by Borrower (a) has been
duly and validly authorized by all necessary action on the part of Borrower, (b)
does not conflict with or result in a violation of Borrower s organizational
documents or any judgment, order or decree of any court or arbiter in any
proceeding to which Borrower is a party, and (c) does not conflict with or
constitute a material breach of, or constitute a material default under, any
contract, agreement or other instrument by which Borrower is bound or to which
it is a party.
3. Consent of Lender. Lender hereby consents to the sale of the Property
by Prior Owner to Borrower and agrees that such sale shall not constitute a
default under the Loan Documents. Notwithstanding the foregoing, this consent to
the transfer of the Property shall not be deemed to be a waiver of the right of
the Lender under the Mortgage and otherwise in the Loan Documents to prohibit
any future transfers of the Property or any interest therein or of the right of
the Lender to deny consent to any such transaction in the future in accordance
with the provisions of the Mortgage. From and after the Effective Date,
references in the Loan Documents to Maker, Mortgagor, Debtor, Borrower,
Assignor, or other similar references that prior to the Effective Date referred
to Prior Owner shall refer to Borrower (with corresponding changes based on the
provisions of this Agreement), and references in the Loan Documents to Guarantor
or other similar references that prior to the Effective Date referred to Prior
Guarantor shall refer to New Guarantor.
4. Assumption and Ratification. Borrower hereby assumes and agrees to
comply with all covenants and obligations contained in the Loan Documents, and
from and after the Effective Date shall be bound by all the terms thereof.
Without limiting the foregoing, Borrower hereby assumes and agrees to pay in
full as and when due all payments, obligations and other indebtedness evidenced
by the Note. As assumed hereby, the Loan Documents shall remain in full force
and effect and all obligations, covenants, conditions, agreements, warranties,
representations and other terms and provisions thereof, as amended hereby
(including the amendment to references as provided in Section 3 above), are
hereby ratified, confirmed, reaffirmed and republished, and are hereby
incorporated by reference; provided, however, that (i) Borrower does not make
any representation or warranty pertaining to Prior Owner, and (ii) all
representations and warranties contained in the Environmental Agreement are
qualified and limited to the best of Borrower s knowledge (without inquiry or
investigation other than the Phase I Environmental Site, dated May 3, 1995,
prepared by W.E.B. Environmental, Inc. [project no. 92395W][as amended by letter
dated June 9, 1995] and the Phase I Environmental Site Assessment, Limited
Asbestos Survey and Limited Phase II Assessment, dated May 19, 1999, prepared by
Buchanan Environmental Associates, a true, correct, and complete copy of which
has been provided by Borrower to Lender). Lender hereby forever releases and
discharges Prior Owner and Prior Guarantor from any and all liability,
obligation or duty under the Loan Documents and the Prior Guaranty arising from
and after the Effective Date; provided, however, that Prior Owner and Prior
Guarantor are not released or discharged from any liability, obligation or duty
under the Loan Documents or the Prior Guaranty arising prior to or
simultaneously with the assumption of the Loan by Borrower contained herein.
Notwithstanding the foregoing, Lender releases Prior Owner from scheduled
payments arising under the Note and due after the Effective Date.
5. Representations and Warranties. Borrower does hereby make the following
representations and warranties to Lender as of the Effective Date in order to
induce Lender to enter into this Agreement, it being hereby acknowledged by
Borrower that Lender is relying upon such representations and warranties as a
material inducement to Lender s execution hereof:
(a) Borrower represents and warrants that as of the Effective Date,
to Borrower s actual knowledge, there is no Event of Default or event which with
the passage of time or the giving of notice, or both, would constitute an Event
of Default under the Loan Documents.
(b) Borrower has thoroughly read and reviewed the terms and
provisions of this Agreement and is familiar with same, and Borrower has entered
into this Agreement voluntarily, without duress or undue influence of any kind,
and with the advice and representation of legal counsel, if any, selected by
Borrower.
6. Release of Claims. Except for (i) Lender s representations specifically
made in this Agreement, and (ii) Lender s gross negligence or wilfull
misconduct, Borrower, on behalf of itself and its successors and assigns
(collectively and individually, Borrower Parties ), hereby fully, finally and
completely RELEASE AND FOREVER DISCHARGE Lender, and its respective successors,
assigns, affiliates, subsidiaries, parents, officers, shareholders, directors,
employees, attorneys, agents and properties, past, present and future, and their
respective heirs, successors and assigns (collectively and individually, Lender
Parties ), of and from any and all claims, controversies, disputes, liabilities,
obligations, demands, damages, debts, liens, actions and causes of action of any
and every nature whatsoever, known or unknown, whether at law, by statute or in
equity, in contract or in tort, under state or federal jurisdiction, and whether
or not the economic effects of such alleged matters arise or are discovered in
the future, which Borrower Parties have as of the Effective Date or may claim to
have against Lender Parties arising out of or with respect to any and all
transactions relating to the Loan or the Loan Documents occurring on or before
the Effective Date, including any loss, cost or damage of any kind or character
arising out of or in any way connected with or in any way resulting from the
acts, actions or omissions of Lender Parties occurring on or before the
Effective Date. The foregoing release is intended to be, and is, a full,
complete and general release in favor of Lender Parties with respect to all
claims, demands, actions, causes of action and other matters described therein,
including specifically, without limitation, any claims, demands or causes of
action based upon allegations of breach of fiduciary duty, breach of any alleged
duty of fair dealing in good faith, economic coercion, usury, or any other
theory, cause of action, occurrence, matter or thing which might result in
liability upon Lender Parties arising or occurring on or before the Effective
Date. Borrower Parties understand and agree that the foregoing general release
is in consideration for the agreements of Lender contained herein and that they
will receive no further consideration for such release. Borrower Parties
represent and warrant to Lender that they have not heretofore assigned or
transferred to any person or entity any matter released hereunder and Borrower
Parties agree to indemnify, protect and hold the Lender Parties harmless from
and against any and all claims based on or arising out of any such assignment or
transfer.
7. Default. Any default by Borrower in the performance of its obligations
herein contained or any material inaccuracy in the representations and
warranties made by Borrower herein shall constitute a default under the Loan
Documents and shall entitle Lender to exercise all of its rights and remedies
set forth in the Loan Documents.
8. Lift of Bankruptcy Stay. Notwithstanding any provision in the Loan
Documents to the contrary, in the event Borrower shall make application for or
seek relief or protection under any of the sections or chapters of the United
States Bankruptcy Code (the Code ), or in the event that any involuntary
petition is filed against Borrower under any section of the Code, Borrower will
not oppose Lender s application for immediate relief from any automatic stay
imposed by Sec. 362 of the Code, or otherwise, on or against the exercise of the
rights and remedies otherwise available to Lender pursuant to the Loan Documents
and as otherwise provided by law.
9. Fees. Borrower and Lender have agreed that, simultaneously with the
execution hereof, all fees, costs, and charges arising out of the consummation
of this Agreement, including without limitation all reasonable attorneys fees,
title company fees, title insurance premiums, recording costs, and other closing
costs in connection with this Agreement are being paid by Borrower and/or Prior
Owner and that Lender shall have no obligation whatsoever for payment thereof.
10. No Offsets or Defenses. Borrower hereby acknowledges, confirms and
warrants to Lender that as of the Effective Date, Borrower neither has nor
claims any offset, defense, claim, right of set-off or counterclaim against
Lender under, arising out of or in connection with this agreement, the Note, the
Mortgage or any other Loan Document or with respect to any of the indebtedness
evidenced or secured thereby or with respect to the Property. In addition,
Borrower covenants and agrees with Lender that if any offset, defense, claim,
right of set-off or counterclaim exists, Borrower hereby irrevocably and
expressly waives the right to assert such matter.
11. Confirmation. Except as specifically set forth herein, all other terms
and conditions of the Loan Documents shall remain unmodified and in full force
and effect, the same being confirmed and republished hereby; and except as
otherwise specifically set forth herein, the undersigned Borrower hereby
assumes, affirms, reaffirms and republishes all of the warranties, covenants and
agreements as set forth in the Loan Documents, as amended hereby.
12. Usury Savings Clause. Notwithstanding anything to the contrary
contained elsewhere in this Agreement, Borrower and Lender hereby agree that all
agreements between them under this Agreement and with respect to the Loan,
whether now existing or hereafter arising and whether written or oral, are
expressly limited so that in no contingency or event whatsoever shall the amount
paid, or agreed to be paid, to Lender for the use, forbearance, or detention of
the money loaned to Borrower, or for the performance or payment of any covenant
or obligation contained herein or therein, exceed the maximum rate of interest
under applicable law (the Maximum Rate ). If from any circumstance whatsoever,
fulfillment of any provisions of this Agreement at the time performance of such
provisions shall be due shall involve transcending the limit of validity
prescribed by law, then, automatically, the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from any such circumstance Lender
should ever receive anything of value deemed interest by applicable law which
would exceed the Maximum Rate, such excessive interest shall be applied to the
reduction of the principal amount owing with respect to the Loan or on account
of the other indebtedness secured by the Loan Documents and not to the payment
of interest, or if such excessive interest exceeds the unpaid principal balance
of the Loan and such other indebtedness, such excess shall be refunded to
Borrower. All sums paid or agreed to be paid to Lender for the use, forbearance
or detention of the Loan and other indebtedness of Borrower to Lender shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full term of such indebtedness until payment in full so
that the actual rate of interest on account of all such indebtedness is uniform
throughout the actual term of the Loan or does not exceed the Maximum Rate
throughout the entire term of the Loan, as appropriate. The terms and provisions
of this Section 12 shall control every other provision of this Agreement and all
other agreements between Borrower and Lender.
13. Modifications, Waivers. No waiver, modification, amendment, discharge,
or change of any of the Loan Documents shall be valid unless the same is in
writing and signed by the party against which the enforcement of such
modification, waiver, amendment, discharge, or change is sought.
14. No Novation. THE PARTIES DO NOT INTEND THIS AGREEMENT NOR THE
TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING BY THE BORROWER UNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS. FURTHER, THE PARTIES DO NOT INTEND THIS AGREEMENT NOR THE
TRANSACTIONS CONTEMPLATED HEREBY TO AFFECT THE PRIORITY OF ANY OF THE LENDER S
LIENS IN ANY OF THE COLLATERAL SECURING THE EXISTING NOTE IN ANY WAY, INCLUDING,
BUT NOT LIMITED TO, THE LIENS, SECURITY INTERESTS AND ENCUMBRANCES CREATED BY
THE MORTGAGE.
15. Recitals True. Borrower and Lender each hereby approve the recitations
set forth in the preamble of this Agreement and agree that, to their respective
current knowledge, said recitations are true and correct in all respects.
16. Notices. Lender and Borrower agree that any notice provisions
contained in the Loan Documents are hereby modified as contained in this Section
16. Any notices required or permitted to be given under this Agreement or under
the Loan Documents must be in writing and shall be sent to the address set forth
below (or any other address which is provided by one party to the other by
notice pursuant to the Mortgage) and must be given in the manner required by the
Mortgage.
If to Lender:
c/o AMRESCO Services, L.P.
235 Peachtree Street, N.E., Suite 900
Atlanta, Georgia 30303
Attention: Servicing Department for Loan No. 739002500
If to Borrower:
2600 Citadel Plaza Drive, Suite 300
Houston, Texas 77008
Attention: General Counsel
Each party to this Agreement may designate a change of address by notice
given as required in the Mortgage.
17. Severability. If all or any portion of any provision of this Agreement
shall be held to be invalid, illegal or unenforceable in any respect, then such
invalidity, illegality or unenforceability shall not effect any other provision
hereof or thereof, and such provision shall be limited and construed in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
thereof were not contained herein or therein.
18. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document. All such counterparts shall be construed together and shall constitute
one instrument, but in making proof hereof it shall only be necessary to produce
one such counterpart.
19. Governing Law. The terms and conditions of this Agreement shall be
governed by the applicable laws of the state in which the Property is located.
20. Interpretation. Within this Agreement, words of any gender shall be
held and construed to include any other gender, and words in the singular number
shall be held and construed to include the plural, unless the context otherwise
requires. The section headings used herein are intended for reference purposes
only and shall not be considered in the interpretation of the terms and
conditions hereof. The parties acknowledge that the parties and their counsel
have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
21. Amendment. The terms and conditions hereof may not be modified,
altered or otherwise amended except by an instrument in writing executed by
Borrower, Prior Owner, and Lender.
22. Entire Agreement. This Agreement contains the entire agreement between
the parties hereto with respect to the modification of the Loan and fully
supersedes all prior agreements and understanding between the parties pertaining
to such subject matter.
23. Successors and Assigns. The terms and conditions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto,
their successors and permitted assigns.
24. Trial By Jury Waiver. Borrower hereby irrevocably and unconditionally
waives, and Lender by its acceptance of this AGREEMENT irrevocably and
unconditionally waives, any and all right to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to the
Loan, THIS AGREEMENT or the LOAN Documents.
[SIGNATURES BEGIN ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have all executed this Agreement
under seal as of the day and year first hereinabove written.
BORROWER:
WRI/Bell Plaza, Inc.
By: /s/ M. Candace DuFour
---------------------
Name: M. Candace DuFour
Title: Vice President
PRIOR OWNER:
Amarillo Bell Associates, a Texas
general partnership
By: Amarillo G.C. Associates, Ltd., a Utah
limited partnership, General Partner
By: The Boyer Company, L.C., a Utah limited
liability company, its General Partner
By: /s/ H. Lewis Swain
------------------
Name: H. Lewis Swain
Title: Vice President
By: Paine Webber Income Properties Five
Limited Partnership, a Delaware limited
partnership, General Partner
By: Fifth Income Properties Fund, Inc.,
a Delaware corporation, its General
Partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
[NOTARIZATION ON NEXT PAGE]
