<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- ----- EXCHANGE ACT OF 1934
For the Fiscal Year Ended DECEMBER 31, 1995
OR
TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
- ----- EXCHANGE ACT OF 1934
For the transition period from to
------------- -------------
COMMISSION FILE NO.
0-14105
---------------
MURRAY INCOME PROPERTIES I, LTD.
(Exact Name of Registrant as Specified in its Charter)
TEXAS 75-1946214
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5550 LBJ FREEWAY, SUITE 675, DALLAS, TEXAS 75240
(Address of principal executive offices) (Zip Code)
(214) 991-9090
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III or this Form 10-K or any amendment to this
Form 10-K. [ ]
<PAGE> 2
TABLE OF CONTENTS
Page
PART I
Item 1. Business 1
Item 2. Properties 2
Item 3. Legal Proceedings 3
Item 4. Submission of Matters to a Vote of Security Holders 3
PART II
Item 5. Market for the Partnership's Limited Partnership
Interests and Related Security Holder Matters 4
Item 6. Selected Financial Data 4
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 5
Item 8. Financial Statements and Supplementary Data 9
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure 20
PART III
Item 10. Directors and Executive Officers of the Partnership 21
Item 11. Executive Compensation 22
Item 12. Security Ownership of Certain Beneficial Owners
and Management 22
Item 13. Certain Relationships and Related Transactions 23
PART IV
Item 14. Exhibits, Financial Statement Schedules, and
Reports on Form 8-K 24
Signatures 31
Index to Exhibits 32
<PAGE> 3
PART I
ITEM 1. BUSINESS.
General. Murray Income Properties I, Ltd. (the "Partnership") was formed
March 12, 1984 under the Texas Uniform Limited Partnership Act to acquire
recently constructed income-producing shopping centers located in growth
markets. As of November, 1989, the Partnership became governed by the Texas
Revised Limited Partnership Act. The General Partners of the Partnership are
Murray Realty Investors VIII, Inc., a Texas corporation, and Crozier Partners
VIII, Ltd., a Texas limited partnership.
The Partnership acquired its first shopping center, Mountain View Plaza, in
1985, and its second shopping center, Castle Oaks Village, in 1986. The
Partnership also in 1986 acquired an 85% interest in Tower Place Joint Venture,
which owns Tower Place Festival Shopping Center ("Tower Place"). The remaining
15% interest in the joint venture is owned by Murray Income Properties II, Ltd.,
a publicly-registered real estate limited partnership, the general partners of
which are affiliates of the General Partners. All acquisitions were paid for in
cash. For a more detailed description of the joint venture interest and the
properties acquired by the Partnership, see "Item 2. Properties".
The Partnership is in competition for tenants for its properties with other
real estate limited partnerships as well as with individuals, corporations, real
estate investment trusts, pension funds and other entities engaged in the
ownership and operation of retail real estate. When evaluating a particular
location to lease, a tenant may consider many factors, including, but not
limited to, space availability, rental rates, lease terms, access, parking,
quality of construction and quality of management. While the General Partners
believe that the Partnership's properties are generally competitive with other
properties with regard to these factors, there can be no assurance that, in the
view of a prospective tenant, other retail properties will not be more
attractive.
Mountain View Plaza Shopping Center. At December 31, 1995, Mountain View
Plaza was 96% leased. One tenant, Reay's Ranch Markets ("Reay's") leases
approximately 33.3% of the total rentable space of the property. The Reay's
lease expires on August 31, 2005 and the tenant has an option to renew for two
successive five year periods. Childtime Childcare leases 10.3% of the total
rentable space. The Childtime Childcare lease expires January 31, 1997, and the
tenant has two five year renewal options. At December 31, 1994, Mountain View
Plaza was 98% leased.
Mountain View Plaza is subject to competition from similar types of
properties in the vicinity in which it is located. The following information on
competitive properties in the vicinity of Mountain View Plaza has been obtained
from sources believed reliable by the Partnership. The accuracy of this
information was not independently verified by the Partnership.
<TABLE>
<CAPTION>
Rentable Percent Leased at
Property Square Feet December 31, 1995
-------- ----------- -----------------
<S> <C> <C>
1 89,200 100%
2 63,600 97%
3 94,100 91%
</TABLE>
Castle Oaks Shopping Center. At December 31, 1995, Castle Oaks Shopping
Center was 74% leased. One tenant, Razmiko's Ltd., leases 13.5% of the total
rentable space of the property. This lease expires on September 30, 2000. At
December 31, 1994, Castle Oaks was 79% leased.
Castle Oaks Shopping Center is subject to competition from similar types of
properties in the vicinity in which it is located. The following information on
such competitors has been obtained from
1
<PAGE> 4
sources believed reliable by the Partnership. The accuracy of this information
was not independently verified by the Partnership.
<TABLE>
<CAPTION>
Rentable Percent Leased at
Property Square Feet December 31, 1995
-------- ----------- -----------------
<S> <C> <C>
1 100,000 79%
2 48,500 97%
3 42,900 95%
</TABLE>
Tower Place Festival Shopping Center. At December 31, 1995, Tower Place was
99% leased. One tenant, General Cinema, leases 27.8% of the total rentable space
of the property and another, J&K Cafeterias, leases 10.6% of the total rentable
space. The General Cinema lease expires on September 30, 2006, with the tenant
having the option to extend the term of the lease for two successive terms of
five years each. The J&K Cafeteria lease expires on April 30, 2004, and the
tenant has the option to renew for two periods of five years each. At December
31, 1994, Tower Place was 97% leased.
Tower Place is subject to competition from similar types of properties in
the vicinity in which it is located. The following information on such
competitors has been obtained from sources believed reliable by the Partnership.
The accuracy of this information was not independently verified by the
Partnership.
<TABLE>
<CAPTION>
Rentable Percent Leased at
Property Square Feet December 31, 1995
-------- ----------- -----------------
<S> <C> <C>
1 248,700 89%
2 40,800 91%
3 65,800 89%
</TABLE>
The Partnership has no employees. However, the Partnership is required to
reimburse 47% of the costs of four employees to Murray Income Properties II,
Ltd., an affiliate of the Partnership.
For a definition of the terms used herein and elsewhere in this Form 10-K,
see "Glossary" incorporated by reference herein as contained in the Prospectus
dated May 31, 1984 filed as a part of Amendment No. 2 to Registrant's Form S-11
Registration Statement (File No. 2-90016) attached hereto as Exhibit 99a.
ITEM 2. PROPERTIES.
The Partnership owns the properties described below:
Location Description of Property
-------- -----------------------
Scottsdale, Arizona Mountain View Plaza Shopping Center
A 58,154 square foot shopping center situated
on 7.6 acres. At December 31, 1995, Mountain
View Plaza was 96% leased at an average annual
lease rate of $11.44. Lease rates range from
$6.23 to $20.88 per square foot.
San Antonio, Texas Castle Oaks Village Shopping Center
A 33,435 square foot shopping center situated
on 3.013 acres. At December 31, 1995, Castle
Oaks was 74% leased at an average annual lease
rate of $10.05. Lease rates range from $8.40
to $11.00 per square foot.
2
<PAGE> 5
The Partnership also owns an 85% interest in Tower Place Joint Venture
which owns the property described below:
Pineville (Charlotte), Tower Place Festival Shopping Center
North Carolina A 114,586 square foot shopping center situated
on 10.777 acres. At December 31, 1995, Tower
Place was 99% leased at an average annual
lease rate of $12.59. Lease rental rates range
from $10.00 to $16.00 per square foot.
ITEM 3. LEGAL PROCEEDINGS.
There are no material legal proceedings to which the General Partners or
the Partnership is a party or to which any of the Partnership's properties are
subject.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matters were submitted to a vote of security holders during the fourth
quarter of the year covered by this report through the solicitation of proxies
or otherwise.
3
<PAGE> 6
PART II
ITEM 5. MARKET FOR THE PARTNERSHIP'S LIMITED PARTNERSHIP INTERESTS AND RELATED
SECURITY HOLDER MATTERS.
A public market for Interests does not exist and is not likely to develop.
Consequently, a Limited Partner may not be able to liquidate its investment in
the event of emergency or for any other reason, and Interests may not be readily
accepted as collateral for a loan. Further, the transfer of Interests is subject
to certain limitations. For a description of such limitations, see Article XIII
of the Agreement of Limited Partnership as contained in the Prospectus dated May
31, 1984 filed as a part of Amendment No. 2 to Registrant's Form S-11
Registration Statement (File No. 2-90016) attached hereto as Exhibit 28b.
At December 31, 1995, there were 2,540 record holders, owning an aggregate
of 28,227 Interests.
The Partnership made its initial Cash Distribution from Operations
following the quarter ended March 31, 1985, the first complete quarter
subsequent to the acceptance of subscriptions for the minimum number of
Interests offered, and has continued to make distributions after each subsequent
quarter. See "Item 6. Selected Financial Data" for the cash distributions per
Interest during the period from January 1, 1991 to December 31, 1995. The
Partnership intends to continue making Cash Distributions from Operations on a
quarterly basis.
The Partnership Agreement provides that under certain circumstances, the
General Partners may, in their sole discretion and upon the request of a Limited
Partner, repurchase the Interests held by such Limited Partner. Murray Realty
Investors VIII, Inc. is obligated to set aside 25% of its share of Cash
Distributions from Operations and Crozier Partners VIII, Ltd. is obligated to
set aside 25% of its 5% share of Cash Distributions from Operations that is
subordinated to the prior receipt by the Limited Partners of a non-cumulative 7%
annual return from Cash Distributions from Operations for this purpose. Any such
repurchase shall be subject to the availability of funds set aside and the other
terms and conditions set forth in the Partnership Agreement. For information on
such terms and conditions, see Section 10.15 of the Agreement of Limited
Partnership as contained in amendment number nine to the Agreement of Limited
Partnership contained in the Proxy Statement dated October 11, 1989 attached
hereto as Exhibit 28c. As of December 31, 1995, no funds were available for this
purpose.
ITEM 6. SELECTED FINANCIAL DATA.
<TABLE>
Year Ended December 31,
-------------------------------------------------------------------
1995 1994 1993 1992 1991
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Income $ 2,846,710 $ 2,804,229 $ 2,685,556 $ 3,029,614 $ 2,570,710
Earnings Before
Minority Interest 918,032 926,811 826,360 1,125,058 568,595
Minority Interest
in Joint Venture's
Earnings 115,220 109,520 118,743 95,661 74,235
Net Earnings 802,812 817,291 707,617 1,029,397 494,360
Earnings per Limited
Partnership Interest* 27.87 28.38 24.57 35.74 17.16
Distributions per
Limited Partnership
Interest * 50.00 50.00 42.50 42.50 42.50
Total Assets at
Year End $20,598,892 $21,234,326 $21,923,351 $22,486,566 $22,722,032
</TABLE>
4
<PAGE> 7
* Based on limited partnership interests outstanding at year-end and net
earnings or distributions allocated to the Limited Partners.
The above selected financial data should be read in conjunction with the
financial statements and related notes appearing in Item 8 of this report.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Liquidity and Capital Resources
As of December 31, 1995, the Partnership had cash and cash equivalents of
$1,325,197. Such amounts represent cash generated from operations and working
capital reserves.
An increase in investment properties, buildings and improvements of
$107,651 from December 31, 1994 to December 31, 1995 is primarily due to the
painting of the Mountain View Plaza Shopping Center and tenant improvements at
all of the Partnership's properties.
Rental income from leases with escalating rental rates is accrued using the
straight line method over the related lease terms. At December 31, 1995 and
December 31, 1994, there were $488,013 and $463,485, respectively, of accounts
receivable related to such accruals. Accounts receivable also consist of tenant
receivables, receivables for rent collected (but not yet remitted to the
Partnership by the property management companies), and interest receivable on
short-term investments. An increase from December 31, 1994 to December 31, 1995
in accounts receivable (before bad debts) of $39,704 is primarily due to an
increase in receivables for rent collected (but not yet remitted to the
Partnership by the property management companies) at Tower Place Festival
Shopping Center and Mountain View Plaza Shopping Center, and receivables related
to the accruals described above at Tower Place Festival Shopping Center and
Mountain View Plaza Shopping Center. As of December 31, 1995 and December 31,
1994, the Partnership had allowances of $21,758 and $21,446, respectively, for
uncollectible accounts receivable.
During the year ended December 31, 1995, the Partnership made Cash
Distributions from Operations totaling $1,440,153. Subsequent to December 31,
1995 the Partnership made a Cash Distribution from Operations of $360,038
relating to the three months ended December 31, 1995. The distributed funds were
derived from the net cash flow generated from operations of the Partnership's
properties and from interest earned, net of administrative expenses, on funds
invested in short-term money market instruments.
Future liquidity is currently expected to result from cash generated from
the operations of the Partnership's properties (which could be affected
negatively in the event of weakened occupancies, and/or rental rates), interest
earned on funds invested in short-term money market instruments and ultimately
through the sale of the Partnership's properties.
Market conditions continued their improvement during 1995, as evidenced by
increases in rental income and average occupancy of two of the Partnership's
three properties shown in the section entitled Results of Operations below. The
third property, Castle Oaks Village, experienced significant decreases in
average occupancy and rental income due to the loss of several tenants in late
1994 and the first half of 1995. Charlotte continued its trend of the
construction of large anchored shopping centers. These properties, commonly
referred to as "power centers", may not compete for the same size and type of
tenants as Tower Place Festival, but they do provide competition for retail
sales customers. Phoenix, on the other hand, is currently experiencing a
dramatic increase in the development of neighborhood shopping centers which are
anchored by grocery stores. These
5
<PAGE> 8
properties may compete for the same type retailers as Mountain View Plaza,
depending on the proximity and desirability of the property. San Antonio has not
seen a great deal of retail construction, due to the fact that it is still
suffering from the overbuilding which occurred in the 1980's.
Results of Operations
Rental income increased $36,228 (1%) for the year ended December 31, 1995
as compared to the year ended December 31, 1994. Rental income increased
$199,251 (8%) for the year ended December 31, 1994 as compared to the year ended
December 31, 1993. The following information details the rental income
generated, bad debt expense incurred, and average occupancy for the years ended
December 31, 1995, December 31, 1994 and December 31, 1993, respectively, for
each of the Partnership's properties:
<TABLE>
<CAPTION>
For the years ended
December 31,
----------------------------------
1995 1994 1993
---------- ---------- ----------
<S> <C> <C> <C>
Mountain View Plaza Shopping Center
Rental income $ 870,777 $ 833,550 $ 634,596
Bad debt expense 542 764 -0-
Average occupancy 97% 95% 72%
Castle Oaks Shopping Center
Rental income $ 283,022 $ 355,181 $ 354,252
Bad debt expense (recovery) 10,533 (1,046) 14,297
Average occupancy 69% 87% 85%
Tower Place Festival Shopping Center
Rental income $1,617,902 $1,546,742 $1,547,374
Bad debt expense (recovery) (5,521) 8,029 1,628
Average occupancy 96% 92% 95%
</TABLE>
Rental income at Mountain View Plaza increased $37,227 (4%) for the year
ended December 31, 1995, as compared to the year ended December 31, 1994 due to
higher occupancy and increased reimbursements for common area maintenance costs
and real estate taxes.
Rental income at Mountain View Plaza increased $198,954 (31%) for the year
ended December 31, 1994, as compared to the year ended December 31, 1993 due to
higher occupancy and increased reimbursements for common area maintenance costs,
real estate taxes and insurance costs.
Mountain View Plaza in Scottsdale, Arizona averaged 97% occupancy during
the year ended December 31, 1995, a two percent increase over 1994. During the
year, two tenants totalling 2,480 square feet renewed their leases for five
years and one tenant occupying 880 square feet renewed its lease for three
years. One tenant who occupies 1,325 square feet extended the term of its lease
for three years after its lease expires in 1997. Two tenants totalling 3,459
square feet vacated their spaces upon expiration of their leases. Two new leases
totalling 2,092 square feet were signed during 1995. As of December 31, 1995,
Mountain View Plaza was 96% occupied.
Rental income at Castle Oaks decreased $72,159 (20%) for the year ended
December 31, 1995 as compared to the year ended December 31, 1994 due to a
decrease in occupancy and lower tenant reimbursements for common area
maintenance costs, real estate taxes and insurance. Rental income at Castle
Oaks increased slightly for the year ended December 31, 1994 as compared to the
6
<PAGE> 9
year ended December 31, 1993 with increases in rental income being offset by
lower reimbursements for real estate taxes.
Castle Oaks Village Shopping Center in Castle Hills (San Antonio), Texas
averaged 69% occupancy for the year ended December 31, 1995, an 18% decrease
from the previous year. One tenant who occupied 2,060 square feet vacated its
space upon expiration of its lease. One tenant who occupied 4,500 square feet
vacated its space prior to the expiration of its lease. The General Partners
have instituted legal action in an attempt to collect amounts unpaid under this
lease. This space was subsequently leased and this tenant took occupancy in
October. One tenant who occupied 1,900 square feet moved to another space within
the shopping center which contains 2,100 square feet. In December a lease for
2,142 square feet was signed with a tenant who will occupy the space during the
second quarter of 1996. As of December 31, 1995, Castle Oaks Village was 74%
occupied.
Rental income at Tower Place increased $71,160 (5%) for the year ended
December 31, 1995 as compared to the year ended December 31, 1994 with increases
in rental income and increases in reimbursements for real estate taxes and
insurance costs. Rental income at Tower Place decreased slightly for the year
ended December 31, 1994 as compared to the year ended December 31, 1993 with
decreases in rental income being offset by increased reimbursements for real
estate taxes and insurance costs.
Occupancy at Tower Place Festival in Pineville (Charlotte), North Carolina
averaged 96% in 1995, a four percent increase over the previous year. Four
tenants totalling 5,461 square feet renewed their leases for three years. One
tenant occupying 3,220 square feet renewed its lease for five years and one
tenant who occupies 2,100 square feet renewed its lease for one year. Two
tenants who occupied 2,654 square feet vacated their space upon expiration of
their leases. Eight leases totalling 13,268 square feet were signed with the
tenants taking occupancy in 1995. Two leases totalling 4,980 square feet were
executed and these tenants will take occupancy during the first quarter of 1996.
One tenant who occupied 2,670 square feet moved to a space containing 1,260
square feet. As of December 31, 1995, Tower Place Festival was 98% occupied.
The increase in interest income of the Partnership of $25,083 (50%) during
the year ended December 31, 1995 as compared to the year ended December 31, 1994
is due to a higher average yield on invested funds during 1995 as compared to
1994. The increase in interest income of the Partnership of $8,592 (21%) during
the year ended December 31, 1994 as compared to the year ended December 31, 1993
is due to a higher average yield on invested funds during 1994 as compared to
1993.
Depreciation is provided over the estimated useful lives of the respective
assets using the straight line method. The estimated useful lives of the
buildings and improvements range from three to twenty-five years.
Property operating expenses consist primarily of real estate taxes,
property management fees, insurance costs, utility costs, repair and maintenance
costs, leasing and promotion costs, and amortization of deferred leasing costs.
Property operating expenses increased $65,699 (9%) for the year ended December
31, 1995 as compared to the previous year with increases in utilities,
landscaping costs, legal fees and real estate taxes being offset by decreases in
repair and maintenance costs. Mountain View Plaza's total operating expenses
increased with higher real estate taxes and landscaping costs being offset by
lower repair and maintenance costs. Castle Oaks' total operating expenses
increased with higher utilities, landscaping costs and legal fees being offset
by lower repair and maintenance costs and property management fees. Tower
Place's total operating expenses increased with higher utilities, repair and
maintenance costs, security costs and leasing and promotion costs being offset
by lower legal fees, insurance costs and real estate taxes.
7
<PAGE> 10
Operating expenses decreased slightly for the year ended December 31, 1994
as compared to the previous year with increases in utilities and insurance being
offset by decreases in repair and maintenance costs and leasing and promotion
expenses. Mountain View Plaza's total operating expenses increased primarily
because of increases in repairs and maintenance costs, property management fees,
and insurance. Castle Oaks' total operating expenses increased primarily because
of increases in repair and maintenance costs, insurance and utility expenses.
Tower Place's total operating expenses decreased primarily because of reductions
in repair and maintenance costs, leasing and promotion expenses and property
management fees.
General and administrative expenses incurred are related to legal and
accounting expenses, rent, investor services costs, salaries and benefits and
various other costs required for the administration of the Partnership,
including reimbursements of shared direct operating costs to Murray Income
Properties II, Ltd. General and administrative expenses decreased $7,300 (3%)
for the year ended December 31, 1995 as compared to the year ended December 31,
1994 primarily because of lower amortization of organization costs. General and
administrative expenses were relatively unchanged for the year ended December
31, 1994 as compared to the year ended December 31, 1993. Decreases in legal and
accounting fees, investor services expenses and office supplies offset increases
in salaries and benefits.
Bad debt expenses decreased $2,193 (28%) for the year ended December 31,
1995 as compared to the same period in 1994 with an increase at Castle Oaks
being offset by recoveries at Tower Place. Bad debt expenses decreased $8,178
(51%) for the year ended December 31, 1994 as compared to the same period in
1993 with increases at Mountain View Plaza and Tower Place being offset by
recoveries at Castle Oaks. The reduction is primarily due to intensive efforts
by Partnership management and the property managers to recognize and resolve
potential tenant problems as rapidly as possible, thereby reducing the buildup
in outstanding rent receivables.
The effect of inflation on results of operations for the years ended
December 31, 1995, 1994, and 1993 was not significant.
In March 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of," (SFAS 121) which
establishes the method of accounting for rental property when circumstances
indicate that the carrying amount of an asset may not be recoverable. Management
of the Partnership does not expect the implementation of SFAS 121 to have a
material effect on the financial condition or results of operations of the
Partnership. SFAS 121 is required to be implemented in 1996.
8
<PAGE> 11
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The following financial statements are filed as a part of this report:
Page
Number
------
Independent Auditors' Report 10
Consolidated Balance Sheets - December 31, 1995 and 1994 11
Consolidated Statements of Earnings - Years ended 12
December 31, 1995, 1994, and 1993
Consolidated Statements of Changes in Partners' Equity - 13
Years ended December 31, 1995, 1994, and 1993
Consolidated Statements of Cash Flows - Years ended 14
December 31, 1995, 1994, and 1993
Notes to Consolidated Financial Statements 15 - 19
9
<PAGE> 12
INDEPENDENT AUDITORS' REPORT
The Partners
Murray Income Properties I, Ltd.:
We have audited the accompanying consolidated balance sheets of Murray Income
Properties I, Ltd. (a limited partnership) and consolidated joint venture as of
December 31, 1995 and 1994, and the related consolidated statements of earnings,
changes in partners' equity and cash flows for each of the years in the
three-year period ended December 31, 1995. These consolidated financial
statements are the responsibility of the Partnership's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Murray Income
Properties I, Ltd. and consolidated joint venture as of December 31, 1995 and
1994, and the results of their operations and their cash flows for each of the
years in the three-year period ended December 31, 1995, in conformity with
generally accepted accounting principles.
KPMG Peat Marwick LLP
Dallas, Texas
February 27, 1996
10
<PAGE> 13
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
1995 1994
------ ------
<S> <C> <C>
ASSETS
Investment properties, at cost (note 3):
Land $ 6,232,801 $ 6,232,801
Buildings and improvements 20,168,412 20,060,761
------------ ------------
26,401,213 26,293,562
Less accumulated depreciation 8,079,281 7,225,381
------------ ------------
Net investment properties 18,321,932 19,068,181
Cash and cash equivalents 1,325,197 1,255,015
Accounts and notes receivable,
net of allowance of $21,758 and $21,446,
in 1995 and 1994, respectively (note 1) 689,231 655,081
Other assets, at cost, net of accumulated
amortization of $370,252 and $306,266 in
1995 and 1994, respectively 262,532 256,049
------------ ------------
$ 20,598,892 $ 21,234,326
============ ============
LIABILITIES AND PARTNERS' EQUITY
Accounts payable $ 26,615 $ 20,860
Accrued property taxes 192,903 184,447
Security deposits 208,589 153,563
------------ ------------
Total liabilities 428,107 358,870
------------ ------------
Minority interest in joint venture (note 3) 1,535,208 1,602,538
------------ ------------
Partners' equity:
General Partners:
Capital contributions 1,000 1,000
Cumulative net earnings 176,703 160,647
Cumulative cash distributions (304,547) (275,744)
------------ ------------
(126,844) (114,097)
------------ ------------
Limited Partners (28,227 Interests):
Capital contributions, net of offering costs 24,570,092 24,570,092
Cumulative net earnings 9,115,216 8,328,460
Cumulative cash distributions (14,922,887) (13,511,537)
------------ ------------
18,762,421 19,387,015
------------ ------------
Total partners' equity 18,635,577 19,272,918
------------ ------------
$ 20,598,892 $ 21,234,326
============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
11
<PAGE> 14
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
CONSOLIDATED STATEMENTS OF EARNINGS
<TABLE>
<CAPTION>
Years Ended
December 31
--------------------------------------
1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Income:
Rental (notes 3 and 7) $2,771,701 $2,735,473 $2,536,222
Interest 75,009 49,926 41,334
Termination fee income (note 4) -0- 18,830 108,000
---------- ---------- ----------
2,846,710 2,804,229 2,685,556
---------- ---------- ----------
Expenses:
Depreciation 853,900 858,846 830,501
Property operating 800,624 734,925 737,194
General and administrative 268,600 275,900 275,576
Bad debts, net 5,554 7,747 15,925
---------- ---------- ----------
1,928,678 1,877,418 1,859,196
---------- ---------- ----------
Earnings before minority
interest 918,032 926,811 826,360
Minority interest in joint venture's
earnings (note 3) 115,220 109,520 118,743
---------- ---------- -----------
Net earnings $ 802,812 $ 817,291 $ 707,617
========== ========== ===========
Earnings per limited partnership
interest $ 27.87 $ 28.38 $ 24.57
========== ========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
12
<PAGE> 15
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
CONSOLIDATED STATEMENTS OF CHANGES IN PARTNERS' EQUITY
YEARS ENDED DECEMBER 31, 1995, 1994, AND 1993
<TABLE>
<CAPTION>
General Limited
Partners Partners Total
---------- ---------- -------
<S> <C> <C> <C>
Year ended December 31, 1993:
Balance at December 31, 1992 $ (91,309) $20,503,584 $20,412,275
Net earnings 14,152 693,465 707,617
Cash distributions ($42.50 per limited
partnership interest) (24,483) (1,199,628) (1,224,111)
--------- ----------- -----------
Balance at December 31, 1993 $(101,640) $19,997,421 $19,895,781
--------- ----------- -----------
Year ended December 31, 1994:
Net earnings 16,346 800,945 817,291
Cash distributions ($50.00 per limited
partnership interest) (28,803) (1,411,351) (1,440,154)
--------- ----------- -----------
Balance at December 31, 1994 $(114,097) $19,387,015 $19,272,918
--------- ----------- -----------
Year ended December 31, 1995:
Net earnings 16,056 786,756 802,812
Cash distributions ($50.00 per limited
partnership interest) (28,803) (1,411,350) (1,440,153)
--------- ----------- -----------
Balance at December 31, 1995 $(126,844) $18,762,421 $18,635,577
========= =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
13
<PAGE> 16
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Years Ended
December 31
---------------------------------------
1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 802,812 $ 817,291 $ 707,617
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Bad debts, net 5,554 7,747 15,925
Depreciation 853,900 858,846 830,501
Amortization of other assets 63,986 73,031 71,931
Minority interest in joint venture's earnings 115,220 109,520 118,743
Change in assets and liabilities:
Accounts and notes receivable (39,704) (107,442) 515,849
Other assets (70,469) (105,802) (101,611)
Accounts payable 5,755 (26,678) 24,005
Accrued property taxes and security deposits 63,482 25,596 (26,719)
----------- ----------- -----------
Net cash provided by operating activities 1,800,536 1,652,109 2,156,241
----------- ----------- -----------
Cash flows from investing activities -
Additions to investment properties (107,651) (146,885) (371,104)
----------- ----------- -----------
Cash flows from financing activities:
Distributions to minority interest in
joint venture (182,550) (174,600) (162,750)
Cash distributions (1,440,153) (1,440,154) (1,224,111)
----------- ----------- -----------
Net cash used in financing activities (1,622,703) (1,614,754) (1,368,861)
----------- ----------- -----------
Net increase (decrease) in cash and cash equivalents 70,182 (109,530) 398,276
Cash and cash equivalents at beginning of year 1,255,015 1,364,545 966,269
----------- ----------- -----------
Cash and cash equivalents at end of year $ 1,325,197 $ 1,255,015 $ 1,364,545
=========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
14
<PAGE> 17
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
THREE YEARS ENDED DECEMBER 31, 1995
1. ORGANIZATION AND BASIS OF ACCOUNTING
The Partnership was formed March 12, 1984 by filing a Certificate and
Agreement of Limited Partnership with the Secretary of State of the State of
Texas. The Partnership Agreement authorized the issuance of up to 30,000 limited
partnership interests at a price of $1,000 each, of which 28,227 limited
partnership interests were issued. Proceeds from the sale of limited partnership
interests, net of related selling commissions, dealer-manager fees and other
offering costs, are recorded as contributed capital.
The consolidated financial statements include the accounts of the Partnership
and Tower Place Joint Venture (85% owned by the Partnership). All significant
intercompany balances and transactions have been eliminated in consolidation.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of income and expenses during the reporting period. Actual
results could differ from those estimates.
Rental income is recognized as earned under the leases. Accordingly, the
Partnership accrues rental income for the full period of occupancy using the
straight line method over the related terms. At December 31, 1995 and 1994,
there were $488,013 and $463,485, respectively, of accounts receivable related
to such accruals.
Other assets consist primarily of deferred leasing costs which are amortized
using the straight line method over the lives of the related leases.
Depreciation is provided over the estimated useful lives of the respective
assets using the straight line method. The estimated useful lives of the
buildings and improvements range from three to twenty-five years.
In March 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of," (SFAS 121) which
establishes the method of accounting for rental property when circumstances
indicate that the carrying amount of an asset may not be recoverable. The
Partnership periodically reevaluates the propriety of the carrying amounts of
investment properties to determine whether current events and circumstances
warrant an adjustment to such carrying amounts. Such evaluations are performed
utilizing annual appraisals performed by independent appraisers as well as
internally-developed estimates of expected undiscounted future cash flows. In
the event the carrying value of an individual property exceeds expected future
undiscounted cash flows, the property is written down to the most recently
appraised value. Since inception of the Partnership, none of the Partnership's
properties have required write downs.
No provision for income taxes has been made as the liabilities for such taxes
are those of the individual Partners rather than the Partnership. The
Partnership files its tax return on the accrual basis used for Federal income
tax purposes.
15 (Continued)
<PAGE> 18
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Earnings and cash distributions per limited partnership interest are based
upon the limited partnership interests outstanding at year-end and the net
earnings and cash distributions allocated to the Limited Partners in accordance
with the Partnership Agreement.
For purposes of reporting cash flows, the Partnership considers all
certificates of deposit and highly liquid debt instruments with original
maturities of three months or less to be cash equivalents.
The following information relates to estimated fair values of the
Partnership's financial instruments as of December 31, 1995 and 1994. For cash
and cash equivalents, accounts and notes receivable, accounts payable, accrued
property taxes payable, and security deposits, the carrying amounts approximate
fair value because of the short maturity of these instruments.
2. PARTNERSHIP AGREEMENT
Pursuant to the terms of the Partnership Agreement, net profits or losses of
the Partnership and cash distributions are generally allocated 98% to the
Limited Partners and 2% to the General Partners. Cash Distributions from the
sale or refinancing of a property are allocated as follows:
(a) First, all Cash Distributions from Sales or Refinancings shall be
allocated 99% to the Limited Partners and 1% to the Non-corporate
General Partner until the Limited Partners have been returned their
original invested Capital from Cash Distributions from Sales or
Refinancings, plus their Preferred Return from Cash Distributions from
Operations or Cash Distributions from Sales or Refinancings, or both.
(b) Next, all Cash Distributions from Sales or Refinancings shall be
allocated 1% to the Non-corporate General Partner and 99% to the Limited
Partners and the General Partners. Such 99% will be allocated (i) first
to the Corporate General Partner in an amount equal to any unpaid Cash
Distributions from Operations subordinated to the Limited Partners' 7%
non-cumulative annual return and (ii) thereafter, 80% to the Limited
Partners and 20% to the General Partners.
Cash Distributions from Sales or Refinancings (other than the 1% of Cash
Distributions from Sales or Refinancings payable to the Non-corporate
General Partner) payable to the General Partners shall be allocated 62
1/2% to the Non-corporate General Partner and 37 1/2% to the Corporate
General Partner.
3. INVESTMENT PROPERTIES
The Partnership owns and operates Mountain View Plaza, a shopping center
located in Scottsdale, Arizona, and Castle Oaks Village, a shopping center
located in Castle Hills (San Antonio), Texas. In addition, the Partnership owns
an 85% interest in Tower Place Joint Venture, a joint venture which owns Tower
Place Festival Shopping Center located in Pineville (Charlotte), North Carolina.
The remaining interest in the joint venture is owned by Murray Income Properties
II, Ltd. ("MIP II"), an affiliated real estate limited partnership. The Tower
Place Joint Venture Agreement provides that the Partnership will share profits,
losses, and cash distributions according to the Partnership's 85% ownership
interest in the joint venture.
16 (Continued)
<PAGE> 19
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Operating leases with tenants range in terms from two to 20 years. Fixed
minimum future rentals under existing leases at December 31, 1995 are as
follows:
<TABLE>
<S> <C>
1996 $ 2,150,629
1997 1,916,655
1998 1,562,551
1999 1,340,081
2000 1,128,978
Thereafter 4,732,071
-----------
$12,830,965
===========
</TABLE>
Rental income includes $511,614, $512,883, and $454,194 in 1995, 1994, and
1993, respectively, related to reimbursements from tenants for common area
maintenance costs, real estate taxes and insurance costs.
4. TERMINATION FEE INCOME
During 1994 and 1993, two tenants at Tower Place Joint Venture paid
termination fees as consideration for the Joint Venture releasing the tenants
from their future lease obligations. The termination fees of $18,830 and
$108,000 have been recognized as income in 1994 and 1993, respectively. During
1992, a tenant at one of the Partnership's properties agreed to pay the
Partnership a termination fee as consideration for the Partnership releasing the
tenant from its future lease obligations. The termination fee of $404,117 was
recognized as income in 1992 and received in 1993.
5. TRANSACTIONS WITH AFFILIATES
During 1993, the Partnership and MIP II paid $17,968 for office rent to
Shearson-Murray Real Estate Fund II, Ltd., an affiliated partnership. No such
amounts were paid in 1995 or 1994.
17 (Continued)
<PAGE> 20
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
6. RECONCILIATION OF CONSOLIDATED FINANCIAL STATEMENT NET EARNINGS AND
PARTNERS' EQUITY TO FEDERAL INCOME TAX BASIS NET EARNINGS AND PARTNERS' EQUITY
Reconciliation of consolidated financial statement net earnings to Federal
income tax basis net earnings is as follows:
<TABLE>
<CAPTION>
Years Ended
December 31
---------------------------------------
1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Net earnings - financial statement basis $ 802,812 $ 817,291 $ 707,617
----------- ----------- -----------
Financial statement basis depreciation/amortization
over (under) tax basis depreciation/amortization (12,924) 5,971 801
Financial statement basis rental income
(over) under tax basis rental income (15,833) (38,229) 18,474
Tax basis operating expenses over financial statement
basis operating expenses (34,725) -0- -0-
Financial statement basis joint venture earnings
under (over) tax basis joint venture earnings 24,027 (22,973) (27,815)
----------- ----------- -----------
Sub-total (39,455) (55,231) ( 8,540)
----------- ----------- -----------
Net earnings - Federal income tax basis $ 763,357 $ 762,060 $ 699,077
=========== =========== ===========
</TABLE>
Reconciliation of consolidated financial statement partners' equity to
Federal income tax basis partners' equity is as follows:
<TABLE>
<CAPTION>
December 31
---------------------------------------
1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Total partners' equity - financial statement basis $18,635,577 $19,272,918 $19,895,781
Current year financial statement net earnings
over tax basis net earnings (39,455) (55,231) ( 8,540)
Cumulative prior years financial statement net
earnings over tax basis net earnings (1,153,755) (1,098,524) (1,089,984)
----------- ----------- -----------
Total partners' equity - Federal income tax basis $17,442,367 $18,119,163 $18,797,257
=========== =========== ===========
</TABLE>
18 (Continued)
<PAGE> 21
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Because many types of transactions are susceptible to varying interpretations
under Federal and state income tax laws and regulations, the amounts reported
above may be subject to change at a later date upon final determination by the
taxing authorities.
7. BUSINESS AND CREDIT CONCENTRATION
As previously noted the Partnership's properties are located in Scottsdale,
Arizona, San Antonio, Texas and Charlotte, North Carolina.
The Partnership had no outstanding receivable balances at December 31, 1995
or 1994, which, individually, exceeded 5% of the Partnership's total assets.
Rental income from a major customer was approximately $448,000 for the years
ended 1995, 1994, and 1993, respectively.
19
<PAGE> 22
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not applicable.
20
<PAGE> 23
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE PARTNERSHIP.
Murray Realty Investors VIII, Inc., a Texas corporation, and Crozier Partners
VIII, Ltd., a Texas limited partnership, are the General Partners of the
Partnership. The Limited Partners voting a majority of the Interests may,
without the consent of the General Partners, remove a General Partner and elect
a successor General Partner.
The Partnership Agreement provides that the Partnership will have an
Investment Committee consisting initially of three members, appointed by Murray
Realty Investors VIII, Inc. (the "Corporate General Partner"). A person
appointed to the Investment Committee may be removed by the Corporate General
Partner, but the Corporate General Partner must name a replacement. The
acquisition, sale, financing or refinancing of a Partnership property must be
approved by a majority of the members of the Investment Committee. The members
of the Investment Committee currently are Messrs. Jack E. Crozier, Mitchell L.
Armstrong and W. Brent Buck. Murray Realty Investors VIII, Inc. is owned 60% by
Mr. Armstrong and 40% by Mr. Buck. The following is a brief description of Jack
E. Crozier, a general partner of Crozier Partners VIII, Ltd., a General Partner,
and the directors and executive officers of the Corporate General Partner:
Crozier Partners VIII, Ltd, General Partner
Jack E. Crozier, 67, General Partner. From 1954 through July 1990, Mr.
Crozier was affiliated with Murray Financial Corporation and various of its
affiliates. From 1977 through 1988, he was President of Murray Financial
Corporation, and from 1982 until June 1990, he also served as President of
Murray Savings Association, a principal affiliate of Murray Financial
Corporation. He served as President or Director of various other subsidiaries of
Murray Financial Corporation which were engaged in real estate finance,
development and management. He also served as the general partner in a number of
publicly registered limited partnerships, and a number of non-registered limited
partnerships, all of which had real estate as their principal assets. Since June
1990, he has remained as a partner or limited partner in several real estate
oriented limited partnerships. He is a consultant to several companies.
Murray Realty Investors VIII, Inc., Corporate General Partner
The directors and executive officers of Murray Realty Investors VIII, Inc.,
are:
Mitchell L. Armstrong, 45, President and Director. Mr. Armstrong became
President of Murray Realty Investors VIII, Inc. on November 15, 1989. From
September 1984 to that date, he was Senior Vice President - Product Development
of Murray Realty Investors, Inc., and Murray Property Investors and Vice
President - Tax for Murray Properties Company. From November 1988 to November
15, 1989, he also served as Secretary to these companies. From August 1983 to
September 1984, he was Executive Vice President of Dover Realty Investors. From
September 1980 to August 1983, he was with Murray Properties Company, in charge
of tax planning and reporting. From July 1972 to August 1980, he was with the
international accounting firm of Deloitte Haskins & Sells (now Deloitte &
Touche). Mr. Armstrong is a Certified Public Accountant and a Certified
Financial Planner and holds a Bachelor of Business Administration degree with
high honors in Accounting from Texas Tech University. He is a member of the
American Institute of Certified Public Accountants and a member of the Institute
of Certified Financial Planners.
W. Brent Buck, 40, Executive Vice President and Director. Mr. Buck became
Executive Vice President of Murray Realty Investors VIII, Inc., on November 15,
1989. From September 1981 to November 15, 1989, Mr. Buck served in various
capacities for Murray Properties Company and
21
<PAGE> 24
certain subsidiaries. His primary responsibilities included property
acquisitions and asset management. He was responsible for initially identifying
and negotiating the purchase of all properties in the Partnership, except for
Mountain View Plaza Shopping Center. Since their acquisitions to the present
time, he has continued to oversee the management of all properties of the
Partnership. Mr. Buck holds a Master of Business Administration degree in
Finance and a Bachelor of Public Administration degree in Urban Administration
from the University of Mississippi. He also holds a Texas real estate salesman
license and is a member of the International Council of Shopping Centers.
ITEM 11. EXECUTIVE COMPENSATION.
Murray Income Properties I, Ltd. does not have any employees. However,
pursuant to an amendment to the Partnership Agreement effective November 15,
1989, it reimburses Murray Income Properties II, Ltd. for forty-seven percent
(47%) of executive compensation incurred in the management of that partnership
and Murray Income Properties I, Ltd. Murray Income Properties II, Ltd. is a real
estate limited partnership the general partners of which are affiliates of the
General Partners. The following table presents Murray Income Properties I,
Ltd.'s share of executive compensation paid by Murray Income Properties II, Ltd.
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
- --------------------------------------------------------------------------------
Annual Compensation
-----------------------------------
All Other
Name and Principal Position Year Salary Compensation
--------------------------- ---- ------ ------------
<S> <C> <C> <C>
Mitchell L. Armstrong, 1995 $54,864 $291**
President* 1994 53,422 291**
1993 52,017 291**
W. Brent Buck, 1995 $40,856 $157**
Executive Vice President* 1994 39,782 157**
1993 38,736 157**
</TABLE>
* Offices held in Murray Realty Investors VIII, Inc., the Corporate General
Partner.
** The amounts reflected under the heading "All Other Compensation" represents
the partnership's share of the full premium cost of term insurance that will
benefit the executive.
The Partnership has not paid and does not propose to pay any bonuses or
deferred compensation, compensation pursuant to retirement or other plans, or
other compensation to the officers, directors or partners of the General
Partners other than described in the above table. In addition, there are no
restricted stock awards, options or stock appreciation rights, or any other long
term incentive payouts.
During the operational and liquidation stages of this Partnership, the
General Partners and their affiliates receive various fees and distributions.
For information on these types of remuneration, reference is made to the section
entitled "Management Compensation" as contained in the Prospectus dated May 31,
1984 filed as a part of Amendment No. 2 to Registrant's Form S-11 Registration
Statement (File No. 2-90016) attached hereto as Exhibit 99d. See "Item 13.
Certain Relationships and Related Transactions" for information on the fees and
other compensation or reimbursements paid to the General Partners or their
Affiliates during the year ended December 31, 1995.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
22
<PAGE> 25
No person (including any "group" as that term is used in Section 13 (d)(3) of
the Securities Exchange Act of 1934) is known to the Partnership to be the
beneficial owner of more than five percent of the outstanding voting Interests
as of December 31, 1995.
No General Partner, officer, director or partner of the General Partners
beneficially owned or owned of record directly or indirectly any Interests as of
December 31, 1995.
No arrangements are known to the Partnership which may result in a change of
control of the Partnership.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
During the year ended December 31, 1995 the Partnership reimbursed Murray
Income Properties II, Ltd. ("MIP II") for forty-seven percent (47%) of the costs
associated with the management of the Partnership and MIP II. MIP II is a
publicly-registered real estate limited partnership the general partners of
which are affiliates of the General Partners. The reimbursement has been
included in general and administrative expenses.
23
<PAGE> 26
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a) 1. Financial Statements - See Index to Financial Statements in Item 8
of this Form 10-K.
2. Financial Statement Schedules with Independent Auditors'
Report Thereon:
(i) Consolidated Valuation and Qualifying Accounts (Schedule II)
- Years ended December 31, 1995, 1994, and 1993.
(iii) Consolidated Real Estate and Accumulated Depreciation
(Schedule III) - December 31, 1995.
All other schedules have been omitted because they are not required
or the required information is shown in the consolidated financial
statements or notes thereto.
(b) Reports on Form 8-K filed during the last quarter of the year:
None
(c) Exhibits:
3a Agreement of Limited Partnership of Murray Income
Properties, Ltd.-84. Reference is made to Exhibit A of the
Prospectus dated May 31, 1984 contained in Amendment No. 2
to Partnership's Form S-11 Registration Statement (File No.
2-90016).
3b Amended and Restated Certificate and Agreement of Limited
Partnership dated as of May 23, 1984. Reference is made to
Exhibit 3b to the 1989 Annual Report on Form 10-K filed with
the Securities and Exchange Commission on March 31, 1989.
(File No. 0-14105)
3c Amended and Restated Certificate and Agreement of Limited
Partnership dated as of June 25, 1984. Reference is made to
Exhibit 3c to the 1989 Annual Report on Form 10-K filed with
the Securities and Exchange Commission on March 31, 1989.
(File No. 0-14105)
3d Amended and Restated Certificate and Agreement of Limited
Partnership dated as of November 27, 1984. Reference is made
to Exhibit 3d to the 1989 Annual Report on Form 10-K filed
with the Securities and Exchange Commission on March 31,
1989. (File No. 0-14105)
3e Amended and Restated Certificate and Agreement of Limited
Partnership dated as of April 1, 1985. Reference is made to
Exhibit 3e to the 1989 Annual Report on Form 10-K filed with
the Securities and Exchange Commission on March 31, 1989.
(File No. 0-14105)
3f Amended and Restated Certificate and Agreement of Limited
Partnership dated as of November 15, 1989. Reference is made
to Exhibit 3f to the 1989 Annual Report on Form 10-K filed
with the Securities and Exchange Commission on March 31,
1989. (File No. 0-14105)
24
<PAGE> 27
3g Amended and Restated Certificate and Agreement of Limited
Partnership dated as of January 10, 1990. Reference is made
to Exhibit 3g to the 1989 Annual Report on Form 10-K filed
with the Securities and Exchange Commission on March 31,
1989. (File No. 0-14105)
4 Form of Certificate representing Limited Partnership
Interest. Reference is made to Exhibit 4 to Amendment No. 1
to Partnership's Form S-11 Registration Statement, filed
with the Securities and Exchange Commission on May 17, 1984.
(File No. 2-90016)
10a Lease Agreement with Palo Alto Educational Systems, Inc. to
lease certain premises as described within the Lease
Agreement dated April 11, 1983 at Mountain View Plaza
Shopping Center. Reference is made to Exhibit 10m to the
1989 Annual Report on Form 10-K filed with the Securities
and Exchange Commission on March 31, 1989. (File No.
0-14105)
10b Lease Agreement with General Cinema Corporation of North
Carolina to lease certain premises as described within the
Lease Agreement dated July 23, 1985 at Tower Place Festival
Shopping Center. Reference is made to Exhibit 10o to the
1989 Annual Report on Form 10-K filed with the Securities
and Exchange Commission on March 31, 1989. (File No.
0-14105)
10c Lease Agreement with J&K Cafeterias to lease certain
premises as described in the Lease Agreement dated April 12,
1994 at Tower Place Festival Shopping Center. Reference is
made to Exhibit 10d to the 1994 Annual Report on Form 10-K
filed with the Securities Exchange Commission on March 21,
1995. (File No. 0-14105)
10d Data Processing System Use Agreement between Murray Income
Properties I, Ltd. and The Mavricc Management Systems, Inc.,
dated September 1, 1993. Reference is made to Exhibit 10o to
the 1993 3rd Quarter Report on Form 10-Q filed with the
Securities and Exchange Commission on November 10, 1993.
(File No. 0-14105)
10e Property Management Agreement and Exclusive Marketing
Agreement with Zell Management and Development, Inc. for
property management services described in the Property
Management Agreement dated December 20, 1989 (as extended
pursuant to the Extension of Property Management Agreement
dated December 4, 1995 at Mountain View Plaza Shopping
Center. Filed herewith.
10f Management Agreement with CK Retail Charlotte Overhead
Limited Partnership for management and operation services
described in the Management Agreement dated December 1, 1995
at Tower Place Festival Shopping Center. Filed herewith.
10g Management Agreement with The Powell Companies for
management and operation services described in the
Management Agreement dated February 1, 1992 at Castle Oaks
Shopping Center. Reference is made to Exhibit 10j to the
1992 Annual Report on Form 10-K filed with the Securities
and Exchange Commission on March 19, 1993. (File No.
0-14105)
10h Lease Modification Agreement No. 1 dated February 14, 1992
with Childtime Childcare, Inc. at Mountain View Plaza
Shopping Center. Reference is made
25
<PAGE> 28
to Exhibit 10k to the 1992 Annual Report on Form 10-K filed
with the Securities and Exchange Commission on March 19,
1993. (File No. 0-14105)
10i Lease Agreement with Reay's Ranch Markets, Inc. to lease
certain premises as described within the Lease Agreement
dated October 20, 1992 at Mountain View Plaza Shopping
Center. Reference is made to Exhibit 10m to the 1992 Annual
Report on Form 10-K filed with the Securities and Exchange
Commission on March 19, 1993. (File No. 0-14105)
10j Third Amendment to Lease with Reay's Ranch Markets, Inc.
dated November 3, 1993 at Mountain View Plaza Shopping
Center. Reference is made to Exhibit 10n to the 1993 Annual
Report on Form 10-K filed with the Securities and Exchange
Commission on March 21, 1994. (File No. 0-14105)
10k Lease Termination Agreement between Tower Place Joint
Venture and Kerr Drug Stores, Inc. dated November 12, 1993,
at Tower Place Festival Shopping Center. Reference is made
to Exhibit 10o to the 1993 Annual Report on Form 10-K filed
with the Securities and Exchange Commission on March 21,
1994. (File No. 0-14105)
10l Lease Agreement with Brown Group Retail, Inc. to lease
certain premises as described within the Lease Agreement
dated November 9, 1993 at Tower Place Festival Shopping
Center. Reference is made to Exhibit 10p to the 1993 Annual
Report on Form 10-K filed with the Securities and Exchange
Commission on March 21, 1994. (File No. 0-14105)
10m Lease Agreement with Razmiko's, Ltd. to lease certain
premises as described within the Lease Agreement dated
August 1, 1995 at Castle Oaks Shopping Center. Filed
herewith.
27 Financial Data Schedule. Filed herewith.
99a Glossary, as contained in the Prospectus dated May 31, 1984
filed as part of Amendment No. 2 to Registrant's Form S-11
Registration Statement (File No. 2-90016). Filed herewith.
99b Article XIII of the Agreement of Limited Partnership as
contained in the Prospectus dated May 31, 1984 filed as part
of Amendment No. 2 to Registrant's Form S-11 Registration
Statement (File No. 2-90016). Filed herewith.
99c Amendment number nine to the Agreement of Limited
Partnership contained in the Proxy Statement dated October
11, 1989. Filed herewith.
99d Management Compensation as contained in the Prospectus
(Pages 10 through 17) dated May 31, 1984 filed as part of
Amendment No. 2 to Registrant's Form S-11 Registration
Statement (File No. 2-90016). Filed herewith.
(d) Financial Statement Schedules with Independent Auditors' Report
Thereon:
(i) Consolidated Valuation and Qualifying Accounts (Schedule
II) - Years ended December 31, 1995, 1994, and 1993.
(ii) Consolidated Real Estate and Accumulated Depreciation
(Schedule III) - December 31, 1995.
26
<PAGE> 29
All other schedules have been omitted because they are not required or
the required information is shown in the consolidated financial
statements or notes thereto.
27
<PAGE> 30
INDEPENDENT AUDITORS' REPORT
The Partners
Murray Income Properties I, Ltd.:
Under date of February 27, 1996, we reported on the consolidated balance sheets
of Murray Income Properties I, Ltd. (a limited partnership) and consolidated
joint venture as of December 31, 1995 and 1994, and the related consolidated
statements of earnings, changes in partners' equity, and cash flows for each of
the years in the three-year period ended December 31, 1995, as contained in Item
8 of this annual report on Form 10-K. In connection with our audits of the
aforementioned consolidated financial statements, we also audited the related
consolidated financial statement schedules as listed in Item 14(a)2 of this
annual report on Form 10-K. These financial statement schedules are the
responsibility of the Partnership's management. Our responsibility is to express
an opinion on these financial statement schedules based on our audits.
In our opinion, such financial statement schedules, when considered in relation
to the basic consolidated financial statements taken as a whole, present fairly,
in all material respects, the information set forth therein.
KPMG Peat Marwick LLP
Dallas, Texas
February 27, 1996
28
<PAGE> 31
Schedule II
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
AND CONSOLIDATED JOINT VENTURE
CONSOLIDATED VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1995, 1994, AND 1993
<TABLE>
<CAPTION>
Balance at Charged to Balance at
beginning costs and end of
Description of period expenses Deductions period
----------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts:
Year ended December 31, 1993 $113,319 15,925 107,196 22,048
======== ====== ======= ======
Year ended December 31, 1994 $ 22,048 7,747 8,349 21,446
======== ====== ======= ======
Year ended December 31, 1995 $ 21,446 5,554 5,242 21,758
======== ====== ======= ======
</TABLE>
Deductions are primarily for writeoffs of accounts and notes receivables
deemed uncollectible by management.
29
<PAGE> 32
MURRAY INCOME PROPERTIES I, LTD.
(A LIMITED PARTNERSHIP)
REAL ESTATE AND ACCUMULATED DEPRECIATION
<TABLE>
<CAPTION>
COSTS CAPITALIZED
INITIAL COST SUBSEQUENT
TO PARTNERSHIP (A) TO ACQUISITION
----------------- -----------------
BUILDINGS AND
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS
----------- ------------ ---- ------------- ------------
<S> <C> <C> <C> <C>
Shopping Center
San Antonio, Texas $0 $1,240,051 $ 3,017,075 $ 478,422
Shopping Center
Scottsdale, Arizona $0 $2,805,238 $ 4,316,052 $ 693,674
Shopping Center
Pineville
(Charlotte),
North Carolina $0 $2,187,512 $10,280,876 $1,382,313
-- ---------- ----------- ----------
$0 $6,232,801 $17,614,003 $2,554,409
== ========== =========== ==========
</TABLE>
<TABLE>
<CAPTION>
GROSS AMOUNT
AT WHICH CARRIED AT
CLOSE OF PERIOD (D)
--------------------------------------------------------
BUILDINGS AND ACCUMULATED YEAR OF
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION
----------- ---- ------------- ----- ------------ ------------
<S> <C> <C> <C> <C> <C>
Shopping Center
San Antonio, Texas $1,240,051 $ 3,495,497 $ 4,735,548 $1,549,651 1985
Shopping Center
Scottsdale, Arizona $2,805,238 $ 5,009,726 $ 7,814,964 $2,091,509 1983
Shopping Center
Pineville
(Charlotte),
North Carolina $2,187,512 $11,663,189 $13,850,701 $4,438,121 1982
---------- ----------- ----------- ----------
$6,232,801 $20,168,412 $26,401,213 $8,079,281
========== =========== =========== ==========
</TABLE>
<TABLE>
<CAPTION>
Schedule III
LIFE ON WHICH
DEPRECIATION IN
FISCAL LATEST STATEMENT
YEAR OF EARNINGS
DESCRIPTION ACQUIRED IS COMPUTED
----------- -------- -----------
<S> <C> <C>
Shopping Center 1986 3-25 YEARS
San Antonio, Texas
Shopping Center 1985 3-25 YEARS
Scottsdale, Arizona
Shopping Center
Pineville
(Charlotte), 1986 3-25 YEARS
North Carolina
</TABLE>
(A) The initial cost to the Partnership represents the original purchase price
of the properties.
(B) Reconciliation of real estate owned for 1995, 1994 and 1993:
<TABLE>
<CAPTION>
1995 1994 1993
---- ---- -----------
<S> <C> <C> <C>
Balance at beginning of period $26,293,562 $26,146,677 $25,775,573
Additions during period $ 107,651 $ 146,885 $ 371,104
Retirements during period $ 0 $ 0 $ 0
----------- ---------- -----------
Balance at close of period $26,401,213 $26,293,562 $26,146,677
=========== =========== ===========
</TABLE>
(C) Reconciliation of accumulated depreciation for 1995, 1994 and 1993:
<TABLE>
<CAPTION>
1995 1994 1993
---- ---- ------------
<S> <C> <C> <C>
Balance at beginning of period $ 7,225,381 $ 6,366,535 $ 5,536,034
Depreciation expense $ 853,900 $ 858,846 $ 830,501
Retirements during period $ 0 $ 0 $ 0
----------- ----------- -----------
Balance at close of period $8,079,281 $ 7,225,381 $ 6,366,535
=========== =========== ===========
</TABLE>
(D) The aggregate cost of real estate at December 31, 1995 for Federal income
tax purposes is $26,542,716.
30
<PAGE> 33
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
MURRAY INCOME PROPERTIES I, LTD.
By: Crozier Partners VIII, Ltd.
a General Partner
Dated: March 21, 1996 By: /s/Jack E. Crozier
-------------------
Jack E. Crozier
a General Partner
By: Murray Realty Investors VIII, Inc.
a General Partner
Dated: March 21, 1996 By: /s/ Mitchell Armstrong
----------------------
Mitchell Armstrong
President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Murray Realty Investors VIII, Inc.
a General Partner
Dated: March 21, 1996 By: /s/ Brent Buck
---------------
Brent Buck
Executive Vice President
Director
Dated: March 21, 1996 By: /s/ Mitchell Armstrong
-----------------------
Mitchell Armstrong
Chief Executive Officer
Chief Financial Officer
Director
31
<PAGE> 34
INDEX TO EXHIBITS
Document Sequentially
Number Description Numbered Page
- -------- ----------- -------------
3a Agreement of Limited Partnership of Murray Income
Properties, Ltd.-84. Reference is made to Exhibit A
of the Prospectus dated May 31, 1984 contained in
Amendment No. 2 to Partnership's Form S-11
Registration Statement (File No. 2-90016).
3b Amended and Restated Certificate and Agreement of
Limited Partnership dated as of May 23, 1984.
Reference is made to Exhibit 3b to the 1989 Annual
Report on Form 10-K filed with the Securities and
Exchange Commission on March 31, 1989. (File No.
0-14105)
3c Amended and Restated Certificate and Agreement of
Limited Partnership dated as of June 25, 1984.
Reference is made to Exhibit 3c to the 1989 Annual
Report on Form 10-K filed with the Securities and
Exchange Commission on March 31, 1989. (File No.
0-14105)
3d Amended and Restated Certificate and Agreement of
Limited Partnership dated as of November 27, 1984.
Reference is made to Exhibit 3d to the 1989 Annual
Report on Form 10-K filed with the Securities and
Exchange Commission on March 31, 1989. (File No.
0-14105)
3e Amended and Restated Certificate and Agreement of
Limited Partnership dated as of April 1, 1985.
Reference is made to Exhibit 3e to the 1989 Annual
Report on Form 10-K filed with the Securities and
Exchange Commission on March 31, 1989. (File No.
0-14105)
3f Amended and Restated Certificate and Agreement of
Limited Partnership dated as of November 15, 1989.
Reference is made to Exhibit 3f to the 1989 Annual
Report on Form 10-K filed with the Securities and
Exchange Commission on March 31, 1989. (File No.
0-14105)
3g Amended and Restated Certificate and Agreement of
Limited Partnership dated as of January 10, 1990.
Reference is made to Exhibit 3g to the 1989 Annual
Report on Form 10-K filed with the Securities and
Exchange Commission on March 31, 1989. (File No.
0-14105)
4 Form of Certificate representing Limited Partnership
Interest. Reference is made to Exhibit 4 to Amendment
No. 1 to Partnership's Form S-11 Registration
Statement, filed with the Securities and Exchange
Commission on May 17, 1984. (File No. 2-90016)
32
<PAGE> 35
10a Lease Agreement with Palo Alto Educational Systems,
Inc. to lease certain premises as described within
the Lease Agreement dated April 11, 1983 at Mountain
View Plaza Shopping Center. Reference is made to
Exhibit 10m to the 1989 Annual Report on Form 10-K
filed with the Securities and Exchange Commission on
March 31, 1989. (File No. 0-14105)
10b Lease Agreement with General Cinema Corporation of
North Carolina to lease certain premises as described
within the Lease Agreement dated July 23, 1985 at
Tower Place Festival Shopping Center. Reference is
made to Exhibit 10o to the 1989 Annual Report on Form
10-K filed with the Securities and Exchange
Commission on March 31, 1989. (File No. 0-14105)
10c Lease Agreement with J&K Cafeterias to lease certain
premises as described in the Lease Agreement dated
April 12, 1994 at Tower Place Festival Shopping
Center. Reference is made to Exhibit 10d to the 1994
Annual Report on Form 10-K filed with the Securities
and Exchange Commission on March 21, 1995. (File No.
0-14105)
10d Data Processing System Use Agreement between Murray
Income Properties I, Ltd. and The Mavricc Management
Systems, Inc., dated September 1, 1993. Reference is
made to Exhibit 10o to the 1993 3rd Quarter Report on
Form 10-Q filed with the Securities and Exchange
Commission on November 10, 1993. (File No. 0-14105)
10e Property Management Agreement and Exclusive Marketing
Agreement with Zell Management and Development, Inc.
for property management services described in the
Property Management Agreement dated December 20, 1989
(as extended pursuant to the Extension of Property
Management Agreement dated December 4, 1995 at
Mountain View Plaza Shopping Center. Filed herewith.
10f Management Agreement with CK Charlotte Retail
Overhead Limited Partnership for management and
operation services described in the Management
Agreement dated December 1, 1995 at Tower Place
Festival Shopping Center. Filed herewith.
10g Management Agreement with The Powell Companies for
management and operation services described in the
Management Agreement dated February 1, 1992 at Castle
Oaks Shopping Center. Reference is made to Exhibit
10j to the 1992 Annual Report on Form 10-K filed with
the Securities and Exchange Commission on March 19,
1993. (File No. 0-14105)
10h Lease Modification Agreement No. 1 dated February 14,
1992 with Childtime Childcare, Inc. at Mountain View
Plaza Shopping Center. Reference is made to Exhibit
10k to the
33
<PAGE> 1
EXTENSION OF PROPERTY MANAGEMENT AGREEEMENT
This Extension of Property Management Agreement hereinafter referred to as
"Agreement" entered into this 4th day of December, 1995 by and between Murray
Income Properties I, Ltd., a Texas limited partnership, hereinafter referred to
as "Owner" and ZELL Commercial Real Estate Services, Inc., an Arizona
corporation, hereinafter referred to as "Agent".
RECITALS:
A. Owner and Agent are parties to that certain Property Management
Agreement dated December 20, 1989 covering the Mountain View Plaza
Shopping Center located at the southeast corner of Mountain View Road
and Hayden Road, Scottsdale, Arizona; and
B. The term of the aforesaid Property Management Agreement was to expire
on December 31, 1995. The parties thereto are mutually desirous of
extending the term of the Property Management Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
1. the expiration date of the Property Management Agreement shall be
December 31, 1996.
2. All other terms and conditions of the Property Management Agreement
shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date and
year first above written.
WITNESS: Murray Income Properties I, Ltd., a Texas
limited partnership by Murray Realty
Investors VIII, Inc., a Texas corporation,
its general partner (Owner)
/s/ CYNTHIA G. COLEMAN
- ------------------------------- By: /s/ BRENT BUCK
Cynthia G. Coleman ----------------------------------------
Brent Buck, Executive Vice President
WITNESS: ZELL Commercial Real Estate Services, Inc.,
an Arizona corporation (Agent)
/s/ KELLI DERNOVISH
- ------------------------------- By: /s/ ALAN L. ZELL
Kelli Dernovish ----------------------------------------
Alan L. Zell, President
<PAGE> 2
EXTENSION OF EXCLUSIVE MARKETING AGREEMENT
This Extension of Exclusive Marketing Agreement hereinafter refered to as
"Agreement" entered into the 4th day of December, 1995 by and between Murray
Income Properties I, Ltd., a Texas limited parthership, hereinafter referred to
as "Owner" and ZELL Commercial Real Estate Services, Inc., an Arizona
corporation, hereinafter referred to as "Agent".
RECITALS:
A. Owner and Agent are parties to that certain Exclusive Marketing
Agreement dated January 10, 1990 covering the Mountain View Plaza
located at the southeast corner of Mountain View Road and Hayden Road,
Scottsdale, Arizona; and
B. The term of the aforesaid Agreement was to expire on December 31,
1995. The parties thereto are mutually desirous of extending the term
of the Exclusive Marketing Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
1. The expiration date of the Exclusive Marketing Agreement shall be
December 31, 1996.
2. All other terms and conditions of the Exclusive Marketing Agreement
shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this document this day and
year first above written.
WITNESS: Murray Income Properties I, Ltd., a Texas
limited partnership by Murray Real
Investors VIII, Inc., a Texas corporation, its
General partner (Owner)
/s/ CYNTHIA G. COLEMAN
- ----------------------------- By: /s/ BRENT BUCK
Cynthia G. Coleman ----------------------------------------
Brent Buck, Executive Vice President
WITNESS: ZELL Commercial Real Estate Services, Inc.,
an Arizona corporation (Agent)
/s/ KELLI DERNOVISH
- ----------------------------- By: /s/ ALAN L. ZELL
Kelli Dernovish ----------------------------------------
Alan L. Zell, President
<PAGE> 1
December 1, 1995 CHILDRESS KLEIN PROPERTIES
Mr. Brent Buck
Murray Income Properties
5550 LBJ Freeway, Suite 675
Lockbox #6
Dallas, TX 75240
RE: Tower Place Festival
Management Contract Renewal
Dear Brent:
Our current management agreement, dated December 12, 1994 between Murray Income
Properties and CK Retail Charlotte Overhead Limited Partnership is in the
process of expiring. It is our desire to renew this management contract until
December 31, 1996, upon the same terms and conditions as the previous management
agreement, dated December 12, 1994, with the exception that the term shall now
expire on December 31, 1996. I have attached as Exhibit "A", a copy of the
December 12, 1994 management agreement and would like you to indicate your
approval of the renewal and the new expiration date by signing this renewal
agreement in the appropriate space below.
It has been a pleasure to be the property manager/leasing agent at Tower Place
Festival and look forward to continuing our relationship as your management
agent in the future.
<TABLE>
RENEWAL AGREEMENT ACCEPTED:
<S> <C>
CK Charlotte Overhead Limited Partnership Tower Place Joint Venture
a North Carolina Limited Partnership By: Murray Income Properties I, LTD
By: Childress Klein Retail-Charlotte A Texas Ltd. Partnership, Joint Venturer
#2 Inc., Its General Partner By: Murray Realty Investors VIII, Inc.
A Texas Corp., General Partner
By: /s/ DAVID S. MILLER By: /s/ BRENT BUCK
-------------------------- --------------------------------
David S. Miller, President Brent Buck, Executive Vice President
Attest/Witness: Attest/Witness:
/s/ ALYSON J. NARRON /s/ JONI ARMSTRONG
- -------------------------------- ------------------------------------
Title: Alyson Narron, Secretary Title: Joni Armstrong
(Corporate Seal)
</TABLE>
2800 One First Union Center
301 S. College Street
Charlotte, NC 28203-6021
(704) 342-9000
FAX (704) 342-9039
<PAGE> 1
Lease Agreement
Between
Murray Income Properties I, Ltd., as Landlord
and
Razmiko's, Ltd, as Tenant
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE 1 Definitions and Certain Basic Provisions ................. 1
ARTICLE 2 Granting Clause .......................................... 1
ARTICLE 3 Rent and Security Deposit ................................ 1
ARTICLE 4 Tenant's Books and Records ............................... 3
ARTICLE 5 Common Area .............................................. 3
ARTICLE 6 Use and Care of Premises ................................. 5
ARTICLE 7 Maintenance and Repair of Premises ....................... 6
ARTICLE 8 Leasehold Improvements; Alterations ...................... 7
ARTICLE 9 Landlord's Right of Access; Use of Roof .................. 8
ARTICLE 10 Signs; Store Fronts ...................................... 8
ARTICLE 11 Utilities ................................................ 8
ARTICLE 12 Indemnity, Public Liability Insurance and
Fire and Extended Coverage Insurance ..................... 9
ARTICLE 13 Non-Liability for Certain Damages ........................ 10
ARTICLE 14 Damage by Casualty ....................................... 11
ARTICLE 15 Eminent Domain ........................................... 12
ARTICLE 16 Assignment and Subletting ................................ 12
ARTICLE 17 Property Taxes ........................................... 14
ARTICLE 18 Default by Tenant and Remedies ........................... 15
ARTICLE 19 Landlord's Lien .......................................... 19
ARTICLE 20 Holding Over ............................................. 19
ARTICLE 21 Subordination ............................................ 20
ARTICLE 22 Notices .................................................. 21
ARTICLE 23 Right of Relocation ...................................... 21
ARTICLE 24 Bankruptcy or Insolvency ................................. 22
ARTICLE 25 Miscellaneous ............................................ 24
ARTICLE 26 Exhibits and Attachments ................................. 27
</TABLE>
11
<PAGE> 3
BASIC LEASE INFORMATION
CASTLE OAKS VILLAGE SHOPPING CENTER LEASE AGREEMENT
"Landlord": Murray Income Properties I, LTD.
Landlord's address: 3330 Oakwell Court, Suite 205
San Antonio, Texas 78232
Landlord's Contact Person: The Powell Companies
Telephone Number: (210) 828-7997
"Tenant": Razmiko's, Ltd.
---------------------------------------------------------------------
Tenant's Address: 8055 West Ave., Suite 124
-------------------------------------------------------------
San Antonio, Texas 78232
---------------------------------------------------------------------
Tenant's Contact Person: Razmik Boghozian
-------------------------------------------------------
Telephone Number: 366-0416
--------------------------------------------------------------
Tenant's Trade Name: Razmiko's
-----------------------------------------------------------
"Premises": Suite 124, Castle Oaks Village. The Premises contain
approximately 4,500 square feet and are shown and outlined on
the plan of the Shopping Center attached hereto as Exhibit A.
The Shopping Center currently is situated upon the property
described on Exhibit B attached hereto. "Shopping Center" shall
refer to the property described on Exhibit B and all
improvements constructed thereon; provided, however, that from
time to time Landlord may add land to or remove land from the
property described on Exhibit B by notice to Tenant and, after
any such addition or deletion, the term "Shopping Center" shall
refer to the Shopping Center as reconstituted by Landlord.
"Lease Term": The period commencing on the "Commencement Date" (as defined in
Section 2.1 of the lease) and ending sixty (60) months
thereafter, except that, if the Commencement Date is a date
other than the first day of a month, the Lease Term shall be
extended so as to give effect to the full term specified above
in addition to the remainder of the month in which the
Commencement Date occurs. The term "Lease Term," as used herein,
shall include all valid renewals or extensions thereof (whether
or not expressly stated) unless the context clearly indicates to
the contrary.
Estimated Commencement Date: October 1 , 1995 .
---------------------------------- --
"Rental": $ * per square foot per year, payable in advance in monthly
-----------
installments of $ * each. The Rental shall increase as
----------
follows: *
---------------------------------------------------------
Initial "Common Area Maintenance Charge"
(as defined in Section 5.2) per month: $ 405.00 .
---------------------
Initial "Insurance Escrow Payment"
(as defined in Section 12.7) per month: $ 90.00 .
---------------------
Initial "Tax Escrow Payment"
(as defined in Section 17.2) per month: $ 630.00 .
---------------------
<TABLE>
<CAPTION>
*Rental: Months Monthly Payment
------ ---------------
<S> <C>
1 - 12 $4,125.00
13 - 24 $4,500.00
25 - 60 $4,687.50
</TABLE>
<PAGE> 4
"Security Deposit": $ 5,000.00 .
-------------------------------------
Permitted Use: Italian Restaurant
----------------------------------------------------------------
"Guarantors": William R. Mallory, Jr.
----------------------------------------------------------------
The foregoing Basic Lease Information is hereby incorporated into and made a
part of the lease attached hereto.
Each reference in the lease to any of the information and definitions set
forth in Basic Lease Information shall mean and refer to the information and
definitions hereinabove set forth and shall be used in conjunction with and
limited by all references thereto in the provisions of the lease. In the event
of any conflict between any Basic Lease Information and the lease, the lease
shall control.
LANDLORD:
Murray Income Properties I, LTD.
By: Murray Realty Investors VIII, Inc.
Date: 8-1-95 By: /s/ Brent Burt
------------------------ --------------------------------------
TENANT:
Razmiko's, Ltd.
---------------------------------------------
Date: 7-28-95 By: Gastronome, Inc., the General Partner
------------------------ --------------------------------------
Name: /s/ W. R. Mallory, Jr.
----------------------------------------
Title: President
---------------------------------------
<PAGE> 5
LEASE AGREEMENT
THE STATE OF TEXAS )
)
COUNTY OF BEXAR )
This Lease Agreement (this "lease") is entered into as of the first day
on which both parties hereto have executed same, by and between the Landlord
and the Tenant named in the Basic Lease Information.
ARTICLE 1
Definition and Certain Basic Provisions
1.1 The definitions and basic provisions set forth in the Basic Lease
Information (the "Basic Lease Information") executed by Landlord and Tenant
contemporaneously herewith and incorporated herein by reference for all
purposes and shall be used in conjunction with and limited by the reference
thereto in the provisions of this lease.
ARTICLE 2
2.1 Landlord, in consideration of the rent and other charges to be paid
hereunder and in consideration of the other covenants and agreements to be
performed by Tenant, hereby demises and leases to Tenant, and Tenant hereby
takes from Landlord, the Premises commencing on the 60th day after the date upon
which Tenant occupies the Premises (the "Commencement Date" hereunder) and
ending on the last day of the Lease Term unless sooner terminated as herein
provided. If the Premises are not available and ready for occupancy, for any
reason whatsoever, prior to the Estimated Commencement Date set forth in the
Basic lease Information, Landlord shall not be deemed to be in default
hereunder, and Landlord shall not be liable or responsible for any claims,
damages or liabilities in connection therewith or by reason thereof, and Tenant
agrees to accept possession of the Premises at such time as Landlord is able to
tender the same and this lease shall continue for the Lease Term. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises or the Shopping Center
or with respect to the suitability of either for the purpose herein intended. By
occupying the Premises, Tenant shall be deemed to have accepted the same as
suitable for the purpose herein intended and to have acknowledged that same
comply fully with Landlord's obligations, notwithstanding that certain "punch
list" type items may not have been completed. Within ten (10) days after a
written request of Landlord, Tenant agrees to executed a certificate in the form
attached hereto as Exhibit C confirming the Commencement Date and certifying
that Tenant has accepted delivery of the Premises and that the condition of the
Premises complies with Landlord's obligations hereunder. Tenant agrees to open
its business to be conducted on the Premises to the public no later than thirty
(30) days after the Commencement Date.
ARTICLE 3
3.1 In consideration of this lease, Tenant promises and agrees to pay
to Landlord at Landlord's Address stated in the Basic Lease Information or at
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
<PAGE> 6
such other address as Landlord may designate by notice in writing to Tenant,
the Monthly Payment (defined below), without deduction or set-off, for each
month of the Lease Term. "Monthly Payment" shall mean the sum of the monthly
Rental (as adjusted in accordance with the provisions of the Basic Lease
Information), the monthly Common Area Maintenance Charge (as set forth in
Article 5), the monthly Common Area Maintenance Charge (as set forth in Article
5), the monthly Insurance Escrow Payment (as set forth in Article 12) and the
monthly Tax Escrow Payment (as set forth in Article 17). The initial Monthly
Payment due hereunder shall be equal to the Total Initial Monthly Payment
stated in the Basic Lease Information. The first Monthly Payment, together with
the Security Deposit, shall be payable by Tenant to Landlord upon the execution
of this lease. The second Monthly Payment shall be due and payable without
demand on or before the first day of the month following the expiration of the
first full or partial month of the Lease Term and thereafter each succeeding
Monthly Payment shall be due and payable without demand on or before the first
day of each succeeding month during the Lease Term; provided, however, that in
the event of a fractional month at the beginning of the Lease Term, the second
Monthly Payment shall be a prorated amount based on one-thirtieth (1/30) of the
initial Monthly Payment for each day of said fractional month which is included
in the Lease Term.
3.2 The Security Deposit shall be held by Landlord without liability
for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this lease, it being expressly understood that
the Security Deposit shall not be considered an advance payment of rental or a
measure of Landlord's dmages in case of default by Tenant. Landlord may, from
time to time, without prejudice to any other remedy, use such deposit to the
extent necessary to make good any arrearage of the Monthly Payment or other
amounts due hereunder and to reimburse Landlord for any other damage, injury,
expense or liability caused to Landlord by any breach of this lease. Following
any such application of the Security Deposit, Tenant shall pay to Landlord on
demand the amount so applied in order to restore the Security Deposit to its
original amount. If Tenant is not then in default hereunder, one-half (1/2) of
any remaining balance of the Security Deposit shall be returned by Landlord to
Tenant within a reasonable period of time after the expiration of this lease,
and the balance of the Security Deposit shall be held by Landlord until final
computation of any sums (such as Tenant's Share of the Taxes) which may be owed
by Tenant under this lease. If Landlord transfers its interest in the Premises
during the Lease Term, Landlord shall assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return of
the Security Deposit. Landlord shall not be required to keep the Security
Deposit separate from its general funds.
3.3 In the event Tenant fails to pay to Landlord when due any Monthly
Payment or other sum to be paid to Landlord which may become due hereunder,
Landlord will incur additional expenses in an amount not readily ascertainable
and which have not been elsewhere provided for between Landlord and Tenant. If
Tenant should fail to pay Landlord by the tenth (10th) after its due day, any
Monthly Payment or other sum to be paid hereunder, Tenant will pay Landlord on
demand a late charge of five percent (5%) thereof. Failure to pay such late
charge upon demand therefore shall be an event of default hereunder. In the
event that a check which has been remitted for the payment of any installment of
rental or other sum to be paid to Landlord hereunder shall not be honored upon
its presentment for payment, Tenant shall pay to Landlord on demand a fee of
five percent (5%) of the installment of rental or other sum to be paid, and
failure to pay such fee shall be an event of default hereunder. Following the
dishonor of any check presented for payment, Landlord shall have the right, at
Landlord's sole option, to require all further payments to be made hereunder to
be made by certified check or money order. Provision for such late charge or fee
for dishonor shall be in addition to all other rights and remedies available to
Landlord hereunder or at law or in equity and shall not be construed as
liquidated damages or limiting Landlord's remedies in any manner.
<PAGE> 7
ARTICLE 4
Tenant's Books and Records
4.1 Tenant shall provide unaudited financial statements upon
Landlords, and/or its agents, request.
ARTICLE 5
Common Area
5.1 "Common Area" shall mean those portions of the Shopping Center
designated by Landlord from time to time for the common use of all tenants
thereof, including among other facilities, parking areas, sidewalks,
landscaping, curbs, loading areas, private streets and alleys, lighting
facilities, hallways, malls, restrooms, and other areas and improvements
provided by Landlord for the common use of all tenants, all of which shall be
subject to Landlord's sole management and control and shall be operated and
maintained in such manner as Landlord, in its discretion, shall determine.
Landlord reserves the right to change from time to time the dimensions and
location of the Common Area as shown on Exhibit A as well as the locations,
dimensions, identity and type of any building shown on Exhibit A, to construct
additional buildings or additional stories on existing buildings or other
improvements in the Shopping Center, and to eliminate buildings from the plan
shown on Exhibit A. Tenant and its employees, customers, subtenants, licensees
and concessionaires shall have the nonexclusive right and license to use the
Common Area as constituted from time to time, such use to be in common with
Landlord, other tenants of the Shopping Center and other persons permitted by
Landlord to use the same, and subject to such reasonable rules and regulations
governing use as Landlord may from time to time prescribe, including the
designation of specific areas within the Shopping Center or in reasonable
proximity thereto in which automobiles owned by Tenant, its employees,
subtenants, licensees and concessionaires shall be parked. Tenant shall not
obstruct or permit the obstruction of any portion of the Common Area. Tenant
will furnish to Landlord upon request a complete list of license numbers of all
automobiles operated by Tenant, its employees, subtenants, licensees or
concessionaires. In the event any such persons fail to park their vehicles in
any parking area designated by Landlord as provided above, Landlord shall have
the right to remove any such vehicle by towing or otherwise, and Tenant shall
reimburse Landlord for the cost of such removal upon demand from Landlord
therefor and shall indemnify Landlord and hold it harmless from any loss,
expense or claims arising out of such removal. Additionally, Landlord may
impose a fine for improperly parked vehicles. The amount of such fine shall
vary from time to time and shall be effective upon Landlord's notice to Tenant
thereof. Tenant shall not solicit business or display merchandise within the
Common Area, or distribute handbills therein, or take any action which would
interfere with the rights of other persons to use the Common Area without the
prior written consent of Landlord. Landlord may close temporarily any part of
the Common Area for such periods of time as may be necessary to prevent the
public from obtaining prescriptive rights or to make repairs or alterations.
5.2 As part of the Monthly Payment, Tenant agrees to pay the Common
Area Maintenance Charge as additional rental hereunder. The term "Common Area
Maintenance Charge" shall mean a monthly amount calculated by multiplying
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Tenant's Share by the annual cost of operating and maintaining the Common Area
and such other areas of the Shopping Center which benefit generally the tenants
of the Shopping Center (e.g., the roofs, floors and structural elements of the
buildings comprising the Shopping Center) (including, among other costs, those
incurred for water; electricity; gardening; landscaping (including replacement
of plants); repair and maintenance (including paving, utility services, line
painting, lighting, sanitary control, cleaning, drainage, exterior painting of
improvements and maintenance of all roofs); air conditioning; heating; sewer;
trash removal; depreciation on machinery and equipment used in connection with
the maintenance of the Common Area; personnel to implement such services, to
direct parking, and if Landlord so elects, to police the Common Area; the cost
of capital improvements to the Common Area where such capital improvements are
required or recommended by applicable federal, state or local laws, ordinances,
statutes, rules or regulations (amortized upon such reasonable basis as
Landlord may elect); directional signs and markers; janitorial services;
purchase and maintenance of trash containers; repairs to lighting fixtures and
equipment; legal services attributable to the operations of the Shopping
Center; outside professional services such as security, direction of parking,
landscaping or pest treatment; and an administrative charge to be not more than
fifteen percent (15%) of the foregoing costs to cover Landlord's administrative
cost incurred in connection with the Shopping Center), all as incurred by
Landlord in its discretion, and dividing the amount so determined by twelve
(12). The monthly Initial Common Area Maintenance Charge is the amount set out
in the Basic Lease Information, and is based upon Landlord's estimate of the
annual cost of operating and maintaining the Common Area during the initial
calendar year of the Lease Term. The Common Area Maintenance Charge shall be
adjusted from time to time, based upon Landlord's most current estimate of the
Common Area expenses, and any adjustment in the monthly amount paid hereunder
shall take effect on the first day of the month following the month in which
Landlord advises Tenant of the adjusted Common Area Maintenance Charge. Any
amounts paid based on any of Landlord's estimates of Common Area expenses shall
be subject to adjustment pursuant to Section 5.3 below when the actual Common
Area expenses are available for each calendar year. To determine the monthly
Common Area Maintenance Charge with respect to any fractional calendar year
during the Lease Term, Landlord shall estimate the Common Area expenses for the
portion of the Lease Term which falls during such partial year, multiply said
amount by Tenant's Share, and divide the amount so determined by the number of
months in the partial year, with an adjustment to be made upon Landlord's
determination of actual Common Area expenses for such partial year. "Tenants
Share" as used herein shall be 13.46%.
5.3 Within a reasonable time after the end of any calendar year during
the Lease Term, Landlord shall furnish to Tenant a statement of the Common Area
expenses incurred during the previous calendar year. If Common Area Maintenance
Charges collected from Tenant for any calendar year (or portion thereof) during
the Lease Term, based on Landlord's estimate of Common Area expenses exceed the
Common Area Maintenance Charge actually due during such year (or portion
thereof), then Landlord at Landlord's option either shall credit any
overpayment towards the sums next falling due under this lease, or shall refund
to Tenant any overpayment. Likewise, Tenant shall pay to Landlord within ten
(10) days after Landlord delivers such statement to Tenant the amount by which
Tenant's Share of Common Area expenses for any calendar year (or portion
thereof) during the Lease Term, exceeds the sum of the payments received by
Landlord from Tenant based on Landlord's estimate of Common Area expenses for
such calendar year (or portion thereof).
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ARTICLE 6
Use and Care of Premises
6.1 The Premises may be used only for the Permitted Use specified in
the Basic Lease Information, and for no other purpose or purposes without the
prior written consent of Landlord. Tenant shall use in the transaction of
business in the Premises the trade name specified in the Basic Lease
Information and no other trade name without the prior written consent of
Landlord. Tenant shall not at any time leave the Premises vacant, but shall in
good faith continuously throughout the Lease Term conduct and carry on in the
entire Premises the type of business for which the Premises are leased. Tenant
shall operate its business in a high class and reputable manner. Tenant shall
at all times be in compliance with the terms of any franchise or development
agreement to which Tenant is a part, and agrees to provide Landlord with a copy
of any such agreement, to require the other party to any such agreement to
notify Landlord of any breach thereof, and to provide reasonable evidence of
Tenant's compliance with such agreements upon Landlord's request.
6.2 Tenant shall observe, perform and comply with all laws, statutes,
ordinances, rules and regulations promulgated by any governmental agency and
applicable to the Premises. Tenant shall not occupy or use the Premises or
permit any portion of the Premises to be occupied or used for any use or
purpose which is unlawful in part or in whole, or deemed by Landlord to be
disreputable in any manner or out of harmony with the operation of a
first-class shopping center, or extra hazardous on account of fire, nor keep
anything within the Premises for any purpose which increases the insurance
premium cost or invalidates an insurance policy carried on the Premises or the
Shopping Center. In addition to Tenant's obligation to make Insurance Escrow
Payments, upon demand from Landlord Tenant shall pay as additional rental, any
increase in premium cost due to Tenant's use or occupation of the Premises.
6.3 Tenant shall not conduct within the Premises any fire, auction or
bankruptcy sales or operate within the Premises a "wholesale" or "factory
outlet" store, a cooperative store, a "second hand" store, a "surplus" store or
a store commonly referred to as "discount house." Tenant shall warehouse and
store in the Premises only such goods, wares and merchandise as Tenant intends
to offer for sale at retail from the Premises. Tenant shall not advertise that
it sells products or services at "discount," "cutprice," or "cut-rate" prices.
Tenant shall not permit any objectionable or unpleasant odors to emanate from
the Premises; nor place or permit any radio, television, loud speaker or
amplifier on the roof or outside the Premises or where the same can be seen or
heard from outside the Premises or in the Common Area; nor place an antenna or
other projection on the exterior of the Premises; nor solicit business or
distribute leaflets or other advertising material in the Common Area; nor take
any other action which in the exclusive judgment of Landlord would constitute a
nuisance or would disturb or endanger other tenants of the Shopping Center or
unreasonably interfere with their use of their respective premises; nor do
anything which would tend to injure the reputation of the Shopping Center.
6.4 Tenant shall take good care of the Premises and keep the same free
from waste at all times. Tenant shall keep the Premises and sidewalks,
serviceways and loading areas adjacent to the Premises neat, clean and free
from dirt, rubbish, insects and pests at all times, and shall store all trash
and garbage within the Premises. Tenant either shall arrange for the pick-up
and removal of such trash and garbage at Tenant's expense, or if Landlord so
elects, shall pay Tenant's Share of said trash removal as a part of the Common
Area Maintenance Charge. Tenant shall store all trash and garbage within the
portion of the Common Area designated by Landlord for trash pickup and removal
and only in receptacles of the size, design and color from time to time
prescribed by Landlord. Tenant will keep all trash receptacles closed and will
fold all boxes before placing them in the receptacles. Receipt and delivery of
goods and merchandise and removal of garbage and trash shall be made only in
the manner
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and areas from time to time prescribed by Landlord. Tenant shall not operate an
incinerator or burn trash or garbage within the Shopping Center.
6.5 Tenant shall maintain all display windows in a neat, attractive
condition, and shall keep all display windows and exterior electric signs in
front of the Premises lighted from dusk until 10:00 p.m. every day, including
Sundays and holidays.
6.6 Tenant shall procure, at its sole expense, any permits and
licenses required for the transaction of business in the Premises.
Article 7
Maintenance and Repair of Premises
7.1 Landlord shall keep the foundation, the exterior walls (except
store fronts, plate glass windows, doors, door closure devices, window and door
frames, molding, locks and hardware and painting or other treatment of interior
and exterior walls) and roof of the Premises in good repair, except that
Landlord shall not be required to make any repairs occasioned by the act or
negligence of Tenant, its agents, employees, subtenants, licensees or
concessionaires, which repairs shall be made by Tenant at Tenant's sole cost
and expense. In the event that the Premises should become in need of repairs
required to be made by Landlord hereunder, Tenant shall give immediate written
notice thereof to Landlord, and Landlord shall not be responsible in any way
for failure to make any such repairs until a reasonable time shall have elapsed
after delivery of such written notice. Landlord shall have no obligation to
repair or maintain the Premises except as specified in this Section 7.1, and
Landlord shall have no liability for any damages or injury arising out of any
condition or occurrence causing a need for such repairs.
7.2 Tenant shall furnish, maintain and replace all electric light
bulbs, tubes and tube casings.
7.3 Tenant shall keep the Premises in good, clean condition and
shall, at its sole cost and expense, make all repairs and replacements
(including replacement of cracked or broken glass) necessary to maintain the
Premises in a condition commensurate with a first class retail shopping center
in Bexar County, Texas, except for repairs and replacements required to be made
by Landlord under the provisions of Section 7.1 and Article 14. Tenant shall
take all precautions necessary to keep all plumbing units, pipes and
connections free from obstruction and protected against ice and freezing. If
any repairs required to be made by Tenant hereunder are not made within ten
(10) days after written notice delivered to Tenant by Landlord, Landlord may,
at its option, make such repairs without liability to Tenant for any loss or
damage which may result to its stock or business by reason of such repairs, and
Tenant shall pay to Landlord within five (5) days after demand as additional
rental hereunder the cost of such repairs plus ten percent (10%) of the amount
thereof. At the expiration or other termination of this lease, Tenant shall
surrender the Premises in good condition, reasonable wear and tear and loss by
fire or other casualty excepted and shall surrender all keys for the Premises
to Landlord and shall inform Landlord of all combinations on locks, safes and
vaults, if any, in the Premises.
7.4 Maintenance of the air conditioning and heating equipment
provided Tenant shall be Tenant's sole responsibility throughout the entire
term of this lease. Landlord will ensure air conditioning and heating equipment
are operational upon occupancy, and warranty air conditioning and heating
equipment for ninety (90) days, thereafter.
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ARTICLE 8
Leasehold Improvements; Alterations
8.1 Improvements to the Premises shall be installed as provided in
Exhibit D. Landlord has made no representations as to the condition of the
Premises or the Shopping Center, and Landlord has made no promises to remodel,
repair or decorate the Premises, except as expressly set forth in this lease.
8.2 Tenant shall not make or permit to be made any alterations,
additions or improvements to the Premises without the prior written consent of
Landlord, except for the installation of unattached, movable trade fixtures
which may be installed without drilling, cutting or otherwise defacing the
Premises. All alterations, additions, improvements and fixtures (other than
unattached, movable trade fixtures) which may be made or installed by either
Tenant or Landlord upon the Premises shall remain upon and be surrendered with
the Premises and become the property of Landlord without credit or compensation
to Tenant at the termination of this lease unless Landlord requests their
removal, in which event Tenant shall remove the same and restore the Premises
to their original condition at Tenant's expense. Any linoleum, carpeting or
other floor covering which may be cemented or otherwise affixed to the floor of
the Premises is a permanent fixture and shall become the property of Landlord
without credit or compensation to Tenant.
8.3 All construction work done by Tenant within the Premises shall be
performed in a good and workmanlike manner, in compliance with all governmental
requirements and the requirements of any contract or deed of trust to which
Landlord may be a party, and in such manner as to cause a minimum of
interference with other construction in progress and with the transaction of
business in the Shopping Center. Tenant agrees to indemnify Landlord and hold
it harmless against any loss, liability or damage resulting from such work, and
Tenant shall, if requested by Landlord, furnish a bond or other security
satisfactory to Landlord against any such loss, liability or damage.
8.4 Tenant agrees that all venting, opening, sealing, waterproofing or
any altering of the roof shall be performed by Landlord's roofing contractor at
Tenant's expense and that when completed Tenant shall furnish to Landlord a
certificate from Landlord's roofing contractor that all such alterations
approved by Landlord have been completed in accordance with the plans and
specifications theretofore approved by Landlord. Tenant hereby holds Landlord
harmless from any damage to the Premises resulting, directly or indirectly,
from Tenant's venting, opening, sealing, waterproofing or in any other way
altering the roof.
8.5 Tenant will not permit any mechanic's lien or liens to be placed
upon the Premises, or any portion thereof, caused by or resulting from any work
performed, materials furnished or obligation incurred by or at the request of
Tenant, and in the case of the filing of any such lien, Tenant will immediately
pay, obtain the release of, or bond around same (such bond to be in the form
and amount prescribed by the Texas Property Code). Tenant may pursue legitimate
disputes with contractors, suppliers or materialmen. If any lien is not removed
(or bonded around) within sixty (60) days, Landlord shall have the right and
privilege at Landlord's option of paying the same or any portion thereof
without inquiry as to the validity thereof, and any amounts so paid, including
expenses and interest, shall be so much additional rent hereunder due from
Tenant to Landlord and shall be repaid to Landlord (together with interest at
the lesser of the rate of eighteen percent (18%) per annum or the maximum rate
permitted by law from the date paid by Landlord) within ten (10) days after
Tenant's receipt of a statement from Landlord therefor.
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ARTICLE 9
Landlord's Right to Access; Use of Roof
9.1 Landlord shall have the right to enter upon the Premises at any
reasonable time that will not interfere with Tenant's day to day operations of
the business, for any reasonable purpose, including without limitation,
inspecting same, making repairs to the Premises, making repairs, alterations or
additions to adjacent premises, or showing the Premises to prospective
purchasers, lessees or lenders.
9.2 Use of the roof above the Premises is reserved to Landlord.
ARTICLE 10
Signs; Store Fronts
10.1 Tenant shall not, without Landlord's prior written consent (i)
make any changes to or paint the store front; (ii) install any exterior
lighting, decorations or paintings; or (iii) erect or install any signs, window
or door lettering, placards, decorations or advertising media of any type which
can be viewed from the exterior of the Premises, excepting only dignified
displays of customary type in its display windows. All signs, decorations and
advertising media shall conform in all respects to the sign criteria
established by Landlord for the Shopping Center from time to time in the
exercise of its sole discretion, and shall be subject to the prior written
approval of Landlord as to construction, method of attachment, size, shape,
height, lighting, color and general appearance. All signs shall be kept in good
condition and in proper operating order at all times. Landlord reserves the
right to designate a uniform type of sign for the Shopping Center to be
installed and paid for by Tenant.
10.2 Tenant agrees to have erected and/or installed and fully operative
on or before the Commencement Date all signs in accordance with Landlord's sign
criteria. Upon vacation of the Premises, Tenant shall be responsible for the
removal of its sign, and further, upon the removal or alteration of its sign
for any reason, shall be responsible for the repair, painting, and/or
replacement of the building fascia surface where signs are or were attached.
ARTICLE 11
Utilities
11.1 Landlord agrees to cause to be provided and maintained to the
points on the exterior wall of the Premises where the particular utility enters
therein, those mains, conduits and other facilities necessary to supply water,
electricity, telephone service and sewerage service to the Premises. Tenant
shall be responsible for investigating the capacity of the service available to
the Premises.
11.2 Tenant shall pay promptly and before delinquency all charges for
electricity, water, gas, telephone service, sewerage service and other
utilities furnished to the Premises and shall pay promptly any maintenance
charges therefore. Such payments shall be made directly to the provider of the
utility service if the service is separately metered. If the service is not
separately metered, Tenant shall pay to Landlord directly and as additional
rental the cost of such service, as equitably determined by Landlord based on
the number and nature of other users of the service commonly metered.
11.3 Landlord shall not be liable for any interruption or failure in
utility services arising from any cause whatsoever, unless caused by Landlord's
gross negligence nor shall any such interruption or failure be construed an
eviction of Tenant or work an abatement
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of rent, nor relieve Tenant from fulfillment of any covenant or agreement
hereof, unless caused by Landlord's gross negligence.
ARTICLE 12
Indemnity, Public Liability Insurance and
Fire and Extended Coverage Insurance
12.1 Landlord shall not be liable or responsible to Tenant for any
loss or damage to any property or person occasioned by theft, act of God,
public enemy, injunction, riot, strike, insurrection, war, court order,
requisition or order of governmental body or authority or any similar matter.
Landlords hall not be liable to Tenant, or to Tenant's agents, servants,
employees, customers or invitees and Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all fines, suits, claims, demands,
losses, liabilities, actions and costs (including court costs and attorney's
fees) arising from (a) any injury to person or damage to property caused by any
act, omission or neglect of Tenant, Tenant's agents, servants, employees,
customers or invitees, (b) Tenant's use of the Premises or the conduct of
Tenant's business or profession, (c) any activity, work, or thing done,
permitted or suffered by Tenant in or about the Premises or (d) any breach or
default in the performance of any obligation on Tenant's part to be performed
under the terms of this lease.
12.2 Tenant shall, at its expense, maintain a policy or policies of
comprehensive general liability insurance pertaining to its use and occupancy
of the Premises, with the premiums thereon fully paid in advance, issued by and
binding upon a solvent insurance company licensed to do business in the state
where the Shopping Center is located, such insurance to name Landlord and
Tenant as insureds and to afford minimum protection of not less than One
Million and No/100 Dollars ($1,000,000.00) combined single limit coverage for
bodily injury, death to any one person or property damage in any one
occurrence. Additionally, Tenant shall obtain and maintain during the Lease
Term a contractual liability coverage endorsement with "incidental contract"
coverage including all oral or written contracts relating to the named
insured's business. The adequacy of the coverage afforded by said liability
insurance shall be subject to review by Landlord from time to time, and if
Landlord is advised by Landlord's insurance agent that a prudent businessman in
San Antonio, Texas, operating a business similar to that operated by Tenant
upon the Premises, would increase the limits of said insurance, Tenant shall to
that extent increase the insurance coverage required by this Section 12.2. In
addition to the remedies provided in Article 18 of this lease, if Tenant fails
to maintain the insurance required by this Section 12.2, Landlord may, but is
not obligated to, obtain such insurance and Tenant shall pay to Landlord upon
demand as additional rental the premium cost thereof plus interest at the
lesser of the rate of eighteen percent (18%) per annum or the maximum rate
permitted by law from the date of payment by Landlord until repaid by Tenant.
12.3 Tenant, at Tenant's sole expense, shall obtain and maintain
during the Lease Term fire and extended coverage insurance for full replacement
cost (without deduction for depreciation) upon all improvements and fixtures
situated in the Premises, and upon the contents of the Premises. Tenant
expressly agrees that the proceeds of any such insurance shall be used for the
repair or replacement of the property damaged or destroyed unless this lease
terminates as provided herein.
12.4 Tenant, at Tenant's sole expense, shall obtain and maintain
during the Lease Term business interruption insurance with sufficient coverage
to provide for payment of rent and other fixed costs for at least a six-month
period during which Tenant's business is interrupted.
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12.5 Each party hereto hereby waives any cause of action it might have
against the other party on account of any loss or damage that is insured
against under any insurance policy (to the extent that such loss or damage is
recoverable under such insurance policy) that covers the Shopping Center, the
Premises, Landlord's or Tenant's fixtures, personal property, leasehold
improvements or business and which names Landlord or Tenant, as the case may
be, as a party insured. Each party hereto agrees that it will obtain from its
insurance carrier endorsements to all applicable policies waiving the carrier's
rights of recovery under subrogation or otherwise against the other party.
12.6 All policies of insurance which Tenant is required to maintain
hereunder shall be issued by and binding upon solvent insurance companies
licensed to do business in the state where the Shopping Center is located, such
insurance to name Landlord and Tenant as insureds, and to contain a provision
to the effect that Landlord, although named as an insured, shall nevertheless
be entitled to recovery under said policies for any loss occasioned to
Landlord, its servants, agents and employees by reason of the acts, omissions,
and/or negligence of Tenant. Prior to the Commencement Date, Tenant shall
furnish a certificate or certificates of insurance and such other evidence
satisfactory to Landlord of the maintenance of all insurance coverage required
by this Article 12, and Tenant shall obtain written obligations on the part of
each insurance company to notify Landlord at least thirty (30) days prior to
cancellation or material change of any such insurance. All insurance required
by this Article 12 shall be primary and noncontributing with any insurance
which may be carried by Landlord.
12.7 As a part of the Monthly Payment, Tenant agrees to pay Tenant's
Share of Landlord's cost of carrying fire and extended coverage insurance,
business interruption insurance and general liability insurance (collectively,
"insurance") on the Shopping Center. During each month of the Lease Term,
Tenant shall make a monthly escrow deposit (the "Insurance Escrow Payment")
with Landlord equal to one-twelfth (1/12) of Tenant's Share of the Insurance on
the Shopping Center which will be due and payable for that particular year.
Tenant authorizes Landloard to use the funds deposited by Tenant with Landlord
under this Section 12.7 to pay the cost of the Insurance. Each monthly
Insurance Escrow Payment shall be based upon Tenant's Share of the estimated
Insurance for the year in question, and the monthly Insurance Escrow Payment is
subject to increase or decrease as determined by Landlord to reflect an
accurate monthly escrow of Tenant's Share of the estimated Insurance. The
Insurance Escrow Payment account of Tenant shall be reconciled annually. If
Tenant's total Insurance Escrow Payments are less than Tenant's Share of the
Insurance, Tenant shall pay to Landlord upon demand the difference; if the
total Insurance Escrow Payments of Tenant are more than Tenant's Share of the
Insurance, Landlord shall retain such excess and credit it to Tenant's
Insurance Escrow Payment account. Landlord shall not be responsible for the
payment of interest on Tenant's Insurance Escrow Payment account, nor shall
Landlord be required to keep the funds in such account separate from Landlord's
general funds.
ARTICLE 13
Non-Liability for Certain Damages
13.1 Landlord and Landlord's agents and employees shall not be liable
to Tenant or any other person or entity whomsoever for any injury to persons or
damage to property caused by the Premises or other portions of the Shopping
Center becoming out of repair or by defect in or failure of equipment, pipes or
wiring, or broken glass, or by the backing up of drains, or by gas, water,
steam, electricity or oil leaking, escaping or flowing into the Premises, nor
shall Landlord be liable to Tenant or any other person or entity whomsoever for
any loss or damage that may be occasioned by or through the acts or omissions of
other tenants of the Shopping Center or of any other persons or entities
whomsoever, excepting only the negligence or willful misconduct of duly
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authorized employees and agents of Landlord (unless such negligence or
misconduct is covered by insurance which Tenant is required to provide under
the terms of this lease). With respect to latent or patent defects in the
Premises or in the building of which the Premises forms a part, Landlord's
liability shall not extent beyond one year from the date of substantial
completion of the construction of the Premises, whether or not such defects are
discovered within such one-year period. Tenant shall indemnify and hold
Landlord harmless from any loss, cost, expense or claims arising out of such
injury or damage referred to in this Article 13, cause by Tenant, Tenant's
employees, or patrons.
ARTICLE 14
Damage by Casualty
14.1 Tenant shall give immediate written notice to Landlord of any
damage caused to the Premises by fire or other casualty.
14.2 In the event that the Premises shall be damaged or destroyed by
fire or other casualty and Landlord does not elect to terminate this lease as
hereinafter provided, Landlord shall proceed with reasonable diligence and at
its sole cost and expense to rebuild and repair the Premises, and this lease
shall continue in full force and effect. If the Premises or the portion of the
Shopping Center in which the Premises are located shall (i) be destroyed or
damaged materially by a casualty not covered by Landlord's insurance; or (ii)
be destroyed or rendered untenantable to such an extent that in the opinion of
Landlord the Premises or the Shopping Center cannot economically be rendered
tenantable by a casualty covered by Landlord's insurance, or (iii) be damaged
to such extent that the remaining Lease Term is not sufficient to amortize the
cost of reconstruction, then Landlord may elect either to terminate this lease
as hereinafter provided or to proceed to rebuild and repair the Premises.
Should Landlord elect to terminate this lease it shall give written notice of
such election to Tenant within ninety (90) days after the occurrence of such
casualty, and this lease shall terminate as of the date of such notice. If
Landlord should not elect to terminate this lease, Landlord shall proceed with
reasonable diligence and at its sole cost and expense to rebuild and repair the
Premises; provided, however, that in the event any trustee, beneficiary, secured
party or mortgagee under a deed of trust, security agreement or mortgage on the
Shopping Center should require that the insurance proceeds be used to retire
the mortgage debt, or in the event any lessor under a ground or master lease
affecting the Shopping Center should terminate said lease as a result of any
such casualty, Landlord shall have no obligation to rebuild and this lease
shall terminate upon notice to Tenant.
14.3 Landlord's obligation to rebuild and repair under this Article 14
shall in any event be limited to restoring the Premises to substantially the
condition same were in at the Commencement Date, excluding all signs, fixtures,
equipment or furniture of Tenant and any alterations, additions or
improvements to the Premises made by Tenant, whether prior to or after the
Commencement Date. Tenant agrees that promptly after completion of such work by
Landlord, it will proceed with reasonable diligence and at its sole cost and
expense to rebuild, repair and restore its signs, fixtures, furniture and
equipment and any alterations, additions or improvements to the Premises made
by Tenant.
14.4 Provided that the casualty did not occur by reason of any act of
neglect of Tenant or Tenant's agents, employees or contractors, during the
period from the occurrence of the casualty until Landlord's repairs are
completed, the Rental shall be reduced to such extent as may be fair and
reasonable under the circumstances.
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ARTICLE 15
Eminent Domain
15.1 If all of the Premises should be taken for any public or
quasi-public use under any government law, ordinance or regulation or by right
of eminent domain or by private purchase in lieu thereof, this lease shall
terminate and the rent shall abate during the unexpired portion of this lease,
effective on the date physical possession is taken by the condemning authority.
15.2 If a portion of the Premises should be taken as aforesaid, this
lease shall not terminate; however, the Rental payable hereunder during the
unexpired portion of this lease shall be reduced in proportion to the area
taken, effective on the date physical possession is taken by the condemning
authority, and Tenant's Share shall be recalculated to reflect the useable
and leasable areas of the Premises and the Shopping Center following the
taking. Notwithstanding the foregoing, if after such a partial taking, Tenant
does not have good access to the Premises and to the Common Area, this lease
shall terminate effective on the date physical possession is taken by the
condemning authority, and the rent will abate effective as of the date of
termination. Following such partial taking, but subject to the availability to
Landlord of the proceeds from the award for such taking, Landlord shall make
all necessary repairs or alterations within the scope of Landlord's obligation
as described in Section 14.3 above necessary to make the Premises an
architectural whole.
15.3 If any part of the Common Area shall be taken as aforesaid,
this lease shall not terminate, nor shall the rental payable hereunder be
reduced, except that either Landlord or Tenant may terminate this lease if the
parking areas of the Common Area remaining following such taking plus any
additional parking areas provided by Landlord in reasonable proximity to the
Shopping Center shall be less than sixty percent (60%) of the parking areas of
the Common Area immediately prior to the taking. Any election to terminate this
lease in accordance with this provision shall be evidenced by written notice of
termination delivered to the other party within thirty (30) days after the date
physical possession is taken by the condemning authority.
15.4 All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the Premises or Common Area shall be property
of Landlord, and Tenant hereby assigns its interest in any such award to
Landlord; provided, however, Landlord shall have no interest in any award made
to Tenant for loss of business or for the taking of Tenant's fixtures and other
property if a separate award for such items is made to Tenant.
ARTICLE 16
Assignment and Subletting
16.1 Tenant shall not assign or in any manner transfer this lease or
any estate or interest therein, or sublet the Premises or any part thereof, or
grant any license, concession or other right to occupy any portion of the
Premises without the prior written consent of Landlord which consent shall not
be unreasonably withheld. For purposes of this Section if Tenant is a
corporation, a merger or consolidation of Tenant with any other entity, or a
"Change in Control" of Tenant shall constitute an assignment of this lease. A
"Change in Control" of Tenant shall occur when any person who does not now own
more than fifty percent (50%) of the outstanding voting securities of Tenant or
more than fifty percent (50%) of the outstanding equity securities of Tenant
becomes the owner of more than fifty percent (50%) of the outstanding voting
securities of Tenant or more than fifty percent (50%) of the outstanding equity
securities of Tenant. If Tenant is a general or limited partnership, any
transfer or assignment by a general partner of Tenant of any portion of his
general partnership interest in such partnership shall be deemed an assignment
of this lease in violation of the terms hereof. Notwithstanding
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the foregoing, if Tenant is a corporation, Tenant may assign this Lease or
sublet the Premises for any of the then remaining portion of the unexpired
Lease Term with Landlord's prior consent (which will not be unreasonably
withheld), at any time during the Lease Term,
(a) to any parent, subsidiary or affiliate corporation of
Tenant; or
(b) in the event of a merger or consolidation of Tenant, to the
surviving corporation in connection with such merger or consolidation
of Tenant, or to any of the subsidiaries or parents of such surviving
corporation; or
(c) in the event of a Change in Control of Tenant, to the
purchaser of Tenant upon the sale of capital stock of Tenant;
provided, however, that in any case under either (b) or (c) above:
i. the net assets of the proposed assignee and its
guarantor, if any, shall not be less than the net assets of
Tenant and Guarantor as of the date of this lease;
ii. such assignee shall continue to operate the
business in the Premises in the same manner as
Tenant and pursuant to all of the provisions of this lease;
iii. one or more of the principals of Tenant shall
remain with the operation or persons with similar
competence, expertise, experience and reputation
shall be in control of such assignee; and
iv. the Tenant and Guarantor named in this lease shall
continue to remain liable under this lease for the
performance of all terms, including, but not limited to the
payment of rent and any other sums due under this lease.
16.2 Consent by Landlord to one or more assignments or sublettings
shall not operate as a waiver of Landlord's rights as to any subsequent
assignments or sublettings. Notwithstanding any assignment or subletting,
Tenant and Guarantor shall at all times remain fully responsible and liable for
the payment of the rental herein specified and for compliance with all of
Tenant's other obligations under this lease.
16.3 If Landlord consents to any subletting or assignment by Tenant,
and subsequently any category of rent received by Tenant under any such
sublease is in excess of the same category of rent payable to Landlord under
this lease, or any additional consideration is paid to Tenant by the assignee
under any such assignment, Landlord may, at its option, either (1) declare such
excess rent under any sublease or such additional consideration for any
assignment to be due and payable by Tenant to Landlord as additional rent
hereunder, or (2) cancel this lease and at Landlord's option, enter into a
lease directly with such assignee or subtenant, without liability to Tenant.
16.4 In the event Tenant requests Landlord's consent to an assignment
of this lease or a subletting of the Premises, Landlord shall have the right,
at Landlord's sole option, to terminate this lease as to the Premises (or
portion thereof which Tenant proposes to sublease), and the right to enter into
a lease directly with the proposed assignee of subtenant. Landlord shall have
thirty (30) days after the date Tenant notifies Landlord that Tenant desires to
assign this lease or sublet the Premises to notify Tenant of Landlord's
election to
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terminate, and if applicable, to enter into such a new lease. Tenant shall
cooperate with Landlord to effect any such new lease.
16.5 Landlord shall have the right to transfer and assign, in whole or
in part, all its rights and obligations hereunder and in the Shopping Center
and the Premises, and in such event and upon assumption by the transferee of
Landlord's obligations under this lease (any such transferee to have the
benefit of, and be subject to, the provisions of this lease), no further
liability or obligation shall thereafter accrue against Landlord hereunder, and
Tenant agrees to look solely to such successor in interest of Landlord for
performance of such obligations.
16.6 Tenant shall not mortgage, pledge or otherwise encumber its
interest in this lease or in the Premises.
16.7 Landlord may charge a reasonable fee for processing any request
by Tenant for an assignment or sublease of the Premises. Acceptance of such fee
by Landlord shall not be deemed Landlord's consent to any such action.
16.8 In the event Tenant assigns this lease or sublets the Premises
with Landlord's consent as provided herein, any option then held by Tenant
(such as an option to renew this lease or to expand the size of the Premises)
shall terminate automatically concurrently with the assignment or sublease.
ARTICLE 17
Property Taxes
17.1 Tenant shall be liable for all taxes levied against personal
property and trade fixtures placed by Tenant in the Premises. If any such taxes
are levied against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is increased by
inclusion of personal property and trade fixtures placed by Tenant in the
Premises and Landlord elects to pay the taxes based on such increase, Tenant
shall pay to Landlord upon demand that part of such taxes for which Tenant is
primarily liable hereunder.
17.2 Tenant shall pay Tenant's Share of all taxes, assessments and
governmental charges of any kind and nature whatsoever (collectively referred
to as the "Taxes"), levied or assessed against the Shopping Center, or against
the rental or other sums payable by Tenant to Landlord hereunder, whether
presently being charged or subsequently created. During each month of the Lease
Term, Tenant shall pay to Landlord as a part of the Monthly Payment an amount
(a "Tax Escrow Payment") equal to one-twelfth (1/12) of Tenant's Share of the
Taxes due and payable for that particular year. Tenant authorizes Landlord to
use the funds deposited by it with Landlord under this Section 17.2 to pay the
Taxes. The amount of the initial monthly Tax Escrow Payment will be that amount
set out in the Basic Lease Information. The monthly Tax Escrow Payment is based
upon Tenant's Share of the estimated Taxes for the year in question, and the
monthly Tax Escrow Payment is subject to increase or decrease as determined by
Landlord to reflect an accurate escrow of Tenant's Share of the estimated
Taxes. The Tax Escrow Payment account of Tenant shall be reconciled annually.
If Tenant's total Tax Escrow Payments are less than Tenant's Share of the
actual Taxes, Tenant shall pay to Landlord upon demand the difference. If the
total Tax Escrow Payments of Tenant are more than Tenant's Share of the actual
Taxes, Landlord shall retain such excess and credit it to Tenant's Tax Escrow
Payment account. Landlord shall not be responsible for the payment of interest
on Tenant's Tax Escrow Payment account, nor shall Landlord be required to keep
the funds in such account separate from Landlord's general funds. Landlord may
elect to contest the value of the Shopping Center as assessed by any taxing
authority, and in such event the costs incurred by Landlord in connection with
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such contest shall be included within the term "Taxes" for purposes of this
Section 17.2, and Tenant shall pay Tenant's Share of the cost of such contest.
17.3 If Tenant should fail to pay any taxes, assessments, or
governmental charges required to be paid by Tenant hereunder (including Tenant's
Tax Escrow Payments), in addition to any remedies provided herein, Landlord
may, if Landlord so elects, pay such taxes, assessments, and governmental
charges. Any sums so paid by Landlord shall be deemed to be so much additional
rental owing by Tenant to Landlord and due and payable upon demand as
additional rental plus interest at the lesser of the rate of eighteen percent
(18%) per annum or the highest rate permitted by law from the date of payment
by Landlord until repaid by Tenant.
17.4 If at any time during the Lease Term, the present method of
taxation shall be changed so that in lieu of the whole or any part of the
Taxes, there shall be levied, assessed or imposed on Landlord a capital levy or
other tax directly on the rents received therefrom and/or a franchise tax,
assessment, levy or charge measured by or based, in whole or in part, upon such
rents or the present or any future building or buildings on the Shopping
Center, then all such taxes, assessments, levies or charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"Taxes" for the purposes hereof.
17.5 Any payment to be made pursuant to this Article 17 with respect to
the real estate tax year in which this lease commences or terminates shall bear
the same ratio to the payment which would be required to be made for the full
tax year as that part of such tax year covered by the term of this lease bears
to a full tax year.
ARTICLE 18
Default by Tenant and Remedies
18.1 The following events shall be deemed to be events of default by
Tenant under this lease:
(a) Tenant shall fail to pay when due any installment of rental
or any sum payable by Tenant under this lease.
(b) Tenant shall fail to comply with any other term, provision
or covenant of this lease, and shall not cure such failure within ten (10) days
after written notice thereof to Tenant; provided, however, that if the failure
to cure is of such a nature that it cannot reasonably be cured within said
ten-day period, Tenant shall not be deemed in default so long at Tenant
commences curing such failure within said ten-day period, and diligently
prosecutes same to completion.
(c) Tenant or Guarantor shall become insolvent, or shall make a
transfer in fraud of creditors, or shall make an assignment for the benefit of
creditors.
(d) Tenant or Guarantor shall file a petition under any section
or chapter of any applicable federal or state bankruptcy or insolvency law; or
Tenant or Guarantor shall be adjudged bankrupt or insolvent in proceedings filed
against Tenant or Guarantor; or Tenant or Guarantor shall admit that it cannot
meet it financial obligations as they become due. For additional provisions
regarding the bankruptcy of Tenant see Article 25.
(e) A receiver or trustee shall be appointed for the Premises or
for all or substantially all of the assets of Tenant or Guarantor.
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(f) Tenant shall abandon any portion of the Premises. For
purposes of this lease, Tenant shall be deemed to have abandoned the Premises
if Tenant fails to utilize the Premises for the purpose permitted herein for
ten (10) or more consecutive days.
(g) Tenant shall do or permit to be done anything which creates
a lien upon the Premises. Tenant shall have a reasonable period of time to
dispute an obligation giving rise to a lien after which time if lien is not
remedied Tenant shall be in default.
(h) The business operated by Tenant shall be closed for failure
to pay any state sales tax as required or for any other reason.
18.2 Upon the occurrence of any event of default specified in this
lease, Landlord shall have the option to pursue any and all remedies which
Landlord then may have hereunder or at law or in equity, including, without
limitation, any one or more of the following, in each case, without any notice
or demand whatsoever:
(a) Terminate this lease by notice in writing to Tenant in
which event Tenant shall immediately surrender the Premises to Landlord, and if
Tenant fails to do so, Landlord may, without prejudice to any other remedy
which it may have for possession or arrearage in rent, enter upon and take
possession of the Premises, by any lawful means, including by picking or
changing locks if necessary, and lock out, expel or remove Tenant and any other
person who may be occupying the Premises or any part thereof, without being
liable for prosecution or any claim for damages therefor; and Tenant agrees to
pay to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet the
Premises on satisfactory terms or otherwise, including the following:
(i) the worth at the time of award of any unpaid rent
which had been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by
which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss which Tenant proves could have been reasonably
avoided; plus
(iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the Lease Term after
the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
(iv) any other amount, including court costs, expenses
of repossessing the Premises and expenses of restoring the
Premises to a good condition of repair, necessary to compensate
Landlord for all the detriment proximately caused by Tenant's
failure to perform Tenant's obligations under this lease or
which in the ordinary course of things would be likely to
result therefrom;
(v) at Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted
from time to time by applicable law; and
(vi) all reasonable attorneys' fees incurred by
Landlord relating to the default and termination of this lease
plus interest on all sums due Landlord by Tenant at the highest
rate allowed by law or, if there is no such highest rate, at
five percent (5%) per annum above the rate identified in the
Wall Street Journal under the caption "Money Rates" as the
"prime" or "base" rate on corporate loans at large United
States money center commercial banks.
As used in subparagraphs (i) and (ii) above, the "worth at the
time of award" is to be computed by allowing interest at the highest rate
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allowed by law, or if there is no such highest rate, at the rate
specified in subparagraph (vi) above.
As used in subparagraph (iii) above, the "worth at the time of
award" is to be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of New York at the time of the award
plus one percent (1%).
The term "rent" as used herein shall be deemed to be and to
mean the Rental, the Insurance Escrow Payment, the Tax Escrow Payment,
the Common Area Maintenance Charge and all other sums required to be
paid by Tenant pursuant to the terms of this lease.
(b) Enter upon and take possession of the Premises by any
lawful means, including by picking or changing locks if necessary, and lock
out, expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof without being liable for prosecution or any claim
for damages therefor, and if Landlord so elects, relet all or any part of the
Premises on such terms as Landlord shall deem advisable and receive the rent
therefor, and Tenant agrees to pay to Landlord on demand any deficiency that
may arise by reason of such reletting for the remainder of the Lease Term or
any extension thereof (if the event of default occurs during such extension
term). Tenant shall be liable immediately to Landlord for all costs Landlord
incurs in repossessing and reletting the Premises, including, without
limitation, brokers' commissions, reasonable attorneys' fees incurred in
connection with the reletting and in connection with Tenant's default
hereunder, expenses of repairing, altering and remodeling the Premises required
by the reletting, and like costs. In no event shall Tenant be entitled to
receive any excess in the rental received by Landlord following a reletting
over the amounts owed by Tenant to Landlord hereunder.
(c) Enter upon the Premises by any lawful means, including by
picking or changing locks if necessary, without being liable for prosecution or
any claim for damages therefor, and do whatever Tenant is obligated to do under
the terms of this lease; and Tenant agrees to reimburse Landlord on demand for
any expenses which Landlord may incur in thus affecting compliance with
Tenant's obligations under this lease (including reasonable attorneys' fees),
and Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action.
18.3 No re-entry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this lease, unless a
written notice of such intention be given to Tenant. Notwithstanding any such
reletting or re-entry or taking possession, Landlord may at any time thereafter
elect to terminate this lease for a previous default. Pursuit of any of the
foregoing remedies shall not preclude pursuit of any of the other remedies
herein provided or any other remedies provided by law, nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained.
Landlord's acceptance of rent following an event of default hereunder shall not
be construed as Landlord's waiver of such event of default. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a waiver
of any other violation or default. No payment by Tenant or receipt by Landlord
of any amount less than the amounts due by Tenant hereunder shall be deemed to
be other than on account of the amounts due by Tenant hereunder, nor shall any
endorsement or statement on any check or document accompanying any payment be
deemed an accord and satisfaction.
18.4 In the event of termination or repossession of the Premises for
an event of default, Landlord shall attempt to relet the Premises, or any
portion thereof, or to collect rental after
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reletting; and in the event of reletting, Landlord may relet the whole or any
portion of the Premises for any period, to any tenant, and for any use and
purpose.
18.5 If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Premises for such purpose), and thereupon Tenant shall be obligated to, and
hereby agrees, to pay Landlord, upon demand, all costs, expenses and
disbursements (including reasonable attorneys' fees) incurred by Landlord in
taking such remedial action.
18.6 Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder unless
and until it has failed to perform such obligation within thirty (30) days
after written notice by Tenant to Landlord specifying wherein Landlord has
failed to perform such obligation; provided, however, that if the nature of
Landlord's obligation is such that more than thirty (30) days are required for
its performance, then Landlord shall not be deemed to be in default if it shall
commence such performance within such thirty-day period and thereafter
diligently prosecute the same to completion. Unless and until Landlord fails
to so cure any default after such notice, Tenant shall not have any remedy or
cause of action by reason thereof. To the extent permitted by applicable law,
Tenant hereby waives the provisions of Section 91.004(b) of the Texas Property
Code (or any successor thereto), and any other laws which may grant to Tenant a
lien upon any of Landlord's property or upon any rental due to Landlord). All
obligations of Landlord hereunder will be binding upon Landlord only during the
period of its ownership of the Shopping Center and not thereafter. The term
"Landlord" shall mean only the owner, for the time being, of the Shopping
Center, and in the event of the transfer by such owner of its interest in the
Shopping Center, such owner shall thereupon be released and discharged from all
covenants and obligations of Landlord thereafter accruing, but such covenants
and obligations shall be binding during the Lease Term upon each new owner for
the duration of such owner's ownership. Notwithstanding any other provision
hereof, Landlord shall not have any personal liability hereunder whatsoever for
any damages, consequential or otherwise, and Tenant shall not be entitled to
recover any personal or money judgment against Landlord or any of the persons
comprising Landlord for any reason.
18.7 In the event that Landlord shall have taken possession of the
Premises pursuant to the authority herein granted, then Landlord shall have the
right to keep in place and use all of the furniture, fixtures and equipment at
the Premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by a
lessor thereof or third party having a lien thereon. Landlord shall also have
the right to remove from the Premises (without the necessity of obtaining a
distress warrant, writ of sequestration or other legal process) all or any
portion of such furniture, fixtures, equipment and other property located
thereon and place same in storage at any premises within the County in which
the Premises are located; and in such event, Tenant shall be liable to Landlord
for costs incurred by Landlord in connection with such removal and storage and
shall indemnify and hold Landlord harmless from all loss, damage, cost, expense
and liability in connection with such removal and storage. Landlord shall also
have the right to relinquish possession of all or any portion of such
furniture, fixtures, equipment and other property to any person ("Claimant")
claiming to be entitled to possession thereof who presents to Landlord a copy
of any instrument represented to Landlord by Claimant to have been executed by
Tenant (or any predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or
other property, without the necessity on the part of Landlord to inquire into
the authenticity of said instrument's copy of Tenant's or Tenant's
predecessor's signature thereon and without the necessity of Landlord's making
any nature of
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investigation or inquiry as to the validity of the factual or legal basis upon
which Claimant purports to act; and Tenant agrees to indemnify and hold
Landlord harmless from all cost, expense, loss, damage and liability incident
to Landlord's relinquishment of possession of all or any portion of such
furniture, fixtures, equipment or other property to Claimant. The rights of
Landlord herein stated shall be in addition to any and all other rights which
Landlord has or may hereafter have at law or in equity; and Tenant stipulates
and agrees that the rights herein granted Landlord are commercially reasonable.
18.8 The provisions of this Article 18 shall supersede Section 93.002
of the Texas Property Code (or any successor to such statute).
18.9 If Landlord is obligated to notify Tenant of any failure
(monetary or nonmonetary) to comply with the provisions of this lease, such
obligation shall terminate following the second such notice delivered to Tenant
within any twelve (12) month period during the Lease Term.
ARTICLE 19
Landlord's Lien
19.1 TO SECURE THE PAYMENT OF ALL RENTAL AND OTHER SUMS OF MONEY DUE
AND TO BECOME DUE HEREUNDER AND THE FAITHFUL PERFORMANCE OF THIS LEASE BY
TENANT, TENANT HEREBY GIVES TO LANDLORD AN EXPRESS FIRST AND PRIOR CONTRACT
LIEN AND SECURITY INTEREST ON ALL PROPERTY OF TENANT, INCLUDING BUT NOT LIMITED
TO ALL FIXTURES, MACHINERY, EQUIPMENT, FURNISHINGS, INVENTORY AND OTHER
ARTICLES OF PERSONAL PROPERTY, NOW OR HEREAFTER PLACED IN OR UPON THE PREMISES,
AND ALSO UPON ALL PROCEEDS OF ANY INSURANCE WHICH MAY ACCRUE TO TENANT BY
REASON OF DESTRUCTION OF OR DAMAGE TO ANY SUCH PROPERTY. SUCH PROPERTY SHALL
NOT BE REMOVED THEREFROM WITHOUT THE WRITTEN CONSENT OF LANDLORD UNTIL ALL
RENTAL AND OTHER SUMS OF MONEY THEN DUE TO LANDLORD HEREUNDER SHALL FIRST HAVE
BEEN PAID. ALL EXEMPTION LAWS ARE HEREBY WAIVED IN FAVOR OF SAID LIEN AND
SECURITY INTEREST. THIS LIEN AND SECURITY INTEREST IS GIVEN IN ADDITION TO THE
LANDLORD'S STATUTORY LIEN AND SHALL BE CUMULATIVE THERETO. UPON THE OCCURRENCE
OF AN EVENT OF DEFAULT, THIS LIEN MAY BE FORECLOSED WITH OR WITHOUT COURT
PROCEEDINGS BY PUBLIC OR PRIVATE SALE; PROVIDED, HOWEVER, THAT LANDLORD SHALL
GIVE TENANT AT LEAST FIFTEEN (15) DAYS NOTICE OF THE TIME AND PLACE OF SAID
SALE, AND LANDLORD SHALL HAVE THE RIGHT TO BECOME THE PURCHASER, UPON BEING THE
HIGHEST BIDDER AT SUCH SALE. CONTEMPORANEOUS WITH THE EXECUTION OF THIS LEASE
(AND IF REQUESTED HEREAFTER BY LANDLORD), TENANT SHALL EXECUTE AND DELIVER TO
LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN SUFFICIENT FORM SO
THAT WHEN PROPERLY FILED, THE SECURITY INTEREST HEREBY GIVEN SHALL THEREUPON BE
PERFECTED. LANDLORD MAY FILE A COPY OF THIS LEASE AS A FINANCING STATEMENT.
IF REQUESTED HEREAFTER BY LANDLORD, TENANT SHALL ALSO EXECUTE AND DELIVER TO
LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENT CHANGE INSTRUMENTS IN
SUFFICIENT FORM TO REFLECT ANY PROPER AMENDMENT OR MODIFICATION IN OR EXTENSION
OF THE AFORESAID CONTRACT LIEN AND SECURITY INTEREST HEREBY GRANTED. LANDLORD
SHALL, IN ADDITION TO ALL OF ITS RIGHTS HEREUNDER, ALSO HAVE ALL OF THE RIGHTS
AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM COMMERCIAL CODE AS ADOPTED IN
THE STATE IN WHICH THE PREMISES ARE LOCATED.
ARTICLE 20
Holding Over
20.1 In the event Tenant remains in possession of the Premises after
the expiration of this lease and without the execution of a new lease, it shall
be deemed to be occupying the Premises as a tenant from month to month at a
rental equal to the Rental herein provided plus one hundred percent (100%) of
such amount and otherwise subject to all the conditions, provisions and
obligations of this lease insofar as the same are applicable to a month to
month tenancy.
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ARTICLE 21
Subordination
21.1 This lease and leasehold estate created hereby are and shall be,
at the option and upon written declaration of Landlord, subject, subordinate
and inferior to any deeds of trust, mortgages or other instruments of security,
as well as to any ground leases, master leases or primary leases, that now or
hereafter cover all or any part of the Premises, the Shopping Center, or any
interest of Landlord therein, and to any and all advances made on the security
thereof, and to any and all increases, renewals, modifications, extensions and
replacements thereof. Landlord hereby expressly reserves the right, at its
option and declaration, to place liens, encumbrances, ground leases and master
or primary leases on and against the Premises, the Shopping Center, and/or any
part thereof and/or any interest of Landlord therein, superior in effect to
this lease and the estate created hereby. To further assure the foregoing
subordination, Tenant shall, upon Landlord's request, together with the request
of any mortgagee or beneficiary under any such deed of trust or mortgage, or of
any lessor under any such ground lease, master lease or primary lease, execute
any instrument (including without limitation an amendment to this lease that
does not materially and adversely affect Tenant's rights or duties under this
lease) or instruments intended to subordinate this lease or to evidence the
subordination of this lease to any such mortgage, deed of trust or lease,
Tenant hereby constitutes and appoints Landlord Tenant's attorney-in-fact to
execute any such instrument for and on behalf of Tenant.
21.2 In the event of the enforcement by the trustee or the beneficiary
or mortgage note holder under or with respect to any such mortgage, deed of
trust or other security instrument of the remedies provided for by law or by
such mortgage, deed of trust or other security instrument, Tenant will, upon
request of any person or party succeeding to the interest of Landlord as a
result of such enforcement, attorn to and automatically become the tenant of
such successor in interest without change in the terms or other provisions of
this lease (Tenant hereby waiving any right Tenant may have to terminate this
lease or to surrender possession of the Premises), and this lease shall
continue in full force and effect; provided, however, that such successor in
interest shall not be bound by (i) any payment of rent or additional rent for
more than one month in advance except prepayments in the nature of security for
the performance by Tenant of its obligations under this lease or (ii) any
amendment or modification of this lease made without the written consent of such
trustee, beneficiary, mortgage note holder or successor in interest. Upon
request by such successor in interest, Tenant shall execute and deliver an
instrument confirming the attornment herein provided for.
21.3 In the event of the termination of any ground lease, master lease
or primary lease, the landlord under any of same has the right to terminate
this lease or may elect to continue this lease in full force and effect as a
direct lease between such landlord and Tenant. In the event such landlord
elects to continue this lease, Tenant shall attorn to such landlord (Tenant
hereby waiving any right Tenant may have to terminate this lease or to
surrender possession of the Premises), and this lease shall continue in full
force and effect. Upon the request of such landlord, Tenant shall execute and
deliver to such landlord a recordable instrument of attornment.
21.4 Landlord shall avail itself of the terms of this Article 21 in a
good faith manner and shall not use it for the purpose of attempting to
terminate Tenant's leasehold interest. At Tenant's request, Landlord shall use
reasonable efforts to obtain a nondisturbance agreement from any party to whom
Landlord may in the future give a lien or mortgage upon the Premises, the
Shopping Center and/or any part thereof and/or any interest of Landlord therein.
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
20
<PAGE> 25
21.5 Tenant agrees to furnish from time to time when requested by
Landlord, the holder of any deed of trust, mortgage or other security
instrument, the lessor under any ground lease covering all or any part of the
Shopping Center or the Premises or any interest of Landlord therein or any
prospective purchaser of the Shopping Center, a certificate signed by Tenant
confirming and containing such factual certifications and representations
deemed appropriate by Landlord, the holder of any deed of trust, mortgage or
other security instrument, the lessor under any ground lease covering all or
any part of the Shopping Center or the Premises or any interest of Landlord
therein or any prospective purchaser of the Shopping Center, and Tenant shall,
within ten (10) days following receipt of said proposed certificate from
Landlord, return a fully executed copy of said certificate to Landlord. In the
event Tenant shall fail to return a fully executed copy of such certificate to
Landlord within the foregoing ten-day period, then Tenant shall be deemed to
have approved and confirmed all of the terms, certifications and
representations contained in such certificate.
ARTICLE 22
Notices
22.1 Wherever any notice is required or permitted hereunder, such
notice shall be in writing. Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered whether actually received
or not when deposited in the United States mail, postage prepaid, certified
mail, return receipt requested, addressed to the parties hereto at the
respective addresses set out in the Basic Lease Information, or at such other
addresses as they may have hereafter specified by written notice.
22.2 If and when included within the term "Tenant" as used in this
instrument there are more than one person, firm or corporation, all shall
arrange among themselves for their joint execution of such notices specifying
some individual at some specific address for the receipt of notices and
payments to Tenant. All parties included with term "Tenant" shall be bound by
notices and payments given in accordance with the provisions of this Article to
the same effect as if each had received such notice or payment.
ARTICLE 23
Right of Relocation
21
<PAGE> 26
ARTICLE 24
Bankruptcy or Insolvency
24.1 If a petition is filed by, or an order for relief is entered
against, Tenant under Chapter 7 of the United States Bankruptcy Code (the
"Code") and the trustee of Tenant elects to assume this lease for the purpose
of assigning it, the election or assignment, or both, may be made only if all
of the terms and conditions of Sections 24.2 and 24.3 are satisfied. If the
trustee fails to elect to assume this Lease for the purpose of assigning it
within sixty (60) days after his appointment, this lease will be deemed to have
been rejected. Landlord shall then immediately be entitled to possession of the
Premises without further obligation to Tenant or the trustee, and this lease
will be cancelled. Landlord's right to be compensated for damages in the
bankruptcy proceeding, however, shall survive.
24.2 If Tenant files a petition for reorganization under Chapters 11
or 13 of the Code or a proceeding that is filed by or against Tenant under any
other chapter of the Code is converted to a Chapter 11 or 13 proceeding and
Tenant's trustee or Tenant as a debtor-in-possession fails to assume this lease
within sixty (60) days from the date of the filing of the petition or the
conversion, the trustee or the debtor-in-possession will be deemed to have
rejected this lease. To be effective, an election to assume this lease must be
in writing and addressed to Landlord and, in Landlord's business judgment, all
of the following conditions, which Landlord and Tenant acknowledge to be
commercially reasonable, must have been satisfied:
(a) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined in this section,
that:
(i) The trustee will cure all monetary defaults under
this lease within ten (10) days from the date of the assumption;
and
(ii) The trustee will cure all nonmonetary defaults
under this lease within thirty (30) days from the date of the
assumption.
(b) The trustee or the debtor-in-possession has compensated
Landlord, or has provided to Landlord adequate assurance, as defined in
this section, that within ten (10) days from the date of the assumption
Landlord will be compensated for any pecuniary loss Landlord incurred
arising from the default of Tenant, the trustee, or the
debtor-in-possession as recited in Landlord's written statement of
pecuniary loss sent to the trustee or the debtor-in-possession.
(c) The trustee or the debtor-in-possession has provided
Landlord with adequate assurance of the future performance of each of
Tenant's obligations under this Lease; provided, however, that:
(i) The trustee or debtor-in-possession will also
deposit with Landlord, as security for the timely payment of
rental, an amount equal to three months' Monthly Payment and
other monetary charges accruing under this lease.
22
<PAGE> 27
(ii) From and after the date of the assumption of
this lease, the trustee or debtor-in-possession will pay when
due each Monthly Payment due hereunder.
(iii) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.
(d) Landlord has determined that the assumption of this
lease will not breach any provision in any other lease, mortgage,
financing agreement, or other agreement by which Landlord is bound
relating to the Premises.
(e) For purposes of this Section, "adequate assurance"
means that:
(i) Landlord will determine that the trustee or the
debtor-in-possession has, and will continue to have, sufficient
unencumbered assets after the payment of all secured obligations
and administrative expenses to assure Landlord that the trustee
or the debtor-in-possession will have sufficient funds to
fulfill Tenant's obligations under this lease and to keep the
Premises stocked with merchandise and properly staffed with
sufficient employees to conduct a fully operational, actively
promoted business on the Premises; and
(ii) An order will have been entered segregating
sufficient cash payable to Landlord and/or a valid and perfected
first lien and security interest will have been granted in
property of Tenant, trustee, or debtor-in-possession that is
acceptable for value and kind to Landlord, to secure to Landlord
the obligation of the trustee or debtor-in-possession to cure
the monetary or nonmonetary defaults under this lease within the
time periods set forth above.
24.3 In the event that this lease is assumed by a trustee appointed
for Tenant or by Tenant as debtor-in-possession under the provisions of Section
24.2 and, thereafter, Tenant is either adjudicated a bankrupt or files a
subsequent petition for arrangement under Chapter 11 of the Code, then Landlord
may terminate, at its option, this lease and all Tenant's rights under it, by
giving written notice of Landlord's election to terminate.
24.4 If the trustee or the debtor-in-possession has assumed this
lease, under the terms of Sections 24.1 or 24.2, to assign or to elect to
assign Tenant's interest under this lease or the estate created by that
interest to any other person, that interest or estate may be assigned only if
Landlord acknowledges in writing that the intended assignee has provided
adequate assurance, as defined in this Section 24.4, of future performance of
all of the terms, covenants, and conditions of this lease to be performed by
Tenant.
For the purposes of this Section, adequate assurance of future
performance means that Landlord has ascertained that each of the following
conditions have been satisfied:
(a) The assignee has submitted a current financial
statement, audited by a certified public accountant, that shows a net
worth and working capital in amounts determined by Landlord to be
sufficient to assure the future performance by the assignee of Tenant's
obligation under this lease;
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
23
<PAGE> 28
(b) If requested by Landlord, the assignee will obtain
guarantees, in form and substance satisfactory to Landlord, from one or
more persons who satisfy Landlord's standards of creditworthiness; and
(c) Landlord has obtained all contents or waivers from any
third party required under any lease, mortgage, financing arrangement,
or other agreement by which Landlord is bound, to enable Landlord to
permit the assignment.
24.5 When, pursuant to the Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy charges
for the use of all or part of the Premises, the charges will not be less than
the Monthly Payment then required to be paid by Tenant hereunder.
24.6 Neither Tenant's interest in this lease nor any estate of
Tenant created in this lease will pass to any trustee, receiver, or assignee
for the benefit of creditors, or any other person or entity, or otherwise by
operation of law under the laws of any state having jurisdiction of the person
or property of Tenant, unless Landlord consents in writing to this transfer.
Landlord's acceptance of rental or any other payments from any trustee,
receiver, assignee, person, or other entity will not be deemed to have waived,
or waive, the need to obtain Landlord's consent or Landlord's right to
terminate this lease for any transfer of Tenant's interest under this lease
without that consent.
ARTICLE 25
Miscellaneous
25.1 Nothing herein contained shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between parties
hereof, it being understood and agreed that neither the method of computation
of rental, nor any other provisions contained herein, nor any acts of the
parties hereto, shall be deemed to create any relationship between the parties
hereto other than the relationship of Landlord and Tenant. Whenever herein the
singular number is used, the same shall include the plural, and words of any
gender shall include each other gender.
25.2 The captions used herein are for convenience only and do not
limit or amplify the provisions hereof.
25.3 One or more waivers of any covenant, term or condition of this
lease by either party shall not be construed as a waiver of a subsequent breach
of the same covenant, term or condition. The consent or approval by either
party shall not be construed as a waiver of a subsequent breach of the same
covenant, term or condition. The consent or approval by either party to or of
any act by the other party requiring such consent or approval shall not be
deemed to waive or render unnecessary consent to or approval of any subsequent
similar act.
25.4 Whenever a period of time is herein prescribed for action to be
taken by Landlord, Landlord shall not be liable or responsible for and there
shall be excluded from the computation of any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other causes of any kind
whatsoever which are beyond the reasonable control of Landlord. At any time when
there is outstanding a mortgage, deed of trust or similar security instrument
covering Landlord's interest in the Premises, and Tenant is given written
notice thereof, including the address of the holder of the indebtedness secured
thereby, Tenant may not exercise any remedies for default by Landlord hereunder
unless and until the holder of the indebtedness secured by such
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
24
<PAGE> 29
mortgage, deed of trust or similar security instrument shall have received
written notice of such default and a reasonable time for during such default
shall thereafter have elapsed.
25.5 Tenant shall peaceably and quietly hold and enjoy the Premises for
the Lease Term, without hindrance from Landlord or Landlord's successors or
assigns subject to (i) the terms and conditions of this lease, including the
performance by Tenant of all of the terms and conditions of this lease to be
performed by Tenant, including the payment of rent and other amounts due
hereunder, and (ii) actions and claims of any person or entity holding superior
title to that of Landlord, including, but not by way of limitation, any person
or entity who holds an interest in the Premises to which the leasehold
interests created by this lease is subordinate.
25.6 This lease contains the entire agreement between the parties, and
no agreement shall be effective to change, modify or terminate this lease in
whole or in part unless such agreement is in writing and duly signed by the
party against whom enforcement of such change, modification or termination is
sought.
25.7 Tenant warrants that it has had no dealing with any broker or
agent in connection with the negotiation or execution of this lease other than
Landlord's broker, if any. In the event any agent or broker other than
Landlord's broker, if any, shall make a claim for a commission or fee, Tenant
shall be responsible for payment thereof and hereby indemnifies and holds
Landlord harmless from such claim for commission or fees.
25.8 If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the Lease Term, then
and in that event, it is the intention of the parties hereto that the remainder
of this lease shall not be affected thereby, and it is also the intention of
the parties to this lease that in lieu of each clause or provision of this lease
that is illegal, invalid or unenforceable, there be added as a part of this
lease a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
25.9 The terms, provisions and covenants contained in this lease shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors in interest and legal representatives except as
otherwise herein expressly provided.
25.10 In order to induce Landlord to execute this lease, Tenant agrees
that Landlord may, at its option, at the time of the execution of this lease or
at any time during the term hereof, require a guaranty of the obligations of
Tenant hereunder by Guarantors, which guaranty shall be in the form attached
hereto as Exhibit E.
25.11 Notwithstanding anything contained in this lease to the contrary,
Landlord does not warrant or represent that the Premises contains any
particular number of square feet, and the Rental specified in this lease shall
not vary based upon the actual number of square feet contained in the Premises.
25.12 Landlord reserves the right to change the name of the Shopping
Center.
25.13 In the event that any action or proceeding is brought to enforce
any term, covenant or condition of this lease on the part of Landlord or
Tenant, the prevailing party in such action or proceeding shall be entitled to
reasonable attorney's fees to be fixed by the court in such action or
proceeding.
25.14 The submission of this lease to Tenant for examination does not
constitute an offer, reservation or option in favor of Tenant, and Tenant shall
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
25
<PAGE> 30
have no rights with respect to this lease or the Premises unless and until
Landlord shall execute a copy of this lease and deliver the same to Tenant.
25.15 This lease shall be subject to any and all easements,
rights-of-way, covenants, liens, conditions, restrictions, outstanding mineral
interest and royalty interests, if any, relating to the Premises, to the extent,
and only to the extent, same still may be in force and effect and either shown
of record in the Office of the County Clerk of Bexar County, Texas or apparent
on the Premises.
25.16 This lease has been executed in the State of Texas and shall be
governed in all respects by the laws of the State of Texas. It is the intent of
Landlord and Tenant to conform strictly to all applicable state and federal
usury laws. All agreements between Landlord and Tenant, whether now existing or
hereafter arising and whether written or oral, are hereby expressly limited so
that in no contingency or event whatsoever shall the amount contracted for,
charged or received by Landlord for the use, forbearance or detention of money
hereunder exceed the maximum amount which Landlord is legally entitled to
contract for, charge or collect under applicable state or federal law. If, from
any circumstance whatsoever, fulfillment of any provision hereof at the time
performance of such provision shall be due shall involve transcending the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
automatically reduced to the limit of such validity, and if from any such
circumstance, Landlord shall ever receive as interest or otherwise an amount in
excess of the maximum that can be legally collected, then such amount which
would be excessive interest shall be applied to the reduction of the rental due
hereunder; and if such amount which would be excessive interest exceed the
rental due hereunder, then such additional amount shall be refunded to Tenant.
25.17 Tenant shall not bring or permit to remain on the Premises any
asbestos, petroleum or petroleum products, explosives, toxic materials, or
substances defined as hazardous wastes, hazardous materials, or hazardous
substances under any federal, state, or local law or regulation ("Hazardous
Materials"), except ordinary products commonly used in connection with the
Permitted Use and stored in the usual manner and quantities. Tenant's violation
of the foregoing prohibition shall constitute a material breach and default
hereunder and Tenant shall indemnify, hold harmless and defend Landlord from
and against any claims, damages, penalties, liabilities, and costs (including
reasonable attorneys' fees and court costs) caused by or arising out of (i) a
violation of the foregoing prohibition or (ii) the presence or any release of
any Hazardous Materials on, under, or about the Premises during Tenant's
occupancy or control of the Premises. Tenant shall clean up, remove, remedied
and repair any soil or ground water contamination and damage caused by the
presence and any release of any Hazardous Materials in, on, under, or about the
Premises during Tenant's occupancy of the Premises in conformance with the
requirements of applicable law. Tenant shall immediately give Landlord written
notice of any suspected breach of this Section, upon learning of the presence
or any release of any Hazardous Materials, and upon receiving any notices from
governmental agencies pertaining to Hazardous Materials which may affect the
Premises. The obligations of Tenant hereunder shall survive the expiration or
earlier termination, for any reason, of this lease.
25.18 TENANT HEREBY REPRESENTS AND WARRANTS THAT (i) TENANT IS NOT IN
A SIGNIFICANTLY DISPARATE BARGAINING POSITION WITH LANDLORD; (ii) TENANT IS
REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
BY THIS LEASE (AND TENANT'S LEGAL COUNSEL EXECUTES THIS LEASE TO CONFIRM SUCH
REPRESENTATION) AND (iii) THE PREMISES WHICH IS THE SUBJECT OF THIS LEASE IS
NOT A FAMILY RESIDENCE OCCUPIED OR TO BE OCCUPIED AS TENANT'S RESIDENCE, AND
TENANT HEREBY WAIVES ANY CLAIM IT MAY NOW HAVE OR WHICH ARISES IN THE FUTURE
AGAINST LANDLORD, AND LANDLORD'S EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS
AND ASSIGNS UNDER THE PROVISIONS OF THE TEXAS BUSINESS AND COMMERCE CODE SECTION
17.41, ET. SEQ., OTHER THAN SECTION 17.555, WHICH RELATES, IN WHOLE OR
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
26
<PAGE> 31
IN PART, TO THIS LEASE, THE PREMISES THAT IS THE SUBJECT OF THIS LEASE, OR ANY
TRANSACTION BETWEEN THE PARTIES HERETO RELATING TO OR ARISING OUT OF THIS
LEASE.
25.19 Tenant shall not file this lease, or a memorandum hereof, in the
real property records of the county in which the shopping center is located
without the prior written consent of Landlord.
25.20 Landlord and Tenant acknowledge that during the term of this
lease, the Americans With Disabilities Act, 42 U.S.C.A. Section 12101 et seq.
(the "Act"), may require modifications to the Premises and to the Common Area.
With respect to the Act, Landlord and Tenant agree as follows:
(a) Tenant shall notify Landlord in the event that the Act requires
any alterations or modifications to the Premises in order to accommodate any
employee of Tenant or any applicant for employment with Tenant or by reason of
any proposed alterations or modifications to the Premises or for any other
reason. Tenant shall be responsible for, and expressly agrees to pay (or
reimburse Landlord) for the cost of any such alterations and modifications. All
alterations and modifications to the Premises shall be done in a good and
workmanlike manner and in accordance with the provisions of Article 8 above,
and with plans and specifications approved in writing by Landlord.
(b) Landlord shall make all modifications to the Common Area required
in order to bring said Common Area in compliance with the Act, as same may be
modified from time to time. The cost of such modifications shall be amortized
upon such reasonable basis as Landlord may elect, and Tenant shall pay Tenant's
proportionate share of such cost as a portion of the Common Area Maintenance
Charge.
(c) Tenant agrees to indemnify and hold harmless Landlord from and
against any and all fines, suits, claims, demands, losses and actions (including
attorneys' fees and costs and court costs) arising out of or related to
Tenant's failure to perform any of its obligations under this Section 25.20.
ARTICLE 26
Exhibits and Attachments
26.1 All exhibits and attachments, riders and addenda referred to in
this lease or in the Basic Lease Information and the exhibits listed
hereinbelow and attached hereto are incorporated into this lease and made a part
hereof for all intents and purposes as if fully set out herein. All capitalized
terms used in such documents shall, unless otherwise defined therein, have the
same meanings as are set forth herein.
Exhibit A - Plan of Shopping Center
Exhibit B - Legal Description of Shopping Center
Exhibit C - Confirmation of Commencement Date
Exhibit D - Leasehold Improvements
Exhibit E - Lease Guaranty
Exhibit F - Renewal Option
Exhibit G - Sign Criteria
Exhibit H -
Landlord: [SIGNATURE]
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Tenant: [SIGNATURE]
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27
<PAGE> 32
Executed on the dates set forth below,
LANDLORD:
Murray Income Properties I, LTD.
By: Murray Realty Investors VIII, Inc.
Date: 8-1-95 By: /s/ Brent Buck
------------------------------ ------------------------------------
Brent Buck, Executive Vice President
TENANT: Brent Buck
Razmiko's Ltd by Gastronome, Inc., the GP
----------------------------------------------------
Date: 7-28-95 By: /s/ Wm. R. Mallory, Jr.
------------------------------ ------------------------------------
Name: Wm. R. Mallory, Jr.
----------------------
Title: Pres.
----------------------
William R. Mallory, Jr.
<PAGE> 33
EXHIBIT A
CASTLE OAKS VILLAGE
[GRAPHICS OF CASTLE OAKS VILLAGE]
<PAGE> 34
EXHIBIT "B"
Lot 15 Castle Mills City Block 219
Castle Mills, Bexar County, Texas
[DIAGRAM]
Tract I (Fee Estate)
Field notes of a 3.138 acre tract of land or 136691 square feet, situated in
the City of Castle Hills, Dexter County, Texas, being Lot 15, Castle Hills City
Block 219, County Block 5778, Slimp Subdivision, Plot recorded in Volume 9505
Page 30, Plot Records of Bexar County, Texas, and being more particularly
described by meter and bounds as follows:
Beginning at an iron pin, set at the beginning of a curve in the southwest
right-of-way line of Lockhill-Selma Road at its intersection with the
north-west right-of-way line of West Avenue.
Thence Southerly along the arc of said curve to the right having a radius of
15,00 and a central angle of 89 degrees 45 minutes 35 seconds, a distance of
23.50 feet to an iron pin set for the end of said curve in the northwest
right-of-way line of West Avenue.
Thence 5.41 degrees 34 minutes 10 seconds W. 332.40 feet along the northwest
right-of-way line of West Avenue to an iron pin set at the beginning of a curve,
being the East corner of Lot 16 and the south corner of Lot 15.
Thence Westerly along the arc of said curve to the right having a radius of
14.25 feet and a central angle of 35 degrees 37 minutes 01 seconds, a distance
of 8.86 feet to an iron pin set for the end of said curve.
Thence N 48 degrees 11 degrees 25 minutes W. 382.38 feet along the southwest
line of Lot 15 and the northeast line of Lot 16 to an iron pin found for the
west corner of Lot 15 and the south corner of Lot 14.
Thence N 41 degrees 34 minutes 10 seconds W. 350.00 feet with fence along the
northwest line of Lot 15 and the southeast line of Lot 14, to an iron pin found
in the southwest right-of-way line of Lickhill-Selma Road for the north corner
of Lot 15 and the east corner of Lot 14.
Thence N 48 degrees 11 minutes 25 seconds E, 375.76 feet along the southwest
right-of-way line of Lockhill-Selma Road to the place of beginning and
containing 3/138 acres of land or 136691 square feet.
<PAGE> 35
EXHIBIT C
(Confirmation)
CONFIRMATION OF COMMENCEMENT DATE
THIS CONFIRMATION, made and agreed upon this___________ day of
____________, 19____, by and between Murray Income Properties I, LTD)
("Landlord") and Razmiko's ("Tenant");
W I T N E S S E T H
- - - - - - - - - -
Landlord and Tenant entered into a certain lease (the "Lease") dated
_________________, covering Suite 124 of Castle Oaks Village Shopping Center, as
more particularly decribed in the Lease.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby
mutually agree as follows:
(a) For the purpose of confirming the establishment of the Commencement
Date, as required by the provisions of Section 2.1 of the Lease, Landlord and
Tenant hereby agree that:
(i) The date of __________________ is hereby established as the
"Commencement Date" referred to in the Lease; and
(ii) The date of _________________ is hereby established as the
"Expiration Date" of the original term of the Lease.
(b) Tenant hereby confirms the following:
(i) That is has accepted possession of the Premises pursuant to the
terms of the Lease;
(ii) That the improvements and space required to be furnished by
Landlord according to the Lease have been completed;
(iii) that Landlord has fulfilled all of its duties of an inducement
nature;
(iv) That the Lease has not been modified, altered or amended except
as follows:_________________________________________________________
____________________________________________________________________
(v) That there are no off-sets or credits against rentals, nor have
any security deposits been paid except as set forth in the Lease;
(vi) That the Monthly Payment commences to accrue on the ___________
day of _________________________, 19____; and
(vii) That the Lease is in full force and effect.
(c) This Confirmation, and each and all of the provisions hereof shall
insure to the benefit, or bind, as the case may require, the parties hereto and
their respective heirs, successors and assigns.
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
<PAGE> 36
"AS IS"
EXHIBIT D
(Leasehold Improvements)
TENANT ACKNOWLEDGES AND AGREES THAT LANDLORD HAS MADE NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED (EXPRESSLY INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE) AS TO THE
CONDITION OF THE PREMISES OR THE SHOPPING CENTER OR WITH RESPECT TO THE
SUITABILITY OF EITHER FOR THE PURPOSE HEREIN INTENDED. BY EXECUTING THIS LEASE
TENANT SHALL BE DEEMED TO HAVE ACCEPTED SAME IN THEIR PRESENT "AS IS" CONDITION
AND AS SUITABLE FOR THE PURPOSE HEREIN INTENDED. IN THIS REGARD, TENANT
EXPRESSLY ACKNOWLEDGES THAT TENANT HAS BEEN PROVIDED AN ADEQUATE OPPORTUNITY TO
INSPECT THE PREMISES AND THE SHOPPING CENTER, AND THAT TENANT HAS INSPECTED THE
PREMISES AND THE SHOPPING CENTER TO TENANT'S SATISFACTION.
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
<PAGE> 37
Landlord:
----------
Tenant:
----------
EXHIBIT E
(Guaranty Agreement)
GUARANTY AGREEMENT
As an inducement to Murray Income Properties I, LTD. ("Landlord"), to
execute that certain Lease (the "Lease"), between Landlord and William R.
Mallory, Jr. ("Tenant"), dated 7-28-95, of premises described as Suite 124,
Castle Oaks Village Shopping Center, San Antonio, Bexar County, Texas, the
undersigned ("Guarantors"), covenant and agree with Landlord as follows:
(a) Guarantors, jointly and severally, guarantee payments of any
amounts due under the Lease terms, limited only as follows: payment by the
Guarantors to the Landlord is hereby limited to $67,950.00.
(b) This Guaranty is a continuing and irrevocable guaranty, and is a
guaranty of payment (and not merely a guaranty of collection) with respect to
any amounts due. Landlord may pursue any of Guarantors without first proceeding
against Tenant, any other of Guarantors or any collateral, or exhausting any
other remedies.
(c) The obligation of Guarantors to Landlord under this Guaranty is
direct and primary and joint and several with Tenant, and is not limited to
that of a surety or indemnitor.
(d) Upon the occurrence of any event which with the passage of time or
the giving of notice would constitute any event which with the passage of time
or the giving of notice would constitute an event of default by Tenant under
the lease, Landlord may so notify Guarantors, and permit Guarantor's ten (10)
days in which to cause Tenant to comply with the provisions of this Lease. If
Tenant does not so comply within said ten-day period, Landlord may proceed
directly against Guarantors without any further notice to Guarantors. Notice to
Guarantors shall be given in the same manner and at the same place that notices
are required to be given to Tenant under the Lease.
(e) The obligation of Guarantors to Landlord shall continue
notwithstanding any extension of credit or other indulgence allowed Tenant by
Landlord, and not withstanding any amendment of or alternation to any of the
terms, conditions or provisions of the Lease, or any assignment or subletting
by Tenant, whether or not consented to by Landlord of any remedy permitted by
the provisions of the Lease, or any release of Tenant from all or part of
Tenant's obligations under the Lease.
(f) The rights of Landlord under this Guaranty are assignable and
shall follow any transfer by Landlord of its interest in the Lease.
(g) In the event of the death of any individual Guarantor, the
obligations of such Guarantor under this Guaranty shall continue in full force
and effect against such Guarantor's estate, heirs, devisees or assigns.
(h) Guarantors agree to pay and discharge all reasonable costs,
attorney's fees and expenses which may be incurred or paid by Landlord in
enforcing the covenants and agreements of the Lease or of this Guaranty.
(i) This Guaranty shall be binding upon Guarantors and their
successors and assigns, and shall inure to the benefit of Landlord and its
successors and assigns.
(j) Guarantors hereby constitute Tenant their designated agent for the
purpose of accepting service of process, and agree that the venue of any such
legal action brought by Landlord shall be in the County of Bexar, State of
Texas.
Landlord: [SIGNATURE]
-----------------------
Tenant: [SIGNATURE]
-----------------------
<PAGE> 38
(k) This Guaranty shall be construed under the laws of the State of
Texas.
(l) Reference to any of the parties in the singular shall include the
plural and the plural shall include the singular. All obligations of the
Guarantors, where more than one, shall be joint and several.
(m) Guarantors are individuals and Guarantors' names stated below are
not assumed names unless expressly so stated.
IN WITNESS WHEREOF, Guarantors have caused this agreement to be executed
on this 31 day of July, 1995.
Address: By: /s/ Wm. R. Mallory, Jr.
-------------------------------- -------------------------------
Address: By:
-------------------------------- -------------------------------
THE STATE OF TEXAS
COUNTY OF BEXAR
This instrument was acknowledged before me on July 31, 1995 by Jennifer
L. Hampton.
--------------------------------------
NOTARY PUBLIC, State of Texas
My Commission Expires:
Print Name: /s/ Jennifer L. Hampton
April 4, 1998 --------------------------
[SEAL]
THE STATE OF TEXAS
COUNTY OF__________
This instrument was acknowledged before me on ____________________, 199
by ______________________________.
--------------------------------------
NOTARY PUBLIC, State of Texas
My Commission Expires:
Print Name: __________________________
__________________________
Landlord: [SIGNATURE]
--------------
Tenant: [SIGNATURE]
--------------
<PAGE> 39
"RENTAL BASED ON FAIR RENTAL VALUE"
EXHIBIT F
(Renewal Option(s))
Tenant shall have and is hereby granted, the option to renew and extend
the term of this lease for One (1) period(s) of Five (5) year(s) (each),
provided Tenant is not in default hereunder at the time each such option is
exercised. Each extension term shall begin on the expiration of the Lease Term
or the current extension term of this lease, as appropriate. All terms,
covenants, and provisions of this lease (except for the Rental) shall apply to
each such extension term. If Tenant shall elect to exercise any such option,
Tenant shall do so by written notice to Landlord not later than one hundred
eighty (180) days prior to the expiration of the Lease Term or the current
extension term of this lease, as appropriate. The monthly Rental for each such
extension term shall be equal to the fair rental value of the Premises as
mutually agreed by Landlord and Tenant. In the event Landlord and Tenant fail
to agree on the fair rental value of the Premises on or before ninety (90) days
prior to the expiration of the Lease Term or the current extension term of this
lease, as appropriate, this lease shall automatically terminate and Tenant's
exercise of such renewal option shall be null and void. Notwithstanding
anything to the contrary contained in this Exhibit F, in no event shall the
monthly Rental for any year of any extension term of this lease be less than
the monthly Rental that was in effect as of the exercise of the option to
extend.
Landlord: [SIGNATURE]
-----------
Tenant: [SIGNATURE]
-----------
<PAGE> 40
CASTLE HILLS SHOPPING CENTER
EXHIBIT "G" SHOPPING CENTER LEASE
SIGN CRITERIA
This Exhibit "G" is attached to the annexed and foregoing Shopping Center
Lease (the "Lease") pursuant to Section 10.1 of the Lease. Landlord has
established the following sign criteria to assure a quality Shopping Center and
will require any nonconforming signs to be brought into conformance at Tenant's
cost.
GENERAL REQUIREMENTS
A. Tenant shall submit to Landlord for written approval before fabrication
at least three (3) copies of detailed drawings indicating the location, size,
layout, design, materials and color of the proposed sign, including all
lettering and/or graphics.
B. Tenant shall obtain and pay for all permits, approvals, installation and
maintenance.
C. Tenant shall be responsible for the fulfillment of all requirements of
these sign criteria.
D. Tenant shall be fully responsible for the conduct and operations of its
sign contractor. In addition, prior to commencement of any work at the Demised
Premises, Tenant will obtain from its sign contractor and furnish to Landlord
certificates of insurance covering such sign contractor in such amounts and
types as may be specified by Landlord, including, but not limited to, complete
products coverage.
LOCATION AND PLACEMENT REQUIREMENTS
A. Sign on the exterior of the building shall be permitted only for those
tenants having an exterior public entrance and shall be located within the sign
areas designated by the Landlord.
B. No signs perpendicular to the face of the building or store front will
be permitted without prior written approval of the Landlord.
DESIGN REQUIREMENTS
A. All copy must be limited to the store name. No listing of merchandise or
service shall be permitted unless the same is part of Tenant's trade name or
insignia.
B. The maximum length of Tenant's sign shall not exceed seventy percent
(70%) of the sign ban width.
C. Overall maximum letter height:
1. Up to 30' Storefront -- Capitals 18"
2. 30' to 60' Storefront -- Capitals 24"
D. Aluminum channel letters with 02146 Ivory plastic faces and dark bronze
returns of anodized or baked on enamel finish, 5" deep using 1 or 2 types of
neon tubing powered by 30 N/A transformers.
E. Signs shall be composed of individual lettering mounted on a wiring bar
(raceway) painted to match sign ban area. Sign boxes and cans will not be
permitted.
F. Retainers used at the perimeter of sign letter faces shall be 1" dark
bronze Jewelite.
G. Signs shall be limited to one line of copy.
H. The following are NOT PERMITTED, unless approved by Landlord:
1. Animated, flashing or audible signs.
[SIGNATURES]
-------------------------------
<PAGE> 41
2. Exposed lamps or neon tubing.
3. Exposed crossovers, conduits, conductors, transformers, wiring
or cabinets.
4. Painted lettering.
5. Pylon or pole signs (except for shopping center identification
sign or signs, at Landlord's discretion).
6. Portable trailer signs and/or any other types of temporary signs.
I. All cabinets, conductor, transformers and other equipment shall be
concealed in location specified by Landlord.
CONSTRUCTION REQUIREMENTS
A. All signs and their installation shall comply with all local
building and electrical codes.
B. All signs, bolts, fastenings and clips shall be of a non-corrosive
metal or equivalent approved by Landlord. No black iron materials of any type
will be permitted.
C. All letters shall be fabricated using full-welded construction or
equivalent approved by Landlord.
D. Location of all openings for conduit in sign panels of building
walls shall be indicated by the sign contractor on drawings submitted to the
Landlord.
E. All penetrations of the building structure required for sign
installation shall be neatly sealed in a water-tight condition.
F. No labels will be permitted on the exposed surface of signs except
those required by local ordinances which shall be applied in an inconspicuous
location.
G. Tenant will repair or cause its sign contractor to repair any
damage to the building caused by the installation of Tenant's signs.
II. Electrical service to all signs shall be on Tenant's meter.
MISCELLANEOUS REQUIREMENTS
A. Tenant will be permitted to place upon each entrance of the Demised
Premises one (1) 8 inch x 12 inch sign with location, colors and design
approved by Landlord, indicating hours of business, emergency telephone
numbers, etc.
B. Any non-customer door for receiving of merchandise may have one (1)
6 inch x 12 inch sign with location, colors and design approved by Landlord,
indicating the Tenant's name and address. Where more than one tenant used the
same door, each name and address may be applied.
C. Tenant may install on the store front, if required by the U.S.
Postal Service, the numbers only for the street address in exact location
stipulated by the Landlord.
D. Floor signs, such as inserts in terazzo, etc. may be installed
within the Tenant's lease line in its store front, if approved in writing by
the Landlord.
E. Except as provided herein, no advertising placards, banners,
pennants, names, insignia, trademarks or other descriptive material shall be
affixed or maintained upon the glass panes and supports of the show windows and
doors or upon the exterior walls of the building or store front or upon the
common areas of the Shopping Center.
F. A minimum of 2100 square feet of store area must be leased before
space will be made available on any sign advertising the Shopping Center, but
unless otherwise expressly provided in the Lease, no representation or
agreement is made by Landlord as to the availability of space on any such sign.
If space is made available to Tenant on any such sign, the position of Tenant's
sign will be determined by Landlord, in Landlord's sole discretion.
[SIGNATURES]
-------------------------------
2
<PAGE> 42
G. Should Landlord so require, Tenant shall cause its sign to be placed
on any pylon sign advertising the Shopping Center. If Tenant's sign is placed on
any such pylon, Tenant covenants and agrees to pay, as additional rent under
lease, a pro-rata share of the cost of erection, operation, maintenance, repair
and insurance of such pylon sign, such pro-rata share to be based upon the
ration that the number of square feet of surface area of Tenant's sign bears to
the total number of square feet of surface area of all tenants, signs on such
pylon.
[SIGNATURES]
-------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM (A) MURRAY
INCOME PROPERTIES I, LTD. AND CONSOLIDATED JOINT VENTURE BALANCE SHEET AND
STATEMENT OF EARNINGS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH (B)
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1995.
</LEGEND>
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<CASH> 1,325,197
<SECURITIES> 0
<RECEIVABLES> 710,989
<ALLOWANCES> 21,758
<INVENTORY> 0
<CURRENT-ASSETS> 2,014,428
<PP&E> 26,401,213
<DEPRECIATION> 8,079,281
<TOTAL-ASSETS> 20,598,892
<CURRENT-LIABILITIES> 219,518
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 18,635,577
<TOTAL-LIABILITY-AND-EQUITY> 20,598,892
<SALES> 0
<TOTAL-REVENUES> 2,846,710
<CGS> 0
<TOTAL-COSTS> 1,654,524
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 5,554
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 802,812
<INCOME-TAX> 0
<INCOME-CONTINUING> 802,812
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 802,812
<EPS-PRIMARY> 27.87
<EPS-DILUTED> 27.87
</TABLE>
<PAGE> 1
In the event that the General Partners decide to honor a request, they
will notify the requesting Limited Partner in writing of such fact and will
forward to such Limited Partner the documents necessary to effect such
repurchase within 60 days following the receipt of the request by the General
Partners. The purchase price will be equal to 90% of the estimated fair value
of the Interests to be repurchased, as determined by the General Partners by
using such methods of valuation as they deem appropriate. The General Partners
may consider, among other criteria, the current market value of the
Partnership's properties and other assets, less all outstanding Partnership
debts and obligations. The General Partners will, as soon as possible following
return of such documents from the Limited Partner, repurchase the Interests of
the Limited Partner, provided that (i) sufficient amounts are then available in
the Repurchase Fund to repurchase all of such Interests and (ii) such documents
are returned by the end of the fiscal quarter in which the Limited Partner's
request was received by the General Partners ("current quarter"). In the event
that items (i) or (ii) above are not met, the General Partners may repurchase a
portion of such Interests or defer the repurchase of all such Interests. If the
General Partners determine to defer all or a portion of the repurchase of
certain Interests, the Limited Partners will be deemed to have priority over
subsequent requests for repurchases.
Special Power of Attorney
Under the Partnership Agreement and Subscription Agreement, each
Limited Partner irrevocably appoints the General Partners his attorney-in-fact
to make, execute, sign, acknowledge, swear to, deliver, record and file any
document or instrument which may be considered necessary or desirable by the
General Partners executing the same to carry out fully the provisions of the
Partnership Agreement.
Dissolution and Liquidation
Article XV of the Partnership Agreement provides that the Partnership
shall be dissolved and its business wound up upon the earliest to occur of (a)
the date of disposition of all assets of the Partnership, (b) the date of the
removal, resignation, adjudication of bankruptcy, insolvency or dissolution of
a General Partner, unless the Limited Partners elect to continue the business
of the Partnership, (c) that date on which Limited Partners holding a majority
of Interests vote in favor of dissolution and termination, or (d) January 31,
2020.
Upon the election by the Limited Partners to continue the business of
the Partnership after an event specified in (b) above, the Partnership shall be
required to purchase the General Partner's general partnership interest
pursuant to Section 12.3 and Section 12.4 of the Partnership Agreement.
Upon the completion of the liquidation of the Partnership, the General
Partners have the authority to execute and record a certificate of cancellation
of the Partnership, as well as any and all other documents required to
effectuate the dissolution and termination of the Partnership.
GLOSSARY
As used in this Prospectus, the following definitions of terms are
applicable:
"Affiliate": (i) any person directly or indirectly controlling,
controlled by, or under common control with, another person, (ii) a
person owning or controlling 10% or more of the outstanding voting
securities or beneficial interests of such other person, (iii) any
officer, director, partner, general trustee, or any other person acting
in a substantially similar capacity of such person, and (iv) if such
other person is an officer, director, partner, trustee or holder of 10%
or more of the voting securities or beneficial interests of such person,
any other entity for which such person acts in any capacity.
65
<PAGE> 2
"Average Annual Unreturned Invested Capital": The total of all the
Limited Partners' Original Invested Capital reduced by the total of all Cash
Distributions from Sales or Refinancings (but not below zero) to Limited
Partners, as reflected on the Partnership's books and records, weighted on a
daily average basis for the period.
"Cash Distributions from Operations": Distributions of cash receipts
from Gross Revenues after (i) operating expenses (without deduction for
depreciation), (ii) amounts set aside for reasonable reserves and (iii)
payments on the Partnership's other current obligations.
"Cash Distributions from Sales or Refinancings": Distributions of cash
receipts from Net Proceeds from Sales or Refinancings realized by the
Partnership from sales or refinancings of the Partnership's properties after
(i) amounts set aside for reasonable reserves and (ii) payments on the
Partnership's other current obligations.
"Closing Date": Such date as designated by the General Partners as the
date when the last Interest has been sold by the Partnership, but in no event
later than one year after the Registration Statement first became effective.
"Corporate General Partner": Murray Realty Investors VIII, Inc.
"Escrow Agent": Mercantile National Bank at Dallas, Dallas, Texas, or
its successor.
"General Partners": Murray Realty Investors VIII, Inc. and Crozier
Partners VIII, Ltd.
"Gross Revenues": All Partnership revenues from whatever source
derived, exclusive of revenues from the sale or refinancing of Partnership
properties.
"Initial Closing Date": The date on which subscriptions for the minimum
of 3,000 Interests have been accepted by the General Partners.
"Interest": The limited partnership interest in the Partnership
acquired by the payment of 81,000 to the Partnership.
"Limited Partners": All persons who are admitted to the Partnership as
limited partners.
"Minimum Deadline": This date that is 120 days after the date of this
Prospectus, unless extended by the General Partners by up to an additional 90
days.
"NASAA Guidelines": The guidelines for real estate programs as adopted
by the North American Securities Administrators Association as they exist on
the date the Partnership's Registration Statement is declared effective by the
Securities and Exchange Commission.
"Net Proceeds from Sales or Refinancings": The net cash realized by the
Partnership from sales, refinancings or other dispositions of Partnership
properties after the payment of all debts and expenses related to the
transactions.
"Non-corporate General Partner": Crozier Partners VIII, Ltd.
"Organizational and Offering Expenses": Expenses incurred in connection
with the organization of the Partnership and the offering of the Interests
(excluding selling commissions), including legal fees, accounting fees, escrow
fees, printing costs, filing and qualification fees, reimbursement of expenses
(excluding salaries and related salary expenses incurred during the
organization of the Partnership) incurred by the General Partners or their
Affiliates and other disbursements in connection with the sale and distribution
of Interests.
"Original Invested Capital": An amount equal to $1,000 per Interest.
"Partner": Any General Partner or Limited Partner.
"Partnership": The partnership created under the Agreement of Limited
Partnership attached as Exhibit A.
66
<PAGE> 3
"Preferred Return": The cumulative preferred return to each
Limited Partner equal to 12% per annum on his Average Annual Unreturned
Invested Capital from either Cash Distributions from Operations or Cash
Distributions from Sales or Refinancings, or both. Such cumulative preferred
return shall be calculated from the beginning of the first full fiscal quarter
after such Limited Partner purchased such Interest. A Limited Partner shall be
deemed to have purchased an Interest as of the date on which the purchase of
such Interest is reflected on the certificate of limited partnership filed with
the Secretary of State of Texas.
"Property Management Fee": The fee payable for property
management services.
"Prospectus": The prospectus contained in the Registration
Statement on the date the Registration Statement is declared effective by the
Securities and Exchange Commission.
"Registration Statement": The Partnership's Registration
Statement on Form S-11 filed with the Securities and Exchange Commission and as
amended from time to time.
"Repurchase Fund": 25% of the Corporate General Partner's share
of Cash Distributions from Operations to be used to repurchase Limited Partner
Interests under certain circumstances.
THE OFFERING
Subject to the conditions set forth in this Prospectus and in
accordance with the terms and conditions of the Partnership Agreement, the
Partnership offers through the Dealer Manager a maximum of 30,000 Interests
priced at $1,000 per Interest. Except for investors in certain states that have
imposed higher purchase requirements as set forth in the Subscription
Agreement, a form of which is included as Exhibit B, the minimum subscription
for an Individual Retirement Account is two Interests. The minimum subscription
for other investors is five Interests.
The Interests are being offered on a "best efforts" basis through
Murray Securities Corporation (the "Dealer Manager"), an Affiliate of the
General Partners. As compensation for its services in soliciting and obtaining
subscribers for the purchase of the Interests, the Partnership has agreed to
pay the Dealer Manager a commission of up to a maximum of 8 1/2% of the gross
proceeds on all sales made directly by it or by other dealers in accordance
with the following schedule:
<TABLE>
<CAPTION>
Amount of Investment
- ---------------------------------- Commission
From To Rate
- ---------- ---------- ----------
<S> <C> <C>
$ 2,000 $ 25,000.................... 8 1/2%
26,000 100,000.................... 7 1/2%
101,000 250,000.................... 6 1/2%
251,000 500,000.................... 5 1/2%
501,000 1,000,000.................... 4 1/2%
over $1,000,000...................................... 2 1/2%
</TABLE>
Subscriptions may be combined for the purpose of determining the total
commissions payable in the case of subscriptions made by any investor who,
subsequent to his initial purchase of Interests, subscribes for the purchase of
additional Interests. Any request to combine subscriptions will be subject to
verification by the General Partners that all of such subscriptions were made
by a single investor. In such an event, the commission payable with respect to
the initial purchase of Interests will be computed using the commission
schedule set forth above. The commission payable with respect to any subsequent
purchase of Interests will equal the commission that would have been payable in
accordance with the commission schedule set forth above if all purchases had
been made simultaneously, less the commissions that previously have been paid
with respect to all prior purchases of Interests by such an investor. The
difference between 8.5% of the gross proceeds from the sale of Interests and
the amount payable to the Dealer Manager with respect to such sale will be
reimbursed to the Limited Partner as soon as possible after his admission to
the Partnership.
67
<PAGE> 1
paid to the Terminated General Partners by the Partnership), such interest to
be payable at the time of each installment of principal, which shall be payable
as the Terminated General Partner and the Partnership may agree, or if they
cannot so agree, then annually over a period of five years from the date of the
Terminated General Partner's retirement, resignation, removal, adjudication of
bankruptcy, insolvency, dissolution, insanity or death. No prepayment penalty
shall be charged to the Partnership for the early payment of its note.
12.3 The fair market value of the Terminated General Partner's
interest to be purchased by the Partnership according to the provisions of
Section 12.2 above shall be determined by agreement between the Terminated
General Partner and the Partnership. If the Terminated General Partner and the
Partnership cannot agree upon the fair market value of such Partnership
interest within 90 days after the date of the Terminated General Partner's
retirement, resignation, removal, adjudication of bankruptcy, insolvency,
dissolution, insanity or death, then the Terminated General Partner and the
Partnership shall each select an independent appraiser within the next thirty
days. If such appraisers fail to agree on the fair market value of the
Terminated General Partner's interest within the next 90 days, then the two
appraisers shall jointly appoint a third appraiser whose determination shall be
final and binding. The Terminated General Partner and the Partnership shall
each compensate their respective appraisers, and the compensation of the third
appraiser, if necessary, shall be borne equally by each party.
12.4 Within 90 days after the retirement, resignation, removal,
adjudication of bankruptcy, insolvency, dissolution, insanity or death of a
General Partner (except that a General Partner shall not voluntarily withdraw
from the Partnership without at least 90 days' prior written notice to the
other General Partner and the Limited Partners of intention to withdraw, and in
such event, within the period from the date of the notice of intention to
withdraw to the date of withdrawal specified in the notice of intention),
Limited Partners holding a majority of the Interests may elect to continue the
business of the Partnership and, if they desire to do so, may elect a successor
General Partner.
ARTICLE XIII
Transfer of a Partnership Interest
13.1 The General Partners may, pursuant to this Article XIII, admit
as a substituted Limited Partner any successor in interest to a Limited Partner
who is either deceased or under legal disability or who is an assignee of a
Limited Partner.
13.2 Subject to the provisions of this Article XIII, compliance with
the suitability standards imposed by the Partnership, applicable "blue sky"
laws and the applicable rules of any other governmental authority, a Limited
Partner shall have the right to assign the whole or any portion of his
Interests (but not less than five Interests unless to an Individual Retirement
Account and then not less than two Interests) by a written assignment, the
terms of which are not in contravention of any of the provisions of this
Agreement. Any assignment in contravention of any of the provisions of this
Article XIII shall be of no force and effect and shall not be binding upon or
recognized by the Partnership.
(a) Except as provided in (b) below, an assignee of a Limited
Partner's Interest who is not admitted as a substituted Limited Partner
shall have no right to require any information or account of the
Partnership's transactions or to inspect the Partnership's books; he
shall only be entitled to receive Distributions from the Partnership and
the share of income, gain, loss, deduction and credit attributable to
the Interests acquired by reason of such assignment from the first day
of the month following the month in which the written instrument of
assignment, executed by the assignor and in form and substance
reasonably satisfactory to the General Partners, and other documents
reasonably deemed necessary or appropriate by the General Partners (as,
for example, evidence that the assignee meets investor suitability
standards) shall have been received by the Partnership.
A-17
<PAGE> 2
(b) Anything herein to the contrary notwithstanding, both the
Partnership and the General Partners shall be entitled to (i) treat the
assignor of such Interests as the absolute owner thereof in all
respects, and shall incur no liability for allocations of income, gain,
loss, deduction or credit for Distributions or for transmittal of
reports and notices required to be given to holders of Interests, until
the last day of the month in which the Partnership shall have received
the written assignment executed by the assignor in form and substance
reasonably satisfactory to the General Partners and other documents
reasonably deemed necessary or appropriate by the General Partners
(including evidence of the assignee's compliance with standards imposed
by applicable "blue sky" laws) or (ii) treat the assignee as a
substitute Limited Partner in the place of his assignor, should the
General Partners deem, in their absolute discretion, that such treatment
is in the best interests of the Partnership for any of its purposes or
for any of the purposes of this Agreement.
13.3 No assignee shall have the right to become a substituted
Limited Partner in place of his assignor unless all of the following conditions
are satisfied:
(a) The written consent of the General Partners to such
substitution shall be obtained, the granting of which shall not be
unreasonably withheld;
(b) A duly executed written instrument of assignment setting forth
the intention of the assignor that the assignee shall become a
substituted Limited Partner in his place shall have been filed with
the Partnership;
(c) The Interests being acquired by the assignee shall consist of
at least two Interests if such assignee is an Individual Retirement
Account and at least five Interests if such assignee is not an
Individual Retirement Account and, if the assignor shall retain any
Interests, such retention shall consist of at least two Interests if
such assignor is an Individual Retirement Account and at least five
Interests if such assignor is not an Individual Retirement Account;
(d) The assignor and assignee shall execute and acknowledge such
other instruments as the General Partners reasonably deem necessary or
desirable to effect such assignment and admission, including, but not
limited to, evidence of the assignee's compliance with standards imposed
by any applicable "blue sky" laws, the written acceptance and adoption
by the assignee of the provisions of this Agreement and his execution,
acknowledgment and delivery to the General Partners of a special power
of attorney, the form and content of which are more fully described in
Article XXI hereof; and
(e) The Partnership shall have received from the assignor or
assignee a transfer fee to cover all reasonable expenses of the
transfer, not to exceed $50 per transaction, but such transfer fee
may be waived by the General Partners, in their discretion.
13.4 Any person admitted to the Partnership as a substituted Limited
Partner shall be subject to all of the provisions of this Agreement as if an
original party to it.
13.5 The General Partners shall amend the certificate of limited
partnership at least once each quarter to add assignees as substituted Limited
Partners.
13.6 Upon the death or legal disability of an individual who is a
Limited Partner, his personal representative shall have all of the rights of a
Limited Partner for the purpose of settling or managing his estate, and such
power as the decedent or incompetent possessed to constitute a successor as an
assignee of his interests in the Partnership and to join with such assignee in
making application to substitute such assignee as a Limited Partner. However,
such personal representative shall not have the right to become a substituted
Limited Partner in the place of his predecessor in interest unless the
conditions of this Article XIII (other than the requirement that the assignor
execute and acknowledge instruments) are first satisfied.
A-18
<PAGE> 3
13.7 Upon the adjudication of bankruptcy or insolvency, dissolution
or other cessation of existence as a legal entity of a Limited Partner which is
not an individual, the authorized representative of such entity shall have all
of the rights of a Limited Partner for the purpose of effecting the orderly
winding up and disposition of the business of such entity and such power as
such entity possessed to constitute a successor as an assignee of its interest
in the Partnership and to join with such assignee in making application to
substitute such assignee as a Limited Partner. However, such representative
shall not have the right to become a substituted Limited Partner in the place of
his predecessor in interest unless the conditions of this Article XIII (other
than the requirement that the assignor execute and acknowledge instruments) are
first satisfied.
13.8 A General Partner may not assign his or its interest as a
General Partner to anyone other than the Partnership as provided in Article XII
of this Agreement.
13.9 No assignment of any Interests may be made if the Interests
sought to be assigned, when added to the total of all other Interests assigned
within the period of 12 consecutive months prior to the proposed date of
assignment, would, in the opinion of counsel for the Partnership, result in the
termination of the Partnership under Section 708 of the Internal Revenue Code
of 1954, as amended.
13.10 Any assignment, sale, exchange or other transfer in
contravention of any of the provisions of this Article XIII shall be void and
ineffectual, and shall not bind or be recognized by the Partnership.
ARTICLE XIV
Indemnification
14.1 No General Partner and no officer, director, partner, Affiliate
or assign of a General Partner shall be liable to the Partnership or any
Limited Partner for any loss or damage suffered by the Partnership or any
Limited Partner which arises out of any error in judgment or other action or
inaction not constituting negligence (gross or ordinary), fraud or breach of
fiduciary duty which was taken in good faith, in accordance with the exercise
of reasonable business judgment and pursuant to a determination that such
course of conduct was in the best interest of the Partnership. The Partnership
or its receiver or trustee shall indemnify, save harmless and pay all judgments
and claims against the General Partners (and each of them) or their officers,
directors, partners, Affiliates and assigns from any liability, loss or damage
incurred by them or by the Partnership by reason of any act performed or
omitted to be performed by them in connection with the activities of the
Partnership or in dealing with third parties on behalf of the Partnership,
including costs and attorneys' fees (which attorneys' fees may be paid as
incurred) and any amounts expended in the settlement of any claims of
liability, loss or damage, provided that such action was taken in good faith,
in accordance with the exercise of reasonable business judgment and pursuant to
a determination that such course of conduct was in the best interest of the
Partnership and did not constitute fraud, negligence (gross or ordinary) or
breach of fiduciary duty by such General Partner or such officer, director,
partner, Affiliate or assign and provided further that any such indemnification
shall be recoverable only from the assets of the Partnership and not from the
assets of the holders of Interests. Notwithstanding the foregoing, no
Affiliate will be indemnified or excused from liability under this Agreement in
connection with Partnership activities to the extent such Affiliate is
rendering contract services for which it receives a competitive fee. All
judgments against the Partnership and a General Partner, wherein a General
Partner is entitled to indemnification, must first be satisfied from
Partnership assets before a General Partner shall be responsible for such
obligations. The Partnership shall not pay for any insurance covering liability
of a General Partner or of officers, directors, partners, Affiliates and
assigns of a General Partner for actions or omissions for which indemnification
is not permitted hereunder; provided, however, that nothing contained herein
shall preclude the Partnership from purchasing and paying for such types of
insurance, including extended coverage liability and casualty and workmen's
compensation, as would be customary for any person owning comparable property
and engaged in a similar business or from naming a General Partner and any
Affiliate as additional
A-19
<PAGE> 1
expenditure made by the Partnership which the General Partners deem to
be the fair, just and equitable share that should be borne by Murray
Income Properties II, Ltd.
AMENDMENT NO. 9
Explanation of Amendment. Section 10.15 requires the Corporate General
Partner to allocate 25% of its share of Cash Distributions from Operations to a
"Repurchase Fund" for the purchase of Interests upon the request of a Limited
Partner. The Corporate General Partner is permitted to commingle the amount
allocated to the "Repurchase Fund" with other assets of the Corporate General
Partner. To the present time, however, the Corporate General Partner has not
been paid any Cash Distributions from Operations since the allocation and
payment of Cash Distributions to the Corporate General Partner is subordinated
to the prior receipt by the Limited Partners of a non-cumulative 7% annual
return from either Cash Distributions from Operations or Cash Distributions from
Sales or Refinancings, or both, on their Average Annual Unreturned Invested
Capital.
Since the amendments herein will reduce the allocation of Cash
Distributions from Operations to the Corporate General Partner from 8% to 3% and
will reallocate 5% of such 8% to the Non-Corporate General Partner (subordinate,
of course, in each instance to the prior receipt by the Limited Partners of a
non-cumulative 7% annual return from either Cash Distributions from Operations
or Cash Distributions from Sales or Refinancings, or both), this amendment will
require both the Corporate General Partner and the Non-Corporate General
Partner, in the proportions of 3/8ths for the Corporate General Partner and
5/8ths for the Non-Corporate General Partner, respectively, to allocate 25% of
their respective shares of any such subordinated Cash Distributions from
Operations to a "Repurchase Fund" to be established by each of them,
respectively.
The Amendment. The last two sentences in the first paragraph of Section
10.15 are hereby deleted and there is hereby substituted in lieu thereof the
following three sentences:
"The Corporate General Partner will allocate 25% of its share of Cash
Distributions from Operations to a "Repurchase Fund" and the
Non-Corporate General Partner will allocate to a "Repurchase Fund" 25%
of its 5% share of Cash Distributions from Operations that is
subordinated to the prior receipt by the Limited Partners of a
non-cumulative 7% annual return from either Cash Distributions from
Operations or Cash Distributions from Sales or Refinancings, or both, on
their Average Annual Unreturned Invested Capital. The Corporate General
Partner's share of Cash Distributions from Operations allocated to the
Repurchase Fund will be commingled with other assets of the Corporate
General Partner and the Non-corporate General Partner's share of Cash
Distributions from Operations allocated to the Repurchase Fund will be
commingled with other assets of the Non-corporate General Partner. Any
repurchase of Interests pursuant to this Section 10.15 shall be in the
proportions of 3/8ths by the Corporate General Partner and 5/8ths by the
Non-corporate General Partner, respectively.*
AMENDMENT NO. 10
Explanation of Amendment. Section 11.3 provides in respect of voting on
any matter on which the Limited Partners are entitled to vote that each Limited
Partner will be deemed to be "--the holder of only those Interests shown on
Exhibit A, as amended by the last-filed certificate of limited partnership." The
Texas Uniform Limited Partnership Act requires the filing of a certificate of
limited partnership that lists the name and address of each limited partner of a
limited partnership and the amount of the contribution of each limited partner
to the partnership. The certificate of limited partnership filed in the office
of the Secretary of State is authoritative as to the identity of limited
partners. The Texas Uniform Limited Partnership also does not permit an owner of
a limited partnership interest to be considered a "limited
(vi)
<PAGE> 1
commissions on such Interests. No selling commissions were paid on the
five Interest purchased by the Initial Limited Partner.
(4) For a discussion of the limitations imposed by the NASAA Guidelines
with respect to the percentage of capital contributions available for
the payment of acquisition expenses, see footnote (3) to "Management
Compensation."
(5) Assumes an initial working capital reserve of 2% of gross offering
proceeds. See "Investment Objectives and Policies - Working Capital
Reserve."
MANAGEMENT COMPENSATION
The following table sets forth the types and estimates of the amounts
of all fees, compensation, income, distributions and other payments that the
General Partners and their Affiliates will or may receive in connection with
the operations of the Partnership. SUCH FEES, COMPENSATION, INCOME,
DISTRIBUTIONS AND OTHER PAYMENTS WERE NOT DETERMINED BY ARMS-LENGTH BARGAINING.
See "Conflicts of Interest."
<TABLE>
<CAPTION>
Entity Receiving Method of Determination
Form of Compensation Compensation and Estimated Dollar Amount
- -------------------- ---------------- ---------------------------
<S> <C> <C>
Offering Stage
Selling Commissions Murray Securities Corpora- Up to $85 per Interest sold,
tion, an Affiliate of the reduced for purchases by one
General Partners(1) investor of more than 25
Interests and for purchases
by officers, directors, partners,
employees or Affiliates of the
General Partners or their
Affiliates. Actual amount
depends upon number of
Interests sold but could be
$2,549,575 if 30,000 Interests
are sold.(2)
Reimbursement of Murray Realty Investors Actual out-of-pocket Organiza-
Organizational and VIII, Inc. or its Affiliates tional and Offering
Offering Expenses(3) Expenses, including
accounting, legal, printing,
registration fees, etc.
Acquisition Stage
Purchase of Murray Properties Actual costs of properties
Properties at Cost(4) Company, an Affiliate acquired by Affiliates.
of the General Partners, Dollar amount is not
or its Affiliates determinable at this time.(5)
Title Insurance Dallas Title Company or A portion of the premium
Commissions(6) Texas Title Company, paid for title insurance upon
Affiliates of the General acquisition of a property.
Partners(7) The premium in Texas is
fixed by the State. Dollar
amount is not determin-
able at this time.(5)
</TABLE>
10
<PAGE> 2
<TABLE>
<CAPTION>
Entity Receiving Method of Determination
Form of Compensation Compensation and Estimated Dollar Amount
- -------------------- ---------------- ---------------------------
<S> <C> <C>
Operational Stage
Property Management Fees Murray Management Corp- An amount equal to (a) for
ration, an Affiliate of its management services,
the General Partners(8) the lesser of (i) 6% of gross
revenues or (ii) the amount
customarily charged in
arms length transactions
by others rendering com-
parable services in the
locality where the property
is located, considering the
size and type of each such
property plus (b) reim-
bursement for the actual costs
of on-site personnel engaged
in the management, leasing
and maintenance of the
property of the Partnership
and certain other costs.
Dollar amount is not deter-
minable at this time.(5)
Reimbursement of Part- Murray Realty Investors Actual cost of goods and
nership Operational VIII, Inc. or its materials used for and by the
Expenses(9) Affiliates Partnership and obtained
from an entity not affiliated
with a General Partner or an
Affiliate of the General
Partners and certain ad-
ministrative services. Dollar
amount is not determinable
at this time.(5)
Casualty Insurance Murray General Agency, A portion of the premiums
Commissions Inc., an Affiliate of paid for casualty insur-
the General Partners(10) ance. The cost of the
insurance cannot exceed
the lower quote for com-
parable terms and coverage
from two independent
brokers. Dollar amount is
not determinable at this
time.(5)
Partnership Administrative Murray Savings Associa- The excess of Murray Savings
and Property Operating tion, an Affiliate of Association's rate of
Account the General Partners(11) return on the Partnership
funds in such account over
the interest rate paid to
the Partnership on such
account. Dollar amount is
not determinable at this
time.(5)
</TABLE>
11
<PAGE> 3
<TABLE>
<CAPTION>
Entity Receiving Method of Determination
Form of Compensation Compensation and Estimated Dollar Amount
- ------------------------ ------------------------ --------------------------------
<S> <C> <C>
Interest and Other A General Partner or an An amount not in excess of
Financing Charges or Affiliate of the General the amounts that would be
Fees Partners(12) charged by unrelated lending
institutions on comparable
loans for the same purpose
and in the same locality but
never in excess of 2% over
the prime rate of Mercantile
National Bank at Dallas.
Dollar amount is not
determinable at this time.(5)
Distributive Share of Crozier Partners VIII, The Non-corporate General
Cash Distributions Ltd. and Murray Realty Partner will receive 2% of
from Operations(13) Investors VIII, Inc.(14) all Cash Distributions from
Operations. The Corporate
General Partner will receive
8% of all Cash Distributions
from Operations, subject to
the Limited Partners having
received a noncumulative
annual cash return equal to
7% of their Average Annual
Unreturned Invested Capital,
calculated from the Closing
Date. Dollar amount is not
determinable at this time.(5)
Liquidation Stage
Real Estate Commissions Crozier Partners VIII, Ltd. An amount equal to 50% of the
or its Affiliates; Murray competitive real estate
Realty Investors VIII, Inc. commission, such commission
or its Affiliates(14)(15) not to exceed 6% of the sales
price of the property. Such
commissions will be payable
only after Limited Partners
have been returned their
Original Invested Capital
from Cash Distributions from
Sales or Refinancings, plus
their Preferred Return from
either Cash Distributions
from Operations or Cash
Distributions from Sales or
Refinancings, or both. Dollar
amount is not determinable
at this time.(5)
</TABLE>
12
<PAGE> 4
<TABLE>
<CAPTION>
Entity Receiving Method of Determination
Form of Compensation Compensation and Estimated Dollar Amount
- --------------------------- ------------------------- -------------------------------
<S> <C> <C>
Title Insurance Commissions Dallas Title Company or Texas A portion of the premiums paid
Title Company, Affiliates of for title insurance upon sale,
the General Partners(7) financing or refinancing of a
property if such title
insurance is provided by
Dallas Title Company or
Texas Title Company. The
premium in Texas is fixed by
the State. Dollar amount is
not determinable at this
time.(5)
Distributive Share of Cash Crozier Partners VIII, Ltd. The Non-corporate General
Distributions from Sales or and Murray Realty Partner will receive 1% of
Refinancings(13)(16) Investors VIII, Inc.(14) all Cash Distributions from
Sales or Refinancings. The
remaining 99% shall be
allocated (a) first to the
Limited Partners until they
have been returned their
Original Invested Capital
from Cash Distributions from
Operations or Cash
Distributions from Sales or
Refinancings, or both (b)
then to the Corporate General
Partner in an amount equal to
any unpaid Cash Distributions
from Operations subordinated
to the Limited Partners' 7%
noncumulative annual return
and (c) thereafter, the
remainder shall be allocated
80% to the Limited Partners
and 20% to the General
Partners. See "Income and
Losses and Cash
Distributions." Dollar amount
is not determinable at this
time.(5)
</TABLE>
- ------------
(1) The Dealer Manager may authorize certain other broker-dealers who are
members of the National Association of Securities Dealers, Inc., to sell
Interests on a "best efforts" basis. In the event of sale by such other
broker-dealers, the Dealer Manager has advised the Partnership that the
Dealer Manager will pay to such other broker-dealers all or a portion of
its commission from such sales.
(2) See "The Offering" for a discussion of the reduction in selling
commissions payable with respect to sales to one purchaser or more than
25 Interests or with respect to sales to officers, directors, partners,
employees or Affiliates of the General Partners or their Affiliates.
13
<PAGE> 5
(3) The NASAA Guidelines require that, at a minimum, an amount equal to the
greater of (i) 67% of the Limited Partners' capital contributions or
(ii) 80% of such capital contributions reduced by .1625% for each 1% of
indebtedness encumbering the Partnership's properties be committed to
investment in properties. Investment in properties, as defined under the
NASAA Guidelines, is the amount of capital contributions actually paid
or allocated to the purchase, development, construction or improvement
of properties acquired by the Partnership (including working capital
reserves not in excess of 5% of gross offering proceeds). The remaining
capital contributions not invested in properties are available for the
payment of Organizational and Offering Expenses, selling commissions,
acquisition fees and acquisition expenses. Acquisition fees for this
purpose shall be the total of all fees and commissions paid by any party
in connection with the purchase or development of property by the
Partnership, including real estate commissions, acquisition fees,
selection fees, development fees, non-recurring management fees, or any
fees of a similar nature, however designated, but excluding a
development fee paid to a person not affiliated with the General
Partners or their Affiliates in connection with actual development of
property after acquisition by the Partnership. Acquisition expenses for
this purpose include, but are not limited to, legal fees and expenses,
travel and communication expenses, costs of appraisals, loan commitment
and loan fees ("points"), nonrefundable option payments on properties
not acquired, accounting fees and expenses, title insurance, and
miscellaneous expenses related to selection and acquisition of
properties, whether or not acquired. It is anticipated that the
Partnership will not pay any acquisition fees to the General Partners or
their Affiliates and the total of acquisition fees to all parties and
acquisition expenses will not exceed 1% of the Limited Partners' capital
contributions. Based on these assumptions and assuming the sale of
30,000 Interests with Organizational and Offering Expenses and selling
commissions equal to 11.5% of the Limited Partners' capital
contributions, the amount that would be invested in properties would be
equal to 87.5% of such contributions. The amount invested in Partnership
properties will comply with the NASAA Guidelines limitations set forth
above.
(4) An Affiliate of the General Partners may purchase property in its own
name (and assume loans in connection therewith) and temporarily hold
title thereto for the purpose of facilitating the acquisition of such
property or the borrowing of money or obtaining of financing for the
Partnership, or any other purpose related to the business of the
Partnership, provided that such property is purchased by the Partnership
for a price no greater than the cost of such property to the Affiliate,
and provided there is no difference in interest rates of the loans
secured by the property at the time acquired by the Affiliate and the
time acquired by the Partnership, nor any other benefit arising out of
such transaction to the Affiliate apart from compensation otherwise
permitted herein. In such event, such Affiliate may be reimbursed for
its expenses incurred in holding such real property prior to the
acquisition of such property by the Partnership. On March 15, 1984,
Murray Properties Company acquired Mountain View Plaza, a shopping
center in Scottsdale, Arizona for a purchase price of $6,392,916. If
sufficient funds are received by the Partnership pursuant to this
offering, the Partnership will acquire the Property from Murray
Properties Company and Murray Properties Company will be reimbursed as
provided herein. See "The Property."
(5) Any prediction of such dollar amount would necessarily involve
assumptions of future events that cannot be determined at this time.
(6) To the extent a seller of property to the Partnership sets the sales
price at a level sufficient to cover the premium for title insurance,
the Partnership, in effect, will pay the premium in the purchase price
of the property.
(7) The Partnership has entered into nonexclusive contracts with Dallas
Title Company and Texas Title Company, Affiliates of the General
Partners, pursuant to which each has agreed that, upon the request of
the Partnership, it will handle the closing of purchases, sales,
financings or refinancings by the Partnership of properties situated in
Texas and will cause to be issued title
14
<PAGE> 6
insurance policies on such properties. Either of such title insurance
agencies may receive a portion of the commission on premiums paid for title
insurance by the Partnership or by a seller of real property to the
Partnership. In Texas, title insurance premiums and the policy forms are
prescribed by the State. Each contract provides that if such title insurance
agency does not derive, in any calendar year, at least 75% of its gross
income from persons or entities not affiliated with a General Partner, that
agency's contract will terminate upon the earlier of 60 days after the end
of the calendar year or as soon as the Partnership can arrange for another
person or entity to perform such services. Each contract also provides that
it may be terminated by either party, without penalty, on 60 days' prior
written notice and that such title insurance agency shall not render
services or receive title insurance commissions in connection with the
reinvestment of any proceeds from a sale or refinancing of Partnership
properties.
(8) The Partnership has entered into an agreement with Murray Management
Corporation, an Affiliate of the General Partners, pursuant to which Murray
Management Corporation will be responsible for the management of each
property and the collection of its rental income, for which services it will
receive a monthly Property Management Fee. This Property Management Fee is
payable for professional supervisory management services undertaken in
connection with the operation of the Partnership's properties. Such fee
shall include all leasing and re-leasing fees and bonuses, and
leasing-related services, except that a separate fee may be paid for the
one-time initial lease-up of a newly constructed property if such service is
not included in the purchase price of the property, provided that such fee
shall not exceed the lesser of the cost of such services or 90% of the
competitive price that would be charged by non-affiliated persons rendering
similar services in the same or comparable geographic location. Murray
Management Corporation shall pay from the Property Management Fee, and not
as an expense of the Partnership, the expenses of rendering supervisory
property management services; provided, however, that the wages and expenses
of on-site personnel engaged in the management, leasing and maintenance of
the Partnership's properties and supplies, repairs, furniture, equipment
costs and other costs directly attributable to the Partnership's property
operations shall be deemed to be property operating expenses and as such
shall be borne by the Partnership by reimbursement to Murray Management
Corporation. Wages and other actual expenses of personnel may be allocated
between properties of the Partnership and other properties managed by Murray
Management Corporation if such properties are owned by (i) a public or
private program sponsored by the General Partners or their Affiliates or any
joint venture in which a General Partner or an Affiliate is a party or (ii)
an unaffiliated third party. Murray Management Corporation has the right to
subcontract to third parties a portion or all of the management services to
be rendered by it with respect to any particular property, provided that (a)
Murray Management Corporation shall at all times remain responsible for the
management of such property, (b) the Partnership shall not be required to
pay for duplicate services and (c) the aggregate cost to the Partnership
will not exceed the amount which would be customarily charged in arms-length
transactions by others rendering similar services in the locality where the
property is located, considering the size and type of each such property, if
only one entity had provided all such services. The agreement between the
Partnership and Murray Management Corporation may be terminated by either
party, without penalty, on 60 days' prior written notice.
(9) Except as set forth below, reimbursements to a General Partner or an
Affiliate of a General Partner shall not be allowed. A General Partner or an
Affiliate of a General Partner may be reimbursed for: (a) the actual cost of
goods and materials used for or by the Partnership and obtained from an
entity not affiliated with a General Partner or an Affiliate of a General
Partner; and (b) the lesser of the cost or 90% of the competitive price
charged by unaffiliated parties for (i) salaries and related salary expenses
for services that could be performed directly for the Partnership by
independent parties, including parties, including legal, accounting,
transfer agent, data processing, duplicating and administration of investor
accounts and (ii) Partnership reports and communications to investors. All
such transactions shall be pursuant to the terms of a written contract
15
<PAGE> 7
between the Partnership and such General Partner or Affiliate which
precisely describes the services to be rendered or the goods or materials
to be provided. No reimbursement shall be permitted for services for which
the General Partners or Affiliates receive a separate fee or for (i)
salaries, related salary expenses, traveling expenses, and other
administrative items which are incurred by any Controlling Person or which
are not directly attributable to the rendering of services to the
Partnership and (ii) any indirect expenses incurred in performing services
for the Partnership, such as rent or depreciation, utilities, capital
equipment, and other administrative items. "Controlling Person" for this
purpose shall mean any person, regardless of title, who performs executive
or senior management functions for the General Partners or Affiliates
similar to those of officers, directors, executive management and senior
management, or any person who either holds 5% or more equity interest in
the General Partners or Affiliates or has the power to direct or cause the
direction of the General Partners or Affiliates, whether through the
ownership of voting securities, by contract, or otherwise, or, in the
absence of a specific role or title, any person having the power to direct
or cause the direction of the management level employees and policies of
the General Partners or Affiliates. It is not intended that every person
who carries a title such as vice president, senior vice president,
secretary or treasurer be included in the definition of Controlling Person.
In no event shall any amount charged to the Partnership as a reimbursable
expense by the General Partners exceed the lesser of the actual cost of
such services or the amount which the Partnership would be required to pay
to independent parties for comparable services. "Costs" for purposes of
this paragraph shall include the price of goods and materials paid to
independent third parties, and direct costs incurred by the General
Partners or their Affiliates in the transactions, including overhead
directly attributable to the transaction, but excluding general or
administrative overhead. "Costs of Services" for purposes of this paragraph
shall mean the pro rata cost of personnel, including an allocation of
overhead directly attributable to such personnel, based on the amount of
time such personnel spent on such services, or other method of allocation
acceptable to the Partnership's independent certified public accountant.
Reimbursements are also allowable for certain organizational and offering
expenses and for the actual costs of on-site personnel engaged in the
management, leasing and maintenance of the property of the Partnership as
provided in note (8) above.
(10) The Partnership has entered into a nonexclusive contract with Murray
Insurance Agency, Inc., an Affiliate of the General Partners, pursuant to
which, upon the request of the Partnership, such agency will endeavor to
obtain fire, casualty or similar insurance on the properties of the
Partnership. Any commission on any casualty insurance brokered by it will
not exceed the amount customarily received by it from the brokerage of
comparable policies for unaffiliated persons. Before such agency brokers
any fire, casualty or similar insurance on any property of the Partnership,
quotes must have been received from two unaffiliated insurance brokers for
coverage and terms and comparable to that proposed to be provided by such
agency. No insurance will be brokered by the Partnership through such
agency unless the cost of such insurance will be no greater than the lower
quote of the two unaffiliated insurance agencies. The contract with Murray
Insurance Agency, Inc. provides that if such agency does not derive at
least 75% of its gross income from business done with persons or entities
not affiliated with a General Partner, that agency's contract will
terminate upon the earlier of 60 days after the end of the calendar year or
as soon as the Partnership can arrange for another person or entity to
perform such services. The contract also provides that it may be terminated
by either party, without penalty, on 60 days' prior written notice. Murray
General Agency Inc., an Affiliate of the General Partners, will receive
commissions on insurance premiums paid to Murray Insurance Agency, Inc. by
virtue of contractual arrangements between it and Murray Insurance Agency,
Inc.
(11) The General Partners may open and maintain an interest-bearing
Partnership administrative and property operating account at Murray Savings
Association, a stock association organized under the Texas Savings and Loan
Act. Murray Savings Association is a wholly-owned subsidiary of Murray
Financial Corporation, an Affiliate of the General Partners. Murray Savings
Association will pay the Partnership the highest interest rate permitted by
law on such
16
<PAGE> 8
accounts. Such accounts are insured up to a maximum of $100,000 by the
Federal Savings and Loan Insurance Corporation ("FSLIC"). It is not
anticipated that the balance of such accounts will exceed $100,000 on an
ongoing basis except to the extent monthly property operating expenses
have not been charged against collected rental income for any such
month. Murray Savings Association may receive indirect compensation to
the extent that Murray Savings Association's rate of return on the
Partnership funds in such account exceeds the interest rate paid to the
Partnership on such accounts. The Partnership will not be charged any
servicing fees on this account.
(12) It is not contemplated that a General Partner or any Affiliate of a
General Partner will make a loan to the Partnership, but the Partnership
Agreement permits any General Partner or any Affiliate of a General
Partner to make a loan to the Partnership if the interest and other
financing charges or fees on any such loan is not in excess of the
amounts which would be charged by unaffiliated lending institutions on
comparable loans for the same purpose in the same locality but not in
excess of 2% over the prime rate of Mercantile National Bank at Dallas.
Any financing charges or fees on any loan to the Partnership by a
General Partner or an Affiliate of a General Partner will be only those
incurred by such General Partner or Affiliate in connection with the
making of such a loan. Neither a General Partner nor an Affiliate of a
General Partner will make a profit from the Partnership's payment of
financing charges or fees. No property of the Partnership shall secure
any loan made to the Partnership by a General Partner or an Affiliate of
a General Partner if, at the inception of the loan, any payment of
principal or interest is to be made more than two years after the date
of the loan.
(13) For a discussion of Cash Distributions from Operations and Cash
Distributions from Sales or Refinancing, see "Income and Losses and Cash
Distributions."
(14) Crozier Partners VIII, Ltd. was formed as of January 10, 1984 under The
Texas Uniform Limited Partnership Act with Jack E. Crozier as the
general partner and Fulton Murray, individually, Fulton Murray in his
capacity as Trustee of the Beverly Murray Wilson Trust and Fulton Murray
and RepublicBank Dallas, N.A. in their capacities as Trustees of a trust
created under the Will of Owen M. Murray, Deceased, as the limited
partners.
(15) All real estate commissions payable to the General Partners or their
Affiliates for real estate brokerage services in connection with sales
of properties of the Partnership shall be cumulative but shall be paid
only after the Limited Partners have been returned their Original
Invested Capital from Cash Distributions from Sales or Refinancings,
plus their Preferred Return. If an unaffiliated broker participates in
the sale of a Partnership property, the subordination requirement will
apply only to the commission, if any, earned by the General Partners or
their Affiliates. The total of all real estate commissions payable to
all parties in connection with the sale of a Partnership property shall
not exceed a competitive real estate commission which is reasonable,
customary and competitive in light of the size, type and location of the
property or 6% of the sales price of the property. Real estate
commissions payable to the General Partners or their Affiliates will be
allocated two-thirds to the Non-corporate General Partner or its
Affiliates and one-third to the Corporate General Partner or its
Affiliates.
(16) Cash Distributions from Sales or Refinancings payable to the General
Partners (other than the 1% of Cash Distributions from Sales or
Refinancings payable to the Non-corporate General Partner) will be
divided two-thirds to the Non-corporate General Partner and one-third to
the Corporate General Partner.
17
