UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1
AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No.4)
VININGS INVESTMENT PROPERTIES TRUST
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(Name of Issuer)
COMMON SHARES OF BENEFICIAL INTEREST, without par value
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(Title of Class of Securities)
927428 20 1
(CUSIP Number)
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Peter D. Anzo
President and Chief Executive Officer
Vinings Investment Properties Trust
3111 Paces Mill Road, Suite A-200
Atlanta, GA 30339
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 17, 2000
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement of Schedule 13G to report
the acquisition which is the subject of the Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
*The remainder of the cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 927428 20 1 13D
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Peter D. Anzo
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
BK, PF and OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Georgia
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NUMBER OF 7 SOLE VOTING POWER
SHARES 716,641
BENEFICIALLY --------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH None
REPORTING --------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 716,641
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10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
716,641 Common shares of beneficial interest
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
61.67%
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14 TYPE OF REPORTING PERSON
IN
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Schedule 13D
This Amendment No. 3 to Schedule 13D (the "Third Amendment") should be read in
conjunction with the Schedule 13D filed with the Securities and Exchange
Commission on August 2, 1996 (the "Schedule 13D"), Amendment No. 1 to Schedule
13D filed on August 7, 1998, Amendment No. 2 to the Schedule 13D filed on July
22, 1999 relating to the common shares of beneficial interest, without par value
(the "Shares") of Vinings Investment Properties Trust, a Massachusetts business
trust (the "Trust"), Amendment No. 3 to the Schedule 13D filed on May 1, 2000.
This Fourth Amendment amends the Schedule 13D only with respect to those items
listed below. All capitalized terms not otherwise defined shall have the meaning
ascribed thereto in the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
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Effective March 1, 2000, in a private transaction which was completed
approximately March 17, 2000, Mr. Anzo acquired beneficial ownership of 547,982
Shares of the Trust.
- Of these 547,982 Shares, 437,225 Shares were acquired directly by Mr.
Anzo for an aggregate purchase price of $2,382,876. The consideration for the
purchase of the 437,225 Shares was comprised of four sources: (1) a personal
loan to Mr. Anzo from Watts Agent, L.P. dated March 1, 2000 in the amount of
$1,285,000 (the "Note"), which is secured by a pledge of 566,966 of Mr. Anzo's
Shares, evidenced by the Margin Stock Pledge Agreement and the Amendment to the
Margin Stock Pledge Agreement both dated as of March 1, 2000 and which are
included herewith as exhibits, (2) a draw on a home-equity line of credit from
Regions Bank in the amount of $500,000 which is included herewith as an exhibit,
(3) an exchange of certain partnership interests and other economic interests
held by Mr. Anzo in certain real estate investments with one of the sellers of
Shares totaling $400,003, and (4) certain personal funds of Mr. Anzo.
- 100,000 of these Shares were acquired for an aggregate purchase price of
$545,000 by VIP Management, LLC, ("VIP") an entity currently controlled by Mr.
Anzo.
- Mr. Anzo also acquired 10,757 partnership interests (the "Units") in
Vinings Investment Properties, L.P. (the "Operating Partnership") for an
aggregate purchase price of $58,626. The consideration for the purchase of the
10,757 Units was the exchange of certain partnership interests and other
economic interests held by Mr. Anzo in certain real estate investments held with
the seller of the Units. The Units may be converted into Shares on a one-for-one
basis at Mr. Anzo's option, or at the election of the Trust, into an amount of
cash equal to the fair market value of the Shares at the time of conversion.
ITEM 4. PURPOSE OF TRANSACTION.
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As described in Item 3 above, Mr. Anzo acquired beneficial ownership of 537,225
Shares and 10,757 Units for investment purposes only in a private transaction
that was effective March 1, 2000 and was completed on or about March 17, 2000.
Mr. Anzo has no present plan or proposal, except as may be required to carry out
his duties and responsibilities as Chairman of the Board of Trustees, President
and Chief Executive Officer of the Trust, which relates to or would result in:
(a) the acquisition or the disposition of additional securities of the Trust,
except that Mr. Anzo has agreed to acquire 470,588 preferred units of the
Operating Partnership from Watts Agent, L.P., Gilbert H. Watts, Jr. and any
Watts family member ("Watts Affiliates") on the earlier of March 1, 2002 or the
acceleration of the maturity of the Margin Loan Note, pursuant to the terms and
conditions of that certain Units Purchase and Sale Agreement dated March 1,
2000, which is included herewith as an exhibit; however, no assurance can be
given that Mr. Anzo may not, from time to time, acquire or dispose of additional
securities of the Trust depending on future market conditions;
(b) an extraordinary corporate transaction, such as a merger, reorganization or
liquidation involving the Trust or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Trust or any of its
subsidiaries;
(d) any change in the present board of trustees or management of the Trust,
including any plans or proposals to change the number or term of trustees or to
fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend policy of the
Trust;
(f) any other material change in the Trust's business or corporate structure;
(g) changes in the Trust's declaration of trust, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Trust by any person;
(h) a class of securities of the Trust to be delisted from a national securities
exchange or to cease to be authorized to be quoted in the inter-dealer quotation
system of a registered national securities association;
(i) a class of equity securities of the Trust becoming eligible for termination
of registration pursuant to Section 12(g)(4) of the Exchange Act; or
(j) any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
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(a) Mr. Anzo beneficially owns 716,641 Shares of the Trust, representing 61.67%
of the issued and outstanding Shares as of the date hereof. Amounts reported
herein include:
- 99,312 Shares personally held and previously reported by Mr. Anzo;
- 18,589 Shares now personally held that were previously reported as Shares
indirectly held by Mr. Anzo by virtue of his ownership interest in ANTs, Inc.;
- 40,000 Shares that were previously reported that Mr. Anzo may acquire
upon the exercise of stock options;
- 437,225 Shares personally held that were purchased by Mr. Anzo effective
March 1, 2000, in a private transaction as described herein;
-100,000 Shares owned by VIP which Mr. Anzo may be deemed to beneficially
own by virtue of his ownership interest in VIP. Mr. Anzo disclaims beneficial
ownership of 5,000 of the Shares held by VIP and this Third Amendment shall not
be deemed an admission that Mr. Anzo is the beneficial owner of such securities.
- 10,757 Units personally held by Mr. Anzo that are convertible on a
one-for-one basis into Shares, at any time, at the option of the holder, or at
the election of the Trust, the cash equal to the fair market value of such
Shares at the time of the conversion, which were purchased by Mr. Anzo effective
March 1, 2000, in a private transaction as described herein;
- 10,758 Units owned by The Vinings Group that Mr. Anzo may be deemed to
beneficially own by virtue of his ownership interest in The Vinings Group, that
are convertible on a one-for-one basis into Shares, at any time, at the option
of the holder, or at the election of the Trust, the cash equal to the fair
market value of such Shares at the time of the conversion.
(b) Mr. Anzo has sole power to vote or to direct the vote and sole power to
dispose of or direct the dispostion of 716,641 Common Shares of theTrust.
(c) In a private transaction that was effective March 1, 2000 and completed on
or about March 17, 2000, Mr. Anzo purchased 437,225 Shares from certain other
shareholders for a price of $5.45 per Share. In addition, Mr. Anzo also
purchased 10,757 Units for a price of $5.45 per Unit.
In the same transaction VIP purchased 100,000 Shares for a price of $5.45 per
Share.
(d) The members of VIP, and the shareholders of The Vinings Group upon
conversion into shares of the Units held by The Vinings Group, are and will be
entitled to receive dividends on the Shares and any proceeds of a sale of the
Shares.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
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As described in Item 3 above, Mr. Anzo has pledged 566,966 Shares to Watts
Agent, L.P. pursuant to the terms of that certain Margin Stock Pledge Agreement
by and between Peter D. Anzo and Watts Agent, L.P., (the "Stock Pledge
Agreement"), which has been filed as an exhibit hereto. In brief, the Stock
Pledge Agreement provides that Mr. Anzo retains all voting power with respect to
the pledged shares unless and until an Event of Default occurs. According to the
terms of the Stock Pledge Agreement, an Event of Default will occur if, among
other things, (a) Mr. Anzo fails to make payments on the Note to Watts Agent,
L.P., or (b) Mr. Anzo fails to perform any convenant contained in the Stock
Pledge Agreement. In the event that an Event of Default occurs, Watts Agent,
L.P. may elect to take legal title to the pledged Shares.
As reported in Item 4 above, Mr. Anzo has agreed to acquire 470,588 preferred
units in the Operating Partnership from Watts Affiliates on the earlier of March
1, 2002 or the acceleration of the maturity of the Margin Loan Note, pursuant to
the terms and conditions of that certain Units Purchase and Sale Agreement dated
March 1, 2000, which is included herewith as an exhibit;
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
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(a) Promissory Note dated March 1, 2000 in the amount of $1,285,000.
(b) Margin Stock Pledge Agreement dated March 1, 2000 in the face amount of
$1,285,000.
(c) Amendment to the Margin Stock Pledge Agreement dated March 1, 2000.
(d) Units Purchase and Sale Agreement dated March 1, 2000.
(e) Regions Bank Promissory Note dated February 4, 2000.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: May 2, 2000 /s/ Peter D. Anzo
-----------------------------------
Peter D. Anzo
PROMISSORY NOTE
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U.S. $1,285,000.00 March 1, 2000
FOR VALUE RECEIVED, the undersigned Maker, promises to pay to the order of
WATTS AGENT, L.P. (herein with any subsequent holder of this Promissory Note
called "Holder"), the principal sum of ONE MILLION TWO HUNDRED EIGHTY FIVE
THOUSAND AND NO/100 DOLLARS ($1,285,000.00) with interest as provided below.
All payments on this Note shall be due at Holder's address at
P.O. Box 682
Dalton, Georgia 30722
or at such other place as Holder shall notify Maker in writing.
Interest shall accrue on $385,000 of the principal balance of this Note as
the rate of "Prime" (as defined below) plus one-half of one percent (0.5%) per
annum. Interest shall accrue on the remaining $900,000 of the principal balance
of this Note at the rate of Prime plus two percent (2%) per annum. Interest
accrued and unpaid shall be due on the first day of each April, July, October
and January on any portion of the principal balance which remains unpaid.
"Prime" shall refer to the rate published in the Eastern edition of the Wall
Street Journal as the prime rate, adjusting daily, the highest such rate
applying if more than one prime rate is published.
This Note shall mature on the second anniversary hereof at which time the
entire remaining balance with all accrued and unpaid interest shall be due and
payable. Maker reserves the right to prepay this note in whole or in part
without premium or penalty. All payments of principal shall first be applied to
the portion of the principal balance outstanding that accrues interest at the
rate of Prime plus one-half of one percent (0.5%) per annum until the principal
balance is reduced to $900,000. All payments hereunder shall be in lawful
currency of the United States.
This Note is secured by a certain Margin Stock Pledge Agreement of even
date herewith, the terms of which are incorporated by reference herein as if set
forth in full.
If any payment under this Note is not received when due, then if Maker has
not made the payment within ten (10) days after receipt by Maker of written
notice from Holder of the failure to have made such payment or if any default
should occur under the Margin Stock Pledge Agreement which is not cured in
accordance with the terms thereof, then the entire unpaid principal balance of
this Note and all accrued and unpaid interest may, and without notice or further
grace period to cure may, at the option of Holder, be accelerated and shall
thereupon become immediately due and payable and may be collected forthwith. If
Holder shall fail to exercise any default right when entitled to do so or if
Holder shall grant any indulgence to Maker, such event shall not constitute a
waiver of any of Holder's rights or remedies as to any future or continuing
default.
If this Note is accelerated, then interest rate on the unpaid balance of
this Note shall begin to accrue at the rate that is two percent (2%) per annum
in excess of the otherwise applicable rate. If this Note is referred to an
attorney at law for collection, Maker shall pay all costs of collection and
court costs, including attorneys fees and costs of collection in the amount of
the actual attorney's fees and costs incurred by Holder in collection.
The Maker hereby waives and renounces all homestead and exemption rights
under the Constitution and laws of the United States and the State of Georgia as
against the debt evidenced by this Note and any renewal, modification or
extension thereof, and each further waives presentment, demand for payment,
protest and notice of non-payment.
Time is of the essence of each and every provision of this Note. This Note
shall be construed and enforced according to the laws of the State of Georgia.
Any notice or demand which the Holder may desire to give to Maker shall be
deemed received if made in writing and either personally delivery or mailed by
U.S. certified mail return receipt requested with adequate prepaid postage
affixed, or by overnight next day air courier service to such address. Notices
shall be sent to the address of Maker given below or such other address as Maker
shall have specified by ten (10) days' prior written notice and shall only be
effective when delivered or when delivery is refused as shown by the return
receipt or airbill.
<PAGE>
This Note is assignable by Holder provided that Maker is given prior
written notice of the address and payee for payments due hereunder.
IN WITNESS WHEREOF, the undersigned Maker has signed sealed and delivered
this Note on the date written above. MAKER:
/s/ Peter D. Anzo
-----------------
/s/ Martin H. Petersen PETER D. ANZO
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WITNESS
MAKER'S ADDRESS:
3111 Paces Mill Road, Suite A-200
Atlanta, GA 30339
MARGIN STOCK PLEDGE AGREEMENT
-----------------------------
THIS STOCK PLEDGE AGREEMENT ("Agreement") is made as of the 1st day of
March, 2000 by Peter D. Anzo ("Pledgor"), in favor of Watts Agent, L.P.
("Lender").
WITNESSETH:
WHEREAS, Pledgor owns common shares of beneficial interest in Vinings
Investment Properties Trust, a Massachusetts Business Trust (the "Vinings
REIT").
WHEREAS, Lender agreed to make a loan (the "Loan") to Pledgor evidenced by
a Promissory Note of even date herewith in the face amount of $1,285,000 (the
"Secured Note") to acquire additional Vinings REIT common shares provided that
569,000 Vinings REIT common shares (the "Pledged Stock") are pledged to Lender
as collateral for the Loan.
WHEREAS, Lender and Pledgor are also parties to that certain Units Purchase
and Sale Agreement of even date herewith with respect to purchase of Series A
Preferred Units in the operating partnership for the Vinings REIT (the "Units
Purchase Agreement") and Lender has required that the Pledged Stock also secure
the obligations of Pledgor under the Units Purchase Agreement.
NOW, THEREFORE, to induce Lender to make the Loan to Borrower, Pledgor
hereby agrees as follows:
1. PLEDGE. Pledgor hereby grants a security interest to Lender in 100% of
the Pledged Stock. Pledgor shall evidence such grant on the face of the
certificate(s) of the Pledged Stock and deliver the same to Lender
contemporaneously herewith. Lender shall hold the Pledged Stock as security for
repayment of the Loan.
2. MARGIN COVENANTS. Pledgor shall maintain margin coverage such that the
"Market Value" (as hereinafter defined) of the Pledged Stock is not less than
200% of the outstanding principal balance of the indebtedness evidenced by the
Secured Note as such value and indebtedness may fluctuate from time to time. In
the event that the Market Value of the Pledged Stock shall be less than 200% of
the outstanding principal balance of the indebtedness evidenced by the Secured
Note for not less than 30 consecutive days, then Lender shall have the right by
written notice (a "Margin Call") to require Pledgor (at Pledgor's option) either
to deliver additional Vinings REIT common shares as Pledged Stock under this
Agreement such that the Market Value of all Pledged Stock shall equal not less
than 200% of the outstanding principal balance of the indebtedness evidenced by
the Secured Note or to make a partial payment of outstanding principal balance
of the indebtedness evidenced by the Secured Note such that the Market Value of
the Pledged Stock shall equal not less than 200% of the outstanding principal
balance of the indebtedness evidenced by the Secured Note as so reduced. For the
purpose of this Agreement, Market Value shall refer to the closing bid price
reported for the Vinings REIT common shares on NASDAQ daily reports of
over-the-counter sales; provided, however, that Market Value shall be the
average of the daily bid and asked prices for Vinings REIT during the thirty
(30) day period prior to the effective date on which the Vinings REIT becomes
ineligible for the NASDAQ over-the-counter market, exclusive of any trade by
Pledgor, Gilbert H. Watts, or their affiliates or controlled entities.
3. VOTES, CONSENTS, WAIVERS AND RATIFICATIONS OF THE PLEDGED STOCK. Unless
an Event of Default (as hereinafter defined) shall be continuing, the Pledgor
shall be entitled to vote any and all of the Pledged Stock and give consents,
waivers and ratifications in respect of the Pledged Stock, provided that no vote
shall be cast, and no consent, waiver or ratification shall be given, which
would be inconsistent with any of the provisions of this Agreement, or any other
instrument or agreement referred to herein.
4. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If any of the following events
(individually herein called an "Event of Default") shall happen, that is to say:
(a) if default shall be made in the payment or performance when due of
any obligation in any document evidencing or securing the Loan, including,
without limitation, the Secured Note; or
(b) if default shall be made in the due observance or performance of
any covenant or agreement on the part of the Pledgor contained in this
Agreement or the Units Purchase Agreement, and such default shall have
continued for a period of ten (10) days after written notice thereof shall
have been given to the Pledgor by the Lender; or
<PAGE>
(c) if Pledgor shall fail to provide additional security or to reduce
the principal balance of the Secured Note in accordance with Section 2
hereof in this thirty (30) days following written demand from Lender then
and in every case,
A. Good title to the Pledged Stock shall totally and
unconditionally pass, at the option of the Lender to be exercised by
notice to the Pledgor, to the Lender.
B. If an Event of Default shall be continuing, in addition to its
rights under this Agreement, the Lender may exercise its rights under
the Georgia Uniform Commercial Code and any other rights existing for
the benefit of Lender at law or in equity, it being expressly agreed
that the Lender may, at its sole option, exercise such rights with
respect to less than all of the Pledged Stock such as, more
specifically, with respect only to distributions and proceeds in
respect of the Pledged Stock, leaving unexercised its rights with
respect to the remainder of the Pledged Stock; provided, however, that
such partial exercise shall in no way restrict or jeopardize the
Lender's right to exercise its rights with respect to all or another
portion of the remainder of the Pledged Stock at a later time or
times. In addition, the Lender may, from time to time, sell, assign
and deliver the Pledged Stock or any interest therein or any part
thereof, at one or more private sales or public auctions, with or
without demand, advertisement or notice of the time or place of sale
or adjournment thereof or otherwise, for cash, on credit or for other
property, for immediate or future delivery, and for such price or
prices and on such terms as the Lender in its sole discretion may
determine, the Pledgor hereby waiving and releasing any and all right
or equity of redemption whether before or after sale hereunder;
provided, that notice of any such private sale or public auction shall
be given to the Pledgor at least ten (10) days before such sale or
action and provided, further, that in the case of any such private
sale, such notice to the Pledgor shall also contain the terms of the
proposed sale, and the Pledgor shall have until the time of said
proposed sale in which to redeem the Pledged Stock to be so sold or to
procure a purchaser willing, ready and able to purchase the Pledged
Stock to be sold on terms more favorable to the Lender than those set
forth in such notice, and if such a purchaser is so produced the
Lender shall sell such Pledged Stock to be so sold to such purchaser.
In the event of any sale hereunder, the Lender shall, after deducting
all costs and expenses of the Lender actually incurred in exercising
its rights hereunder (including, without limitation, reasonable fees
and expenses of counsel for the Lender) and all costs and expenses of
the Lender for the care, safekeeping, collection, sale and delivery of
the Pledged Stock which were actually incurred during the continuance
of any Event of Default, apply the proceeds of the sale to the payment
or reduction, in whole or in part, of the amounts secured by this
Agreement. Any balance thereafter remaining shall be paid to the
person legally entitled thereto. The Lender may bid for and purchase
for its account the whole or any part of the Pledged Stock so sold
free from any such right or equity of redemption.
C. Neither failure nor delay on the part of the Lender to
exercise any right, remedy, power or privilege provided for herein or
by statute or at law or in equity shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, remedy,
power or privilege preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
D. The Pledgor recognizes that, in taking action pursuant to this
Paragraph 4, the Lender may be unable to effect a public sale of all
or of a part of the Pledged Stock by reason of certain requirements
contained in the Securities Act of 1933, as amended, or any similar
federal statute then in effect, or the applicable securities or "blue
sky" laws of one or more other jurisdictions (such act, statute and
laws being herein collectively called the "Securities Act"), but may
deem it necessary or appropriate to resort to one or more private
sales to a restricted group of purchasers who will be obligated to
agree, among other things, to acquire the Pledged Stock for their own
account, for investment and not with a view to the distribution or
sale thereof. The Pledgor agrees that such private sales so made may
be at prices and on other terms less favorable to the seller than if
the Pledged Stock were sold at public sales, and the Lender has no
obligation to delay sale of the Pledged Stock for the period of time
necessary to permit the Company to register the Pledged Stock for
public sale under the Securities Act. The Pledgor agrees that private
sales made under the foregoing circumstances shall be deemed to have
been made in a commercially reasonable manner and waives any claims
against the Lender arising by reason of any such private sale.
<PAGE>
5. PARTIAL RELEASE. In the event that the Market Value of the Pledged Stock
shall exceed 200% of the outstanding principal balance of the indebtedness
evidenced by the Secured Note for 30 consecutive days and no uncured or unwaived
default shall exist under the Secured Note, Pledgor shall have the right by
notice to Lender (a "Release Notice") to have Lender release shares of the
Pledged Stock to Pledgor such that the Market Value of the remaining Pledged
Stock is not less than 200% of the outstanding principal balance of the
indebtedness evidenced by the Secured Note. Release of Pledged Stock pursuant to
Release Notice may occur at any time but not more frequently than four (4) times
in any twelve (12) month period; PROVIDED, HOWEVER, that Lender shall be
entitled to retain $425,000 in market value of Pledged Stock until both the
Secured Note has been paid in full and Anzo has performed its obligations under
the Units Purchase Agreement.
Anything to the contrary notwithstanding, Pledgor shall always be entitled
to release of the A&P, Inc. stock in exchange for a payment of $294,000.
6. NOTICES. All notices, demands, consents, requests and other
communications required or permitted to be made or given hereunder, shall be
given and deemed effective in accordance with the notice provisions of the
Secured Note.
7. AMENDMENT, SUCCESSION AND HEADINGS. Neither this Agreement nor any
provisions hereof may be amended, modified, waived, discharged or terminated
orally, but only by an instrument in writing duly signed by or on behalf of the
Pledgor and the Lender. This Agreement may be assigned by Lender and shall be
binding upon the Pledgor, the Lender and their respective heirs, personal
representatives, successors and assigns. The captions in this Agreement are for
convenient reference only and shall not define or limit the provisions hereof.
8. OBLIGATIONS NOT IMPAIRED. The Pledgor hereby waives diligence,
presentment, demand, protest and notice of any kind whatsoever in respect to the
Loan or the Pledged Stock, as well as any requirement that the Lender exhaust
any right or remedy or take any action in connection therewith or in connection
with this Agreement, or any other instrument evidencing, guaranteeing or
securing the Loan. No right or remedy herein conferred upon or reserved to the
Lender is intended to be exclusive of any other right or remedy, and the Lender
may exercise all rights and remedies given hereunder or now or hereafter
existing at law or in equity. The obligations of the Pledgor hereunder shall not
be affected or impaired by reason of the happening from time to time of any of
the following, although without notice to or the consent of the Pledgor:
(a) the waiver by the Lender of the performance or observance by any
other person or entity with regard to the Loan;
(b) the voluntary or involuntary liquidation, dissolution, sale of all
or substantially all of the assets, marshalling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, winding up, or other
similar proceedings affecting the Pledgor, or any Company;
(c) the release by operation of law or any other person or entity from
the performance or observance of any of the agreements, covenants, terms or
conditions contained in the documents or instruments evidencing or securing
the Loan.
9. FINANCIAL STATEMENTS. Secured Party shall provide Lender with his
current financial statement annually and with copies of the monthly financial
statements for the Vinings REIT, and Lender agrees to maintain the
confidentiality of such financial statements.
10. INVALIDITY. In the event any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall, at the option of the Lender, not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein or therein.
11. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Georgia.
IN WITNESS WHEREOF, the Pledgor has executed this Agreement under seal
as of the date first set forth above.
PLEDGOR:
/s/ Peter D. Anzo
------------------
Peter D. Anzo
AMENDMENT TO THE
MARGIN STOCK PLEDGE AGREEMENT
This Amendment to the Margin Stock Pledge Agreement dated March 1, 2000 by and
among Peter D. Anzo ("Pledgor") and Watts Agent, L.P. ("Lender") is made this
1st day of March, 2000 ("Amendment").
It is hereby agreed that for purposes of Paragraph 2. Margin Covenants of the
above referenced agreement the definition of "Market Value" of the Vinings REIT
Pledged Stock shall be deemed to be $4.00 per common share. Provided however, in
the case of a stock split or reverse stock split the Market Value shall be
adjusted accordingly.
IN WITNESS WHEREOF, the parties hereto have executed and sealed this Amendment
the day and year first written above.
/s/ Stephanie A. Reed /s/ Peter D. Anzo
_______________________________ _____________________________(SEAL)
WITNESS PETER D. ANZO
WATTS AGENT, L.P.
By: Watts Enterprises, Inc., General Partner
/s/ Martin H. Petersen /s/ Gilbert H. Watts, Jr.
______________________________ By: _______________________________
WITNESS Gilbert H. Watts, Jr., President
UNITS PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT is made and entered into this 1st day of March, 2000 by and
among PETER D. ANZO ("Anzo"), a Georgia resident, and GILBERT H. WATTS, JR. a
Georgia resident ("Watts").
W I T N E S S E T H:
WHEREAS, Petersen and Anzo and Watts have determined that they shall
resolve certain business matters among themselves as follows:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. COORDINATION WITH OTHER AGREEMENTS. This Agreement is being entered into
with reference to certain other agreements identified as follows:
(i) A certain $1,285,000 Promissory Note of even date herewith from
Anzo to Watts (the "Margin Loan Note").
(ii) The Agreement and certificate of Vinings Investment Properties,
L.P. dated ___________, 19__ as the same has heretofore or shall hereafter
be amended (the "Operating Partnership Agreement"; and the limited
partnership governed thereby is referred to as "Operating Partnership").
2. CLOSING. Unless otherwise agreed by the parties hereto, a Closing to
effect the purchase and sale contemplated by this Agreement shall occur at 3111
Paces Mill Road, Atlanta, Georgia 30339 at 10:00 a.m. (Atlanta, Georgia time) on
the earlier of the second anniversary hereof or acceleration of the maturity of
the Margin Loan Note due to default thereunder. Anzo shall have the right to
require Closing hereunder at any earlier date. The obligations of the parties
hereto to proceed with closing are conditioned upon each party performing its
obligations hereunder at Closing.
3. DELIVERIES TO ANZO BY WATTS. At Closing, Watts shall deliver to Anzo a
Conveyance of 470,588 Series A Preferred Units in the form attached hereto as
Exhibit "A" and hereby made a part hereof to convey all Series A Preferred Units
in the Operating Partnership now owned by any "Watts Affiliates" (as defined
below) or that is acquired by any Watts Affiliate prior to Closing. For the
purposes of this Agreement, the term "Watts Affiliates" shall refer to Watts,
Watts Agent L.P., any member of Watts family, any assignee or transferee of a
Watts Affiliate, and/or any trust, partnership or other entity established for
the benefit of such persons.
4. PAYMENT BY ANZO TO WATTS. At Closing, Anzo shall pay Watts a purchase
price as follows:
(a) The amount of the purchase price shall be $4.25 for each Series A
Preferred Unit conveyed to Anzo ($2,000,000) plus accrued and unpaid
dividends.
(b) The purchase price shall be paid by wired funds (unless otherwise
agreed by Watts).
5. SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue by reason of
failure to perform all obligations under this Agreement. Therefore, if any of
the parties hereto shall institute any action or proceeding to enforce the
provisions hereof, the defendant or defendants against whom such action or
proceedings is brought hereby waives the claim or defense therein that such
party or parties has or have an adequate remedy at law and such person shall not
urge in any action or proceeding the claim or defense that such remedy at law
exists.
6. MISCELLANEOUS.
(a) NOTICES. All notices, designations, consents, offers, acceptances,
or other communications provided for herein shall be given in writing by
telecopy, overnight air courier service, or by United States registered or
certified mail, postage prepaid, return receipt requested. Such notices
shall be addressed to the parties hereto at the addresses as set forth
below or at such other address as the parties hereto may designate to the
other in writing. Notices shall be deemed received when delivered or when
delivery is refused as shown by the delivery receipt, airbill or telecopy
confirmation. The addresses for notices are as follows:
<PAGE>
Peter Anzo
3111 Paces Mill Road, Suite A-200
Atlanta, Georgia 30339
Telecopy 770-850-0655
Gilbert H. Watts, Jr.
P.O. Box 682
Dalton, Georgia 30722
Telecopy 706-226-4116
(b) INVALID PROVISION. The invalidity or unenforceability of any
provision of this Agreement shall not affect the other provisions hereof,
and the Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted. No provision shall be constructed
against any party by virtue of his having drafted the Agreement or
provision, it being the intent of the parties that this Agreement shall be
considered to have drafted by both parties.
(c) MODIFICATION. This Agreement may be amended or modified only by an
instrument in writing signed by all of the parties hereto. No modification
of this Agreement or waiver of any provision hereof or default hereunder
shall affect the right of any party thereafter to enforce any other
provision or to exercise any other right or remedy in the event of any
other default, whether or not similar.
(d) BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns.
(e) SURVIVAL. All agreements, representations, warranties and
covenants made in this Agreement or contained in any document or other
instrument executed or delivered pursuant to this Agreement for the
transactions contemplated hereby shall survive the execution and delivery
of this Agreement and consummation of the transactions contemplated hereby
and shall thereafter continue and remain in full force and effect.
(f) HEADINGS, COUNTERPARTS, ETC. The headings of the sections and
subparagraphs contained in this Agreement are for the convenience of
reference only and do not form a part hereof and in no way modify the
meaning of such sections or subparagraphs. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an
original. All information given by any party hereto to any other party,
unless otherwise publicly available, shall be considered confidential and
shall be used only for the purpose intended. Variations among pronouns
shall not be relied upon in the interpretation of this Agreement and a
singular number shall include the plural, each gender, the other or neuter,
as the context may require. This Agreement contains the entire agreement of
the parties with respect to the matters herein and any prior oral or
written agreements are deemed merged herein.
(g) GOVERNING LAW. This Agreement and the legal relationships among
the parties hereto shall be governed by and construed in accordance with
the laws of the State of Georgia.
7. VOLUNTARY AGREEMENT. EACH PARTY ACKNOWLEDGES THAT HE HAS READ THIS
AGREEMENT; THAT EACH HAS CONFERRED WITH COUNSEL OF HIS CHOICE CONCERNING ITS
TERMS, CONDITIONS, AND EFFECT BEFORE SIGNING THIS AGREEMENT; AND THAT EACH
ENTERS INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND EACH SIGNATORY HERETO
WARRANTS THAT HE HAS THE AUTHORITY TO EXECUTE THIS AGREEMENT. Each party hereto
represents that the securities that he shall acquire under this Agreement are
being acquired for investment purposes without a view towards further
distribution of the same (except to the extent that such securities are the
subject of an effective federal and state securities registration or exemption
from registration).
IN WITNESS WHEREOF, the parties hereto have executed and sealed this
Agreement the day and year first written above.
/s/ Martin H. Petersen /s/ Peter D. Anzo
_________________________________ ________________________________(SEAL)
WITNESS PETER D. ANZO
/s/ Martin H. Petersen /s/ Gilbert H. Watts, Jr.
_________________________________ ________________________________(SEAL)
WITNESS GILBERT H. WATTS, JR.
REGIONS BANK
PROMISSORY NOTE
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Principal Loan Date Maturity
$500,000.00 02-04-2000 02-04-2001
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References in the shaded area for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
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Borrower: PETER D ANZO Lender: Regions Bank
CHRISTINE ANZO Forsyth Main Office
5405 VERNON WALK NW PO BOX 1800
ATLANTA, GA 30327 515 Atlanta Road
Cumming, GA 30028
Principal Amount: $500,000.00 Initial Rate: 0.750%
Date of Note: February 4, 2000
PROMISE TO PAY. PETER D ANZO and CHRISTINE ANZO ("Borrower") promise to pay to
Regions Bank ("Lender"), or order, in lawful money of the United States of
America, the principal amount of Five Hundred Thousand & 00/100 Dollars
($500,000.00), together with the interest on the principal balance from February
4, 2000, until paid in full.
PAYMENT. Borrower will pay this loan in one principal payment of $500,000.00
plus interest on February 4, 2001. This payment due February 4, 2001, will be
for all principal and accrued interest not yet paid. In addition borrower will
pay regular quarterly payments of all accrued unpaid interest due as of each
payment date, beginning May 4, 2000, with all subsequent interest payments to be
due on the same day of each quarter after that. The annual interest rate for
this Note is computed on a 365/360 basis; that is, by applying the ratio of the
annual interest rate over a year of 360 days, multiplied by the outstanding
principal balance, multiplied by the actual number of days the principal balance
is outstanding. Borrower will pay Lender at Lender's address shown above or at
such other place as Lender may designate in writing. Unless otherwise agreed or
required by applicable law, payments will be applied first to accrued unpaid
interest, then to principal, and any remaining amount to any unpaid collection
costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Regions Financial Corp.
Commercial Base Rate (the "Index"). The Index is not necessarily the lowest rate
charged by Lender on its loans and is set by Lender in its sole discretion. If
the Index becomes unavailable during the term of this loan, Lender may designate
a substitute index after notifying Borrower. Lender will tell Borrower the
current Index rate upon Borrower's request. Borrower understands that Lender may
make loans based on other rates as well. The interest rate charge will not occur
more often than each daily. The Index currently is 8.750% per annum. The
interest rate to be applied to the unpaid principal balance of the Note will be
at a rate equal to the Index, resulting in an initial annual rate of simple
interest of 8.750%. NOTICE: Under no circumstances will the interest on this
Note be more than the maximum rate allowed by applicable law.
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges
are earned fully as of the date of the loan and will not be subject to refund
upon early payment (whether voluntary or as a result of default), except as
otherwise required by law. Except for the foregoing, Borrower may pay without
penalty all or a portion of the amount owed earlier than it is due. Early
payments will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments under the payment schedule.
Rather, they will reduce the principal balance due.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in the Note of
any agreement related to this Note, or in any other agreement or loan Borrower
has with Lender. (c) Any representation or statements made or furnished to
Lender by Borrower or on Borrower's behalf is false or misleading in any
material respect either now or at the time made or furnished. (d) Borrower dies
or becomes insolvent, a receiver is appointed for any part of Borrower's
property, Borrower makes an assignment for the benefit of creditors, or any
proceeding is commenced either by Borrower or against Borrower under any
bankruptcy or insolvency laws. (e) Any creditor tries to take any of the
Borrower's property on or in which Lender has a lien or security interest. This
includes a garnishment of any of Borrower's accounts with Lender. (f) Any of the
events described in this default section occurs with respect to any guarantor of
this Note. (g) A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
indebtedness is impaired. (h) Lender in good faith deems itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid balance on
this Note and all accrued unpaid interest immediately due, without notice, and
the Borrower will pay that amount. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower will also pay Lender that
amount. This includes, subject to any limits under applicable law, Lender's,
costs of collection, including court costs and fifteen (15%) of the principal
plus accrued interest as attorneys' fees, if any sums owing under this Note are
collected by or through an attorney-at-law, whether or not there is a law suit,
and legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. If not prohibited by applicable law. Borrower
also will pay any court costs, in addition to all other sums provided by law.
This note has been delivered to Lender and accepted by Lender in the State of
Georgia. Subject to the provisions on arbitration, this Note hall be governed by
and construed in accordance with the laws of the State of Georgia.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all IRA and Keogh accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on this Note against any and all such accounts.
COLLATERAL. This Note is secured by REAL ESTATE AS DESCRIBED IN DEED TO SECURE
DEBT DATED FEBRUARY 4, 2000 TO REGIONS BANK. PROPERTY LYING AND BEING IN LAND
LOT 174, 17TH DISTRICT, FULTON COUNTY, GEORGIA, BEING LOT 6A, VERNON WALK
SUBDIVISION; 1990 FORD EXPLORER UTILITY, VIN #1FMDU35P8TZB92132; 1997
JAGUAR XK8 CONVERTIBLE VIN #SAJGX2744VC002467; 1995 BMW 740IL 4 DOOR VIN
#WBAGJ6323SDH31741.
ARBITRATION. Lender and Borrower agree that all disputes, claims, and
controversies between them, whether individual, joint, or class in nature,
arising from this Note or otherwise, including without limitation contract and
tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association, upon request of either party. No act to take or dispose
of any collateral securing this Note shall constitute a waiver of this
arbitration agreement. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order; invoking a power of sale under any deed
of trust or mortgage: obtaining a writ of attachment or imposition of a
receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process a pursuant
to Article 9 of the Uniform Commercial Code. Any disputes, claims, or
controversies concerning the lawfulness or reasonableness of any act, or
exercise of any right, concerning any collateral securing this Note, including
any claim to rescind, reform, or otherwise modify any agreement relating to the
collateral securing this Note, shall also be arbitrated, provided however that
no arbitrator shall have the right or the power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this Note shall preclude any party
from seeking equitable relief from a court of competent jurisdiction. The statue
of limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in action brought by a party shall be applicable in any
arbitration proceeding, and the commencement of an arbitration proceeding shall
be deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement
of this arbitration provision.
YEAR 2000 WARRANTY. Borrower warrants and represents that Borrower has (i)
undertaken a detailed inventory, review, and assessment of all areas within its
business and operations that could be adversely affected by the failure of
Borrower to be Year 2000 compliant on a timely basis, (ii) developed a detailed
plan and timeline for becoming Year 2000 compliant on a timely basis, (iii)
implemented and will continue to implement that plan in accordance with the
timeline in all material respects, and (iv) evaluated and will continue to
evaluate, by written inquiry to each of its key suppliers, vendors, and
customers as to whether such persons will, on a timely basis, be Year 2000
compliant. All hardware, software and equipment utilized by Borrower in conduct
of its business ("System") will record, store process, and present calendar
dates falling on or after January 1, 2000, and all information pertaining to
such calendar dates, in the same manner and with the same functionality as the
System does respecting calendar dates falling before December 31, 1999. Further,
Borrower warrants and represents that the System has or shall have all
appropriate century-aware or Year 2000 compliant data. Borrower also warrants
and represents that the data-related user interface functions, data-fields, and
data-related program instructions and functions of the System include or shall
include the indication of the century.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and other persons who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, protest and notice of dishonor. Upon any change
in the terms of this Note, and unless otherwise expressly stated in writing, no
party who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties waive any right to
require Lender to take action against any other party who signs this Note as
provided in O.C.G.A. Section 10-7-24 and agree that Lender may renew or extend
(repeatedly and for any length of time) this loan, or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect Lender's
security interest in the collateral; and take any other action deemed necessary
by Lender without the consent of or notice to anyone. All such parties also
agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several.
IN WITNESS WHEREOF, THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED, WHO
ACKNOWLEDGES A COMPLETED COPY HEROF.
BORROWER:
/s/ Peter D. Anzo /s/ Christine Anzo
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PETER D ANZO CHRISTINE ANZO
